Decided on October 06,1955

STATE Respondents


- (1.) THIS reference arises out of a revision petition against an order dated 29-6-1950 of the Additional District Magistrate, Jhabua, cancelling the bail of the applicant Champalal and ordering his rearrest. The applicant Champalal was arrested on 9-10-49 in connection With offences under Sections 395, 397 398, 126, 120 (b), 148 and 332 read with Section 109, I. P. C. A 'challan against him for these offences was filed on 31-12-49 in the Court of the Additional District Magistrate, Jhabua. The accused then applied to the Magistrate as also to the Sessions Judge, Jhabua, for being released on bail, but his applications were rejected. Ultimately the applicant was ordered to be released on bail by my learned brother Mehta J. The order dated 23-5-1949 directing the release of the accused on bail also mentioned that: in case the accused applicant tries to tamper with the prosecution evidence for which there must be definite proof, the trial Court will be at liberty to cancel his bail bond. In accordance with this order applicant was released on bail. But on 21-6-1950 the prosecution presented an application to the Additional District Magistrate, Jhabua for the cancellation of bail on the ground that the accused was tampering with the prosecution witnesses. The Additional District Magistrate after recording the evidence of some witnesses found that the applicant was tampering with the prosecution Witnesses and on 29-6-50 ordered the cancellation of the bail and rearrested the applicant.
(2.) THE question, that arises for determinetion in this reference, and on which alone arguments were addressed at the Bar, is, whether in the above circumstances the Additional District Magistrate had the power to cancel the bail granted by this Court on finding that the accused was tampering with the prosecution witnesses. The contention of Mr. Hazarilal Sanghi, who appeared for the applicant, is that Sections 497 and 498, Criminal P. C. must be read together, and that, when a person is directed to be admitted to hail by this Court, the provisions of Sub-section 5 of Section 497 of the Code would apply and, therefore, the bail can be cancelled only by this Court. It was argued that Sections 497 and 498 of the Code do not confer on the Magistrate the power to cancel the bail granted by this Court and that when the Magistrate does not possess that power, no suggestion or direction given by this Court under Section 561a of the Code could confer on the Magistrate a power to cancel the ball granted by this Court. In support of his contentions Mr. Sanghi relies mainly on certain observations of their Lordships of the Privy Council in - 'jairam Das v. Emperor' AIR 1945 PC 94 (A) The observations on which reliance has been placed on behalf of the applicant are these: The High Court either does possess a power to grant bail in the given circumstances or it does not. If it possesses the power, it possesses it independently of any suggestion or direction given by their Lordships. If it does not possess, no suggestion or direction made or given by their Lordships could confer such a power. The Privy Council further observed in 'jairam Das v. Emperor (A)' that: In truth the scheme of Chapter XXXIX is that Sections 496 and 497 provide for the granting of bail to accused persons before trial and the other sections of the chapter deal with matters ancillary or subsidiary to that provision. The only provision in the Code which refers to the grant of bail to a convicted person is to be found in Section 426. . . . Finally their Lordships take the view that Chapter XXXIX of the Code together with Section 426 is, and was intended to contain a complete and exhaustive statement of the powers of a High Court in India to grant bail, and excludes the existence 01 any additional inherent power in a High Court relating to the subject of bail.
(3.) THE learned Advocate General, on the other hand, contends that Section 498 of the Code is quite independent of Section 497 and is not controlled by Section 497; that the power conferred by Sub-section 5 of Section 497 to cancel bail and rearrest of an accused is expressly limited to cases in which the accused has been released under Section 497 of the Code and that Sub-section 5 of Section 497 does not apply to an accused person who has been released on hail under Section 498 of the Code. It was contended that as Section 498 of the Code does not make any provision for the cancellation of bail and as there is no special provision to the contrary, the High Court can under Section 561 of the Code make an order directing the cancellation of bail and rearrest of the accused person in order to see that the ends of Justice are not defeated. It was said that in giving the liberty to the Magistrate to cancel the bail in the event of the accused person being found tampering with the prosecution witnesses the High Court has not in any way delegated its power to cancel the ball to the Magistrate or conferred power on the Magistrate which he did not possess but has simply made a conditional order of bail which was to be operative only so long as the accused did not indulge in certain specified activities and that such a qualified order of bail could be made by the High Court under Section 498 read with Section 561a of the Code.;

Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.