TMI Blog1958 (2) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant before the same Court invoking its inherent power under s. 561 A of the Code of Criminal Procedure. Chagla C.J. and Datar J. who heard these applications took the view that, under s. 561A of the Code of Criminal Procedure the High Court had inherent power to cancel the bail granted to a person accused of a bailable offence and that, in a proper case, such power can and must be exercised in the interests of justice. The learned Judges then considered the material produced before the Court and came to the conclusion that, in the present case, it would not be safe to permit the appellant to be at large. That is why the application made by the complainant invoking the High Court's inherent power under s. 561A of the Code of Criminal Procedure was allowed, the bail-bond executed by the appellant was cancelled and an order was passed directing that the appellant be arrested forthwith and committed to custody. It is against this order that the appellant has come to this Court in appeal by special leave. Special leave granted to the appellant has, however, been limited to the question of the construction of s. 496 read with s. 561A of the Code of Criminal Procedure. Thus the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first day fixed for taking evidence in the case and it provides that such person shall, if he is in custody during the whole of the said period, be released on bail unless for reasons to be recorded in writing the magistrate otherwise directs. The last sub-section confers on the High Court and the Court of Session, and on any other court in the case of a person released by itself, power to direct that a person who has been released on bail under any of the provisions of this section should be arrested and committed to custody. Section 498(1) confers on the High Court or the Court of Session power to direct admission to bail or reduction of bail in all cases where bail is admissible under Sections 496 and 497 whether in such cases there be an appeal against conviction or not. Sub-section (2) of s. 498 empowers the High Court or the Court of Session to cause any person who has been admitted to bail under sub-s. (1) to be arrested and committed to custody. There is one more section to which reference must be made in this connection and that is s. 426 of the Code. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is a consideration on which Shri Purushottam, for the appellant, has very strongly relied. 4. Shri Purushottam has also emphasized the fact that, whereas legislature has specifically conferred power on the specified courts to cancel the bail granted to a person accused of a non-bailable offence by the provisions of s. 497(5), no such power has been conferred on any court in regard to persons accused of bailable offences. If legislature had intended to confer such a power it would have been very easy for it to add an appropriate sub-section under s. 496. The omission to make such a provision is, according to Shri Purushottam, not the result of inadvertence but is deliberate; and if that is so, it would not be legitimate or reasonable to clothe the High Courts with the power to cancel bails in such cases under s. 561A. It is this aspect of the matter which needs careful examination in the present case. 5. Section 561A was added to the Code in 1923 and it purports to save the inherent power of the High Courts. It provides that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused persons. Every criminal trial begins with the presumption of innocence in favour of the accused; and provisions of the Code are so framed that a criminal trial should begin with and be throughout governed by this essential presumption; but a fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. The test of fairness in a criminal trial must be judged from this dual point of view. It is therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without any inducement or threat either from the prosecution or the defence. A criminal trial must never be so conducted by the prosecution as would lead to the conviction of an innocent person; similarly the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender. The acquittal of the innocent and the conviction of the guilty are the objects of a criminal trial and so there can be no possible doubt that, if any conduct on the part of an accused person is likely to obstruct a fair trial, there is occasion for the exercise of the inherent power of the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, the argument no doubt is prima facie attractive; but a close examination of the provisions of s. 496 would show that there is no conflict between its provisions and the exercise of the jurisdiction under s. 561A. In dealing with this argument it is necessary to remember that, if the power under s. 561A is exercise by the High Court, the bail offered by the accused and accepted by the trial court would be cancelled and the accused would be ordered to be arrested forthwith and committed to custody. In other words, the effect of the order passed under s. 561A, just like the effect of an order passed under s. 497(5) and s. 498(2), would be not only that the bail is cancelled but that the accused is ordered to be arrested and committed to custody. The order committing the accused to custody is a judicial order passed by a criminal court of competent jurisdiction. His commitment to custody thereafter is not by reason of the fact that he is alleged to have committed a bailable offence at all; his commitment to custody is the result of a judicial order passed on the ground that he has forfeited his bail and that his subsequent conduct showed that, pending the trial, he cannot be allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to cancel bail in regard to cases of persons accused of bailable offences where such persons have been admitted to bail by the High Court or the Court of Sessions under s. 498(1). The result is that with regard to a class of cases of bailable offences falling under s. 498(1), even after the accused persons are admitted to bail, express power has been conferred on the High Court or the Court of Sessions to arrest them and commit them to custody. Clearly then it cannot be said that the right of a person accused of a bailable offence to be released on bail cannot be forfeited even if his conduct subsequent to the grant of bail is found to be prejudicial to a fair trial. 9. It would also be interesting to notice that, even before s. 498(2) was enacted, there was consensus of judicial opinion in favour of the view that, if accused persons were released on bail under s. 498(1), their bail-bond could be cancelled and they could be ordered to be arrested and committed to custody under the provisions of s. 561A of the Code [Mirza Mohammad Ibrahim v. Emperor AIR1932All534 , Seoti v. Rex AIR1948All366 , Bachchu Lal v. State AIR1951All836 , Munshi Singh v. State AIR1952All39 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tention is sound, it would lead to fantastic results. The argument is that a person accused of a bailable offence has such an unqualified right to be released on bail that even if he does his worst to obstruct or to defeat a fair trial, his bail-bond cannot be cancelled and a threat to a fair trial cannot be arrested or prevented. Indeed Shree Purushottam, went the length of suggesting that in such a case the impugned subsequent conduct of the accused may give rise to some other charges under the Indian Penal Code, but it cannot justify his re-arrest. Fortunately that does not appears to be the true legal position if the relevant provisions of the Code in regard to the grant of bail are considered as a whole along with the provisions of s. 561A of the Code. 11. It now remains to consider the decision of the Privy Council in Lala Jairam Das Others v. King Emperor (1945) L.R. 72 IndAp 120, because Shri Purushottam has very strongly relied on some of the observations made in that case. According to that decision, the provisions of the Code of Criminal Procedure confer no power on High Courts to grant bail to a person who has been convicted and sentenced to imprisonment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observations on which Shri Purushottam relied can afford any assistance in deciding the point which this appeal has raised before us. Incidentally we may add that it was as a result of the observations made by the Privy Council in that case that s. 426 of the Code was amended in 1945 and power has been conferred on appropriate courts either to suspend the sentence or to grant bail as mentioned in the several sub-sections of s. 426. That is how s. 426(2A) and (2B) now deal with the subject of bail even though the main section is a part of Chapter XXXI which deals with appeals, references and revisions. 12. We must accordingly hold that the view taken by the Bombay High Court about its inherent power to act in this case under s. 561A is right and must be confirmed. It is hardly necessary to add that the inherent power conferred on High Courts under s. 561A has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. After all, procedure, whether criminal or civil, must serve the higher purpose of justice; and it is only when the ends of justice are put in jeopardy by the co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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