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Criminal Miscellaneous No. 183 of 1950. D. B. decided the reference on 22nd May, 1950.
This case was referred by Mr. Muhammad Munir, Chief Justice, on the 30th March 1950, to the Division Bench consisting of Mr. Justice Muhammad Sharif and Mr. Justice M. R. Kayani.
Petition under section 498/439, Criminal Procedure Code, praying that the order of Sessions judge, Montgomery, dated the 16th March 1950, be set aside and the petitioners be released on bail.
, Ss. 497 (5), 498, 439 and 561‑A‑Concellation of bail‑Whether Sessions judge could cancel bail granted by him under section 498‑‑Powers of High Court.
Per Muhammad Sharif, J.‑‑The powers to grant bail by the High Court or Court of Session under section 498, .Criminal Procedure Code, are very wide. These may be exercised at any stage in a pending case, uncontrolled by any of the limitations mentioned in section 497. There is, however, under this section no corresponding power to cancel bail. Whenever, therefore, bail is granted by the Sessions judge under section 498, he cannot countermand his own order, and the High Court, as a Court of revision, alone shall have the power to do it. Similarly, where the bail was granted by the High Court; it has no power to cancel it under section 498, and resort must be had to its inherent powers under section 561-A, Criminal Procedure Code.
The Legislature has intentionally placed difficulties in the way of the cancellation of bail where it was once granted.
This, however, might sometimes lead to a curious position. A Magistrate holding the inquiry or trial might at a subsequent stage of the inquiry or trial withdraw his own order of bail, but the Sessions judge who in the course of the inquiry or trial in the lower Court, might have allowed bail under the influence of the consideration relevant under section 497, Criminal Pro cedure Code, would have no such powers. His action was under section 498 which knows of no cancellation of bail. This apparent anomaly is for the benefit of the accused.
‑As a Court, that can release a person on bail under section 497, the Court of Session has power only after the committal of the accused, but not before. If the release by the Court of Session took place before com mittal, it must have been under the' wide powers conferred by section 498, but that section does not provide for the cancellation of bail, and as subsection (5) of section 497 clearly provides for the re‑arrest of a person "released under this section," it is reasonable to assume that section 498 was not intended to give any power of re‑arrest.
Except where a power is inherent in a Court (as in the High Court) it cannot be argued that if a Court has power to do a thing, the power to undo is implied in it. There is no provision analogous to that o section 21 of the General Clauses Act of 1897‑which says that the power to issue a notification, order, rule or bye‑law includes a power, to rescind or modify it‑by which a Court is empowered to cancel its own order.
S. Mohsin Shah, for Petitioners.
Ch. Muhammad Sharif, Assistant to Advocate‑General,' for Crown.
‑Could the Sessions judge cancel the bail granted by him, is the question to be decided in this application. The applicants, six in numbers, along with five others have been prosecuted on a charge of murder and the inquiry is pending before the Committing Magistrate. The names of the applicants were not mentioned in the first information report lodged about the crime. On application to the learned Sessions judge, they were released on bail on 16th of February 1950. At that time the evidence of the prosecution had not begun to he recorded. This started from 13th of March 1950 and on that clay the evidence of seven witnesses was taken down. They did implicate the applicants along with the others mentioned above.
On 16th of March 1950 an application was presented on behalf of the Crown that the bail of the six applicants be cancelled on the ground that a large number of witnesses had deposed against them and that the applicants were trying to subron the witnesses. The learned Sessions judge accreted the petition of the Crown, cancelled the bail‑bonds and directed that the applicants be taken into custody. They have now moved this Court.
One of the grounds taken in the petition is that it was not open to the Sessions judge to cancel his previous order of bail and the order was, therefore, illegal. The petition came up in the first instance before the Hon ble the Chief Justice. In view of the importance of the question arising rind the frequency with which it usually arises, the law point involved was referred to the decision of .a Division Bench.
It was contended by the learned counsel for the applicants that a Sessions judge had the power under section 498 of the Code of Criminal Procedure to grant bail in a non‑bailable, offence, but once it was done, he could not rescind his own order. Reference was maids to A. I. R. 1932 Allahabad 534, A. I. R. 1948 Allahabad 366, A. I. R. 192 Nagpur and A. I. R. 1945 Madras 250.
In A. I. R. 1932 Allahabad 534 the bail was granted by the High Court and the application for cancellation by the Crown was also made to the same Court. It was held that the High Court is not specifically empowered by section 498 to cancel hail granted by itself ; but under the wide powers with which it is endowed by section 561‑A, it can direct the arrest of a person who has been released on bail under its orders, for the reason that there do now appear to be reasonable grounds for believing that he has committed a non‑bailable offence.
In A. I. R. 1948 Allahabad 366 (F. B.) the case was pro ceeding before the Committing Magistrate. Two of the accused were released on bail by order of the High Court and one by that of the Sessions judge. When the Magistrate committed the applicants to the Court of Session, he cancelled their bail and took them into custody. The Sessions judge refuse to grant bill on the ground that they had been charged with a non bailable offence and that the Government Pleader apprehended that they were, if released on bail, likely to tamper with the prosecution evidence. It NN as contended that when bail has been granted by the High Court or the Court of Session, a Subordinate Court was not empowered to cancel it at a subsequent stage in the proceedings. It was held that the Magistrate had no power to canoe, the bail, which had been granted to two of the appli cants by the High Court and to the third applicant by the Court of Session a Mathura. The matter would no doubt have been different if the High Court or the Court of Session .had specified in the order passed by it that the order granting bail to accused was a temporary one and that it was open to the Magistrate to rec onsider the matter at a certain stage in the proceedings.
In A. I. .R. 1945 Madras 250, a Single Bench decision, the accused were refused bail by the Presidency Magistrate but were enlarges on bail by the High Court pending the investigation of the case against them. An application was made by the Crown to the High Court for cancellation of the bail supported by affidavit. It stated that in addition to the material available at the time when these respondents were arrested and released on bail, further evidence had been obtained showing that these respondents were active members of the conspiracy and that they hired other members of it to murder the deceased. The learned Crown Prosecutor stated before the Court that there was no clear and cogent evidence available in proof of the guilt of the respondents, and he pressed for the revocation of the previous orders granting bail and the re‑arrest and committal of the respondents to custody.
The application was made under section 497, subsection (5) of the Code of Criminal Procedure. The main objection taken for the respondents was that the power conferred by section 497 (S), Criminal Procedure Code, to cancel bail and re-arrast, an accused was expressly limited to cases in which the accused had been released under section 497 of the Code, and that the provisions of clause (5) of this section had no application to an accused person who had been relased on bail under section 498. On the facts, it was considered clear that the respondents were not released on bail under section 497 of the Code, which applied only when a person was released on bail at the time of his arrest or by a Court before whom he appeared or was produced at the time of his remand, inquiry or trial, but under section 498 of the Code after their prior application had been refused by the Pre sidency Magistrate. It was held that the High Court could not interfere under section 497, subsection (5) but had adequate juris diction under section 561‑A, Criminal Procedure Code, to continue or discontinue the order granting bail which enured for a limited period only, 'that is, pending the investigation by the police. The bail was ordered to be cancelled.
In A. 1. R. 1925 Nagpur 228 the case was pending before the Sub‑Divisional Magistrate. Bail was allowed by the Sessions judge who further directed that the charge under section 376 should be tried separately if the prosecution or the Magistrate so wished. It was done and a separate case under section 376 was started. An application for bail was made. It was rejected by the Sub‑Divisional Magistrate. An independent application was made under section 498 to the Court of the Additional Sessions Judge. He allowed bail. A criminal revision was filed against this order by the Government.
It was argued that under section 497, subsection (5) the powers of the High Court are confined to cases of persons released by the trial Magistrate and under section 498 the High Court can only release accused on bail and cannot order the arrest and commission to custody of persons already released on bail by the Sessions judge. The High Court, it was urged, had no jurisdiction to entertain an application under section 497 (5) or section 498 against‑an order granting bail passed by a Sessions judge in a case pending before a Sub‑Magistrate. The learned judge recognised the force of these contentions and was inclined to the view that the applications for revision as laid down under section 497, subsection (5) were not maintainable, as also under section 498 as it stood, but it was held that this did not deprive the High Court from exercising power of interference with orders made in proceedings for bail when such proceedings were proved to be illegal.
The provisions regarding bail in non‑bailable cases are contained in sections 497 and 498, Criminal Procedure Code. The relevant portions are reproduced below :‑
497. (1) "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, but 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 transportation for life Provided that the Court may direct that any person under the age of sixteen years, or any woman or any sick or infirm person accused of such an offence be released on bail.
(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has com mited a non‑bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) An officer or a Court releasing any person on bail under subsection (1) or subsection (2) shall record in writing his or its reasons for so doing.
(4) If at any time after the conclusion of the trial of a person accused of a non‑bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
(5) A High Court or Court of Session and, in the case of a person released by itself, any other Court, may cause any person who has been released under this section to be arrested and may commit him to custody".
498. "** the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced".
Section 497 was re‑cast in 1923. The members of the Selected Committee observed :‑
"What we have done is to allow the Court or police‑officer to release on bail in a lion‑bailable case unless there appear to be reasonable ground for believing that the accused has been guilty of an offence punishable with death or transportation and as some safeguard against this we have provided for a review by the Sessions Court or the High Court of any order admitting to bail in a non‑bailable case .
On a careful analysis of section 497, Criminal Procedure Code, the following propositions emerge :‑
(1) Non‑bailable offences are divided into two categories
(a) offences punishable with a penalty short of death or transportation for life, and
(b) offences punishable with death or with transportation for life.
(2) In the cases falling under category (a) above, there is full and unfettered discretion tc take bail.
(3) In the cases falling: under category (b) above, the power to release an accused person on bail is subject to the condition that there (to not appear reasonable ground: for believing that he has committed the offence. The condition may, however, be relaxed in the case of ; person below the age of 16 years or a woman or a sick of infirm person accused of the offence.
(4) The power to release on bail may be exercised by an officer incharge of a police station if the accused wad'' arrested or detained without warrant, evidently before the case is sent up to, the Court after investigation.
(5) The power to release on bail may be exercised by the Court when the accused appears or is brought before it, whether during investigation or otherwise.
(6) Where it appears that there are not reasonable grounds for believing that the accused has committed a non‑bailable offence, but further inquiry is still considered necessary, the accus ed shall be released
(i) during investigation by the officer in charge of the police station, and
(ii) during inquiry or trial, by the Court holding the inquiry or trial, vide subsection (2).
(7) Where the Court is of opinion, after the conclusion of a trial, that there are reasonable grounds for believing that the accused is not guilty of any non‑bailable offence, he shall be released on bail till the delivery of the judgment, vide sub section (4).
(8) Subsection (5) deals with the cancellation of the bail granted under any of the circumstances mentioned above in the following cases :‑
(a) Where the accused was released on bail by the Court holding the inquiry (aprarently in cases exclusively triable by the Sessions Court). or the trial, he may be re‑arrested and committed to custody at any subsequent stage of the inquiry or the trial, i.e., before the inquiry or the trial concludes;
(b) where the Court holding the inquiry or the trial had not itself released the accused on bail, the order of cancellation cannot be passed by it, but it may be passed by the Court of Session or by the High Court. The power appears to be con current.
(9) Section 497 primarily addresses itself to the Court of a Magistrate, either in his capacity as a committing Court or as a trial Court. A case triable exclusively by a Court of Session may be committed to that Court and, in such a case, a question may arise whether the Sessions Court has or has not the power under section 497 to release on bail an accused person standing trial before it. There is apparently nothing to prohibit the Sessions judge from taking bail if in his opinion the conditions enumerated in any of the subsections (1), (2) and (3) of section 497 are fulfilled. He need not go to section 498 for that purpose. The Sessions judge shall then be the Court before which the accused has appeared or is brought for trial. This would be evident from the identical language employed in section .271, Criminal Procedure Code, when the trial before the Sessions judge commences. In such a case, where the Sessions judge himself has allowed bail, there should be nothing in his way to council the bail at a subsequent stage of the trial. It does not stand to reason that a Magistrate may cancel the bail allowed by him and a Sessions Court, which is admittedly a Court of superior jurisdiction, should be denied those powers.
The powers to grant bail by the High Court or Court of Session under section 498, Criminal Procedure Code, are very wide. These may be exercised at any stage in a pending case, uncontrolled by any of the limitations mentioned in section 497. There is. however, under this section no corresponding power to cancel bail. Whenever therefore bail is granted by the Sessions judge under section 498. he cannot countermand his own order, and the High Court, as a Court of revision alone shall have the power to do it: Similarly, where the bail was granted by the High Court, it has no power to cancel it under section 498, and resort must be had to its inherent powers under section 561‑A, Criminal Procedure Code.
There is yet another kind of case which may now be considered. A Sessions case is being inquired into by the committing Magistrate or a non‑bailable offence is being tried by him. The bail was not allowed by the Magistrate or refused by him, and on application by the accused, it was allowed by the Sessions Judge. The Sessions Judge could only act under section 498, Criminal Procedure Code, and it would not, therefore, be open to him to cancel the bail during the inquiry or the trial before the Magistrate, and the High Court alone has the power to interfere with the order of the Sessions Judge. Where, however, the case has been actually committed to the Court of Session and' the Sessions Court is seized of the case, it has the same powers in the matter of bail as any other trial‑ Court has under section 497, Criminal Procedure Code.
A careful persual of the sections 497 and 498 reveals that the Legislature has intentionally placed difficulties in the way of the cancellation of the bail where it was once granted.
Sometimes a curious position might result. A Magistrate holding the inquiry or trial might at a subsequent stage of the, inquiry or trial withdraw his own order of bail, but the Sessions judge who in the course of the inquiry on trial in the lower, Court, might have allowed bail under the influence of the consideration relevant under section 497, Criminal Procedure Code, would have no such powers. His action was under section 4911 which knows of no cancellation of bail. This apparent anomaly is for the benefit of the accused.
In the present case, the accused were released on bail by the Sessions judge at a time when the committal proceedings were still pending before a Magistrate. The Sessions judge passed the orders and could pass them only under section 498, Criminal Procedure Code, and as such it would be beyond his powers to cancel his own order of bail as section 498 does not make any provision for cancellation of bail. The order dated 16th of March 1950 of the learned Sessions judge, therefore, was ultra vices.
The case will now go back to the learned judge in Chambers to see for himself whether it is a fit case in which the High. Court should or should not cancel the order of bail.
22nd May, 1950.
‑The view that we have taken of the scope of section 497 vis-a‑vis the Sessions Judge is primarily bossed on the words "appears or is brought before a Court" occurring in subsection (1), and as subsection (2), (3) and (4) refer only to "such" Court or the Court acting under subsection (1), the question to be determined is: Which is the Court before which the person accused appears or is brought
A person accused, of an offence would be said to appear before the Court either if he has already been bailed out or if the object of his appearance is to seek bail before he is actually arrested. In the Court of a Magistrate in a non‑bailable case, the first appearance would clearly be to seek bail, for if he has already been bailed out, the question of bail would not arise.
Such person is "brought before a Court" by another agency the police‑either to obtain a remand, or, if the investigation is complete, to answer the charge.
At first sight, therefore, the Court in which an accused person appears or to which he is brought would be the Court competent to take cognizance of the offence; in other words, the Court of a Magistrate, not that of the Sessions Judge, for the Sessions judge does not take cognizance of the case a until it is committed to his Court. From the stage of committal, however, the Court of Session would also be the Court before which the accused appears or is brought, and the Sessions Judge would thereafter have power the grant bail under the first four subsections of section 497 or, under subsection (5), to cancel bail granted by himself. Originally I was doubtful whether an accused person committed to the Court of Session could‑be properly‑said to appear or be brought before that Court, but a reference to section 271 showed that NN hen the of Session is ready to commence the trial, the accused r or be brought before it, and the charge 0iall be in Court and explained to him.
AS a Court, therefore, that can release a person on bail under section 497, the Court of Session has power only after the committal of the accused, but ‑not before. If the release by the Court of Session took place before committal, it must have been under the wide powers conferred by section ‑193, but that section does not provide for the cancellation of bail, and as subsection (5) of section 497 clearly provides for the re arrest of a person "released under this section", it is reasonable to assume that section 498 was not intended to give any power of re‑arrest.
Except where a power is inherent in a Court (as in the High Court), it cannot be argued that if a Court has power to do a thing, the power to undo is implied in it. There is no provision analogous to that of section 29 of the General Clauses Act, of 1897‑which says that the power to issue a notification, order, rule or bye‑law includes a power to rescind. or modify it‑by, which a Court is empowered to cancel its own order.
Announced.
A. H Reference answered
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