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Criminal Appeal No. 43 of 1955, decided on 9th January 1956.
(On appeal from the order dated the 7th September 1955, the Chief Court of Sind at Karachi, in Revision Criminal Application under section 439, Criminal P. C.).
Ss. 497 & 498 -High Court and Court of Session may cancel bail granted by them under S. 498 in a case pending before a Magistrate‑powers under S. 498 only a corollary to S. 497.
The High Court and the Court of Session have no less power to cancel bail granted by them in a case pending before a Magistrate than the Magistrate himself possesses, for the wimple reason that ail three Courts derive their power from the same statutory provision namely, subsection (5) of section 497, Cr. P. C.
The power conferred upon High Courts and Courts of Session by the latter portion of section 498 is in the nature of a corollary or ridder to the power conferred upon Courts in general by section 497. In other words a High Court or Court of session, when it takes action to grant bail does so under section 496 or 497, read with section 498 and must not be assumed to be drawing its capacity from a source wholly distinct from the two earlier sections.
Action under section 498, Cr. P. C., by a High Court or Court of Session is to be regarded as falling under section 497, Cr. P. C.
Jairam Das v. Emperor A I R 1945 P C 94 rel.
Sanyasayya Naidu 1925 Mad. 1224 approved.
Mirza Muhammad Ibrahim A I R 1932 All. 534 and Krishnan A I R 1945 Mad. 250 disapproved.
Ahmad and others v. Crown P L D 1950 Lah. 280 not good law.
Inordinate delay in inquiry or trial‑Ground for bail.
Riaz Hashmi, Advocate, High Court of West Pakistan (permitted under O. IV, r. 7, F. C. R. 1950) instructed by M. Siddiq, Attorney for Appellant.
Nasir‑ud‑Lain, Advocate, Federal Court, instructed by M. A. Zaidi, Attorney for Respondent.
Date of hearing : 2nd December 1955.
The question which arises for determina tion in this appeal may be stated as follows :‑
"When a Court of Session, grants bail to an accused person in a case pending before a Magistrate, can it cancel the order later "
The question has arisen in the following circumstances. One Gushtasab Khan was an accused person in a case under sections 307 and 420 of the P. P. C., arising out of an incident which occurred in Karachi on the 26th August 1951. He appears to have been arrested almost immediately after, although not on the spot, and it is not alleged that he took part in the incident, but only that he conspired with the others that the assault should be made, and lent them his service revolver for the purpose. (It seems that he was employed in the Royal Pakistan Navy). An interim challan was submitted to the Court on the 28th August 1951, but the final report was not submitted untill the 28th December 1951. It is stated at the bar‑and we note the fact with a considerable feeling of regret that up to the present date, nearly four years after the occurrence, not a single witness has been examined in the case before the Committing Magistrate. This is so; although it appears that in another case relating to an incident in Hydera bad on which the same gang was thought to have been involved, Gushtasab Khan was challaned and ultimately acquitted in appeal by the Sind Chief Court on the 1st May 1953. It is stated that he made many applications for bail without success, and lastly to the Sind Chief Court, being the Sessions Court for Karachi, in May 1955. The mater coming up before Mr. Justice Lari, he granted interim bail on the 4th July 1955 and confirmed the order, after hearing the Public Prosecutor, on the 13th July. Certain of to co‑accused persons who ware involved in a similar case also applied for bail, and their applications coming up before Mr. Justice Muhammad Bakhsh Memon, were dismissed, but the Judge suo mole issued notice to Gushtasab Khan to show cause why bail granted to him should not be cancelled. After proper proceedings, this learned Judge made an order or the 24th August 1955, canceling the bail granted to Gushtasab Khan. The latter moved a revision on the High Court side of the same Court and on the 7th September 1955 the Chief Judge made an order declining to release the accused on bail, but stating that if within, three months the commitment proceedings had not been completed, it would be open to Gushtasab Khan to file a fresh application for bail to the Committing Magistrate "who may if he finds sufficient reasons release the accused on "bail". It is against the latter order that leave to appeal to this Court was granted to the petitioner.
The question turns upon interpretation of two sections of the Criminal Procedure Code, namely, sections 497 and 498. By subsection (1) of section 497 it is provided as follows :‑‑
When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer in charge of a police‑station, or appears or is brought before a. Court, he may be released on bail, bait he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or trans portation for life.
Subsection (5) of the same sections reads as follows :‑‑
"A High Court or Court of Session and, in the case of a person released by itself, any other Cows may rouse arty person who has been released under this section to be arrested and array commit him to custody".
The relevant provision in section 498 is contained in the :following wards :‑
"the High Court or Court of Session may, in any case, whether there be an appeal can conviction or not, direct that any person be admitted to bail, or that the bail required by a police‑officer or Magistrate be reduced:"
At one time, the High Courts in India were inclined to hold that the provisions of section 498 were entirely distinct from those of section 497. In the case of Mirza Muhammad Ibrahim (A I R 1932 All. 534) a learned Single Judge of the Allahabad High Court proceeded on this basis in relation to an order by the High Court itself under section 498, directing the release of person accused in a subordinate Court on bail, to hold that the order was not one under section 497, so that it might have been cancelled under subsection (5) of that section, but that it was clearly an order "actually passed under section 498" the learned Judge proceeded to say that although the High Court was not specifically empowered by section 498 to cancel bail granted by itself, nevertheless it could not be argued that it would be acting improperly in using its wide powers under section 561 to enable it to make an order such as the subordinate Cow, was specifically authorised by subsection (5) of section 49: to make. The same view was taken by a learned single Judge the Madras High Court in the case of Krishnan (A I R 1945 Mad. 250) where an application for bail had been rejected by a Magistrate and the High Court had granted bail. It was held that the release was not under section 49 7 but under section 598, and consequently subsection (5) of section 497, had no application. Nevertheless, the High Court had adequate jurisdiction under section 561‑A; of the Criminal P. C. to cancel bail granted by itself. The view previously taken in the case of Sanyasayya Naidu (1925 Mad. 1224) by a Division Bench composed of two distinguished Judges viz. Courts Trotter, C. J., and Srinavasa Aiyangar, J. that such a case falls clearly within the provisions of section 497, sub‑sections (1) and (5), was expressly overruled.
The foundation of the view upon which the two first mentioned cases were decided was entirely taken away by the judgment of the Judicial Committee in the case of Jairam Das, v. Emperor (AI R 1945 P C 94). The following observation of their Lordships is relevant to the present discussion :‑
"In truth the scheme of Chapter XXXIX is that sections 496 and 497 provide for the granting of bail to accused person before trial, and the other sections of the chapter deal with matters ancillary or subsidiary to that provision".
Their Lordships had been dealing with the specific provisions of section 498, and the above passage must therefore read as conveying the view of the Privy Council that the power conferred upon High Courts and Courts of Session by the latter portion of section 498 was in the nature of corollary or rider to the power conferred upon Courts general by section 497. In other words, a High Court or Court of Session, when it takes action to grant bail does so under section 496 or 497, read with section 498, and must not be assumed to be drawing its capacity from a source wholly distinct from the two earlier sections. The other passage in the judgment of their Lordships which we desire to cite reads as follows :‑
"Chapter XXXIX of the Code together with S. 426 is, and was intended to contain a complete anti exhaustive statement of tile powers of a High Court in India to grant bail, and excludes the existence of any additional inherent power in a High Court relating to the subject of bail."
With special reference to section 561A, the Judicial Com mittee made the following observations :‑
"Section 561‑A of the Code confers no powers. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice."
It thus becomes clear that the earlier view that action by a High Court or a Court of Session acting otherwise than as a Court of original Criminal jurisdiction, for the granting of bail is quite distinct from action to grant bail under section 497, can no longer be sustained. Such action by a High Court or Court of Session is to be regarded as falling within section 497. It seems to us that for this purpose it is not necessary to do more than give the fullest meaning to the words " in any case " occurring in section 498. On this view, it becomes unnecessary for the purpose which the Courts were attempting to carry out in the 1932 Allahabad and the 1945 Madras cases cited above to invoke the jurisdiction if it may be so called, derivable from section 561‑A. It is clear, however, that should the circumstances have been otherwise, the dictum of the Judicial Committee regarding the quality of the provision contained in section 561‑A would clearly stand in the way of the particular process by which the two High Courts in question, found themselves equipped with power to cancel bail granted by themselves in cases pending before a Magistrate. On a simple view of the matter, based upon the conclusions reached in Jairam Das's case by the Privy Council, it would seem that a High Court and the Court of Session have no less power to cancel bail granted by them in a case pending before a Magistrate than the Magistrate himself possesses, for the simple reason that all three Court derive their power from the same statutory provision, namely, subsection (5) of section 497. This view was stated succinctly, yet forcefully, by Courts‑Trotter, C. J. in the 1925 Madras case. It is convenient to state the learned Chief Justice's view in his own words which are as follows:‑--
"In this case five persons were charged with the attempted murder of the Sub‑Collector. The accused applied for bail and ultimately bail was granted, on the information then before him, by my learned brother in this Court. It was first argued that under the Code there was no power inherent in this Court to revise any such grant of bail. I have never been able to see the difficulty. Section 497 (1) of the Code of Criminal Procedure runs as follows:--
"When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail'.
That is what happened here. By subsection (5) of that section, the Court therein described may cause any person, who has been released under this section, to be arrested and may commit him to custody. In the face of that, the argument that there is no power in this Court, whatever change of circumstances may be proved before it, to revise the order granting bail seems to be absolutely untenable. I hold that we have ample jurisdiction to exercise our discretion and order the re‑arrest of any person out on bail, if we feel the circumstances warrant or demand such a course.
It seems to us that in the light of the judgment de livered by the Judicial Committee some twenty years later, the correctness of the opinion of Courts‑Trotter, C. J. is hardly open to question. It is necessary, however, that we should make mention here of a recent case decided in the Lahore High Court, namely, that of Ahmad and others v. Crown (P L D 1950 Lah: 280) which was heard by a Division Bench of two Judges. It does not appear that the effect of the decision of the Privy Council in Jairam Das's case was examined before the learned Judges in the course of the arguments. The conclusions of Muhammad Sharif, J., were as follows. It appeared to the learned Judge that if bail had been refused to an accused person by a Magistrate trying or inquiring into the case, and subsequently bail was granted by the Sessions Judge, such action of the Sessions Judge must be under section 498 of the Criminal Procedure Code and not under section 497. Consequently, the‑"Sessions Judge himself was not competent to cancel such bail as there was no provision for the purpose contained in section 498. Yet, the High Court may cancel the bail acting on the revision side. In such a case, if the Court which granted bail be the High Court then the bail could only be cancelled under the inherent‑powers of the High Court preserved by section 561‑A of the Code. In a separate judg ment Kayani, J. laid stress upon the words " appears or is brought before a Court " contained in subsection (1) of section 497 and concluded that by the employment of these words, the powers under section 497 were limited to Courts of trial or enquiry, and that where the Court grant ing bail is not seized of the case in which the accused appears or is brought' before the ,Court, the wide powers of section 498 must be employed. Because the power of cancellation under subsection (5) of section 497 is confined to persons "released under this section" and because sec tion 498 did not itself provide for cancellation of bail, the learned Judge thought that in the circumstances of the case, the Court of Session, which bad granted bail to a person who was accused in an inquiry pending before a Magistrate, had no power to cancel such bail. The learned Judge further considered that the power to undo the act in question via, the grant of bail, could not be spelt out of the mere power to do the act, but might be derived from inherent powers such as those possessed by a High Court.
It is plain that the view taken by each of the learned Judges in this case cannot consist with the clear conclusions of the Judicial Committee in the case of Jairam Dass (AIR 1945 PC 94), and must therefore be held not to be good law. The correct view, already stated, is that a Court of Session acting as Mr. Justice Muhammad Bakhsh Memon did in the present case, to cancel bail granted by another Judge, also acting as a Court of Session, does so not under section 498, but under section 497, read with section 498, so that the powers conferred by subsection (5) of section 497 are available to a High Court or Court of Session when it grants bail in a case pending before a subordinate Court.
The view of Mr. Justice Muhammad Bakhsh Memon seems to us to be in conformity with the legal provisions, and we accordingly dismiss this appeal.
At the same time, we cannot fail to draw attention forcibly to the inordinate delay extending over four years which has occurred in the commencement of the preliminary processes necessary for bringing the appellant to trial in a competent Court. It might be thought that this delay by itself was a sufficiently powerful element weighing in favour of the grant of bail. It would not in our opinion, be improper to take into account, on the one side, the hesitation of the prosecuting authorities in bringing Gushtasab Khan to justice, and, on the other side, the plain fact that he was being subjected to a form of punishment, albeit mild, in advance of being found guilty. These matters, however, are for the Sessions Court or the inquiring Magistrate to consider, if and when a further application for bail is made by the appellant.
A.H. Appeal dismissed.
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