Union of India and Anr Vs.
The State of Assam  Insc 533 (10 September 2004)
Arijit Pasayat & Prakash
Prabhakar Naolekar Arijit Pasayat, J.
This is an interesting litigation where Union of India has questioned the
stand taken by the State of Assam. State's appeal was accepted by learned
Single Judge of the Guwahati High Court. The controversy lies in a very narrow
compass. The issue is whether an application under Section 438 of the Code of
Criminal Procedure, 1973 (in short the 'Code') could be filed in respect of
offences contemplated under the provisions of Railway Property (Unlawful
Possession) Act, 1966 (in short the 'Act'). A learned Single Judge held that
the offences were bailable after referring to Section 8 of the Act. A review
application was filed for suitable modification on the ground that Section 8 of
the Act has not been properly analysed.
Reliance was placed on a decision of learned Single Judge of the Madras High
Court which was reported in brief in State vs. Sundara Pandian (1979 Crl. Law
Journal NOC 194). The review application was rejected on the ground that a case
for review was not made out and the view originally expressed was correct.
In support of the appeal learned counsel for the Union of India submitted
that the learned Single Judge has not kept in view the provisions contained in
Section 8 in the proper perspective. The High Court has erroneously come to
hold that the accused had a right to get bail provided he was willing to offer
surety/security. It was held that only when the accused is not in a position to
provide security or surety then only he can be sent to the Magistrate having
It was submitted that effect of the proviso to sub-section (2) of Section 8
has not been kept in view.
Learned counsel for the State of Assam supported the judgment of the learned
Single Judge in Crl. Original application No.620/1995 and in Crl. Misc. case
The controversy revolves round the provisions contained in Section 8 of the
Act and the same reads as under :
"8. Inquiry how to be made against arrested persons (1) When any
person is arrested by an officer of the Force for an offence punishable under
this Act or is forwarded to him under Section 7, he shall proceed to inquire
into the charge against such person.
(2) For this purpose the officer of the Force may exercise the same powers
and shall be subject to the same provisions as the officer in charge of a
police station may exercise and is subject to under the Code of Criminal
Procedure, 1898 (5 of 1898), when investigating a cognizable case:
Provided that (a) if the officer of the Force is of opinion that there is
sufficient evidence or reasonable ground of suspicion against the accused
person, he shall either admit him to bail to appear before a Magistrate having
jurisdiction in the case, or forward him in custody to such Magistrate;
(b) if it appears to the officer of the Force that there is not sufficient
evidence or reasonable ground of suspicion against the accused person, he shall
release the accused person on his executing a bond, with or without sureties as
the officer of the Force may direct, to appear, if and when so required before
the Magistrate having jurisdiction, and shall make a full report of all the
particulars of the case to his official superior.
A bailable offence is defined under Section 2(d) of the Criminal Procedure
Code, 1973 (in short the 'Code'). A bare reading of the proviso to sub-section
(2) of Section 8 makes the position clear that three situations are envisaged.
Two of the three situations are relatable to clause (a) of the proviso. If the
officer of the Force is of the opinion that there is sufficient evidence or
reasonable ground of suspicion against the accused persons he shall (a) either
admit him to bail to appear before a Magistrate having jurisdiction in the case
or (b) forward him in custody to such Magistrate.
Learned Single Judge appears to have taken the view that the direction that
can be given by the officer having jurisdiction of the case is as a corollary
of accused's right to get bail. The interpretation is clearly erroneous. It has
been observed that the discretion to decide whether it is bailable or not
cannot be left to the discretion of the officer. The view overlooks the clear
language of the proviso and the jurisdiction to exercise the discretion is
statutorily provided. The exercise of such discretion is also controlled by the
prescription regarding forming of opinion as regards sufficiency of material or
The controversy can be looked at from another angle. In Schedule I of the
Code, offences are classified. Part I deals with offences under the Indian
Penal Code and Part II deals with "Classification of offences against
other laws". Undisputedly the present case is covered by Part II. While classifying
offences on the basis of punishments prescribed for offences punishable with
imprisonment for 3 years and upwards but not more than 7 years, it is provided
that the offences shall be cognizable and non-bailable. However, an exception
has been made by Section 5 of the Act, making the offence non-cognizable.
Except that exception, Schedule I of the Code applies under Section 3 of the
Act for the first offence the imprisonment may extend upto five years and for
subsequent offences also similar term is fixed. Only for special and adequate
reasons to be recorded the minimum can be one year and two years respectively.
There are two options given to the officer to form opinion i.e.
whether there is sufficient evidence or reasonable ground of suspicion
against the accused persons. It nowhere deals with the right of the accused to
get bail. The third category is contemplated by clause (b) of the proviso. It
inter alia, provides that when it appears to the officer that there is no
sufficient evidence or reasonable suspicion, he shall release the accused
person on his executing a bond with or without surety as the officer of the
Force may direct to appear if and when so required before the Magistrate having
jurisdiction and shall make a full report of all the particulars of the case to
his superior officer. This category deals with a case where there is absence of
sufficient evidence or reasonable ground of suspicion. In such case concerned
officer has the power to release accused person on his executing bonds.
Therefore, the High Court was not justified in holding that all the offences
under the Act are bailable. Such view is contrary to the provisions contained
in Section 8 of the Act.
Learned Single Judge was, therefore, not justified in holding that since the
offences have been specifically made bailable under the Act, they are bailable.
The conclusion is indefensible. That being so, we set aside the judgment of the
Single Judge in Crl. Original Application no.620/1995 and Crl. Misc. case
no.219/95 dated 27.6.96.
Appeal is allowed.