Pampapathy Vs. State of Mysore 
INSC 127 (28 July 1966)
28/07/1966 RAMASWAMI, V.
CITATION: 1967 AIR 286 1966 SCR 477
Code of Criminal Procedure (Act 5 of 1898),
s. 561A-Appeal to High Court against conviction-Accused released on bail by
High Court-If bail can be cancelled by High Court.
The appellants were released on bail by the
High Court under s. 426 Cr. P.C., pending disposal of their appeal in the High
Court. On an application by the State that the appellants were misusing their
liberty and committing acts of violence, the bail was cancelled by the High
Court in the exercise of its inherent powers under s. 561-A, Cr. P.
On the question whether the High Court had
HELD:-The inherent power of the High Court
under s. 561 A, Ct. P.C., can be exercised either for giving effect to any
order under the Criminal Procedure Code or to prevent abuse of the process of a
court or otherwise to secure the ends of justice; but such power cannot be
invoked in respect of any matter covered by a specific provision or
inconsistent with any specific provision of the Criminal Procedure Code. Under
ss. 497 and 498, Cr. P.C., the Legislature has made express provision for the
cancellation of bail in certain cases, but there is no express provision when
an appellant is released on bail under s, 426 Cr. P.C.
The omission must be due to inadvertence and
cannot be regarded as deliberate, otherwise the subsequent conduct of the
appellant, however reprehensible it may be, will not justify the High Court in
canceling the order of bail.
Since the allegations against the appellant
prima facie indicate abuse of the Process of the Court, s. 561 A is attracted
to the case and the High Court was entitled to cancel the bail. [481 F-H; 482
D, F] Lala Jairam Das v. King Emperor, L.R. 72 I.A. 120, explained.
CRIMINAL APPELLATE JURISDICTION:Criminal
Appeals Nos. 121 and 122 of 1966.
Appeals by special leave from the judgment
and order dated March 14, 1966 of the Mysore High Court in Criminal Revision
Petitions Nos. 120 and 123 of 1966 respectively.
M.K. Ramamurthi, R. K. Garg and S. C.
Agarwala, for the appellants (in both the appeals).
R.Gopalakrishnan and B. R. G. K. Achar, for
the respondents (in both the appeals).
The Judgment of the Court was delivered by
RAMASWAMI J. The appellants Pampapathy and Shekarappa were tried in the Court
of Sessions at Chitradurga for offences under ss. 147, 148, 307, 323, 302 read
with s. 149 and s. 325 read 478 with s. 149 of the Indian Penal Co& and
convicted of all the offences other than under s. 307 and s. 302 read with s. 149,
Indian Penal Code.
The case of the prosecution was that the
appellants, along with others, some of whom were dismissed workers of Devangiri
Cotton Mills and Shri Ganeshar Textiles Mills and some of whom were office
bearers and members of the Devangiri Cotton Mills Employees' Association and
Shri Ganeshar Textiles Mills Workers Union, conspired with the common object of
committing murder and other offences with a view to strengthen their
Associations and to weaken the rival Unions which had the sympathy of the Mill
It was alleged that they intended to create
fear in the mind of the Management of the Mills in order to gain their object
of getting more bonus and get the dismissed workers reinstated. It was stated
that they formed themselves into an unlawful assembly, armed themselves with
deadly weapons, and attacked the deceased Heggappa and other loyal workers on
the night of March 19, 1964 causing the death of Heggappa and injuries to 4
persons. The Sessions Judge, by his judgment dated December 7, 1964 convicted
both the appellants for offences under ss. 147, 148, 322 .324 and 325 read with
s. 149, Indian Penal Code. The appellants preferred appeals to the Mysore High
Court and on admission of the appeals they were directed to be released on
On March 7, 1966, the State made two
applications under ss. 498(2) and 561A, Criminal Procedure Code for
cancellation of the bail granted to the two appellants. In support of the two
petitions an affidavit was filed by the Deputy Superintendent of Police,
Devangiri Division Sri K. Srinivasa Alwa, stating that the two appellants were
misusing their liberty ever since they were enlarged on bail by doing acts of
violence, creating trouble by instigating the labour unions of Devangiri Cotton
Mills and Shankara Textile Mills to paralyse the smooth working of the Mills.
It was alleged that they bad constituted
themselves as ring leaders of the Employees' Association and were engaged in
taking part in unlawful assemblies at different times and committed offences
against the peaceful workers of the Mill.
The appellants filed a counter affidavit
denying that they were acting in a manner likely to cause breach of peace or
endanger the lives of the workers. On March 14, 1966 the Mysore High Court
allowed the applications of the State and ordered that the bail granted to the
appellants should be cancelled and they should be rearrested and committed to
These appeals are brought, by special leave,
from the order of the Mysore High Court dated March 14, 1966 in Criminal
Petitions Nos. 120 and 123 of 1966.
The question of law arising for determination
in these appeals is whether, in the case of a person convicted of a bailable
offence where bail has been granted to him under s. 426 of the Criminal 479
Procedure Code, it can be cancelled in a proper case by the High Court in
exercise of its inherent power under s. 561A of the Criminal Procedure Code? It
is necessary at the outset to reproduce the relevant provisions of the Criminal
Procedure Code. Section 426 relates to the suspension of the sentence or order
of the trial court pending appeal and the release of the appellant on bail. The
section reads as follows:"426. (1) Pending any appeal by a convicted
person, the Appellate Court may, for reasons to be recorded by it in writing,
order that the execution of the sentence or order appealed against be suspended
and, also, if he is in confinement, that he be released on bail or on his own
(2)The power conferred by this section on an
Appellate Court may be exercised also by the High Court in the case of any
appeal by a convicted person to a Court subordinate thereto.
(2-A) When any person other than a person convicted
of a non-bailable offence is sentenced to imprisonment by a Court, and an
appeal lies from that sentence, the Court may, if the convicted person
satisfies the Court that he intends to present an appeal, order that he be
released on bail for a period sufficient in the opinion of the Court to enable
him to present the appeal and obtain the orders of the Appellate Court under
sub-section (1) and the sentence of imprisonment shall, so long as he is so
released on bail, be deemed to be suspended.
(2-B) Where a High Court is satisfied that
convicted person has been granted spec ial leave to appeal to the Supreme Court
against any sentence which the High Court has imposed or maintained, the High
Court may, if it so thinks fit, order that pending the appeal the sentence or
order appealed against be suspended, and also, if such person is in
confinement, that he be released on bail.
(3)When the appellant is ultimately sentenced
to imprisonment, or imprisonment for life, the time during which he is so
released shall be excluded in computing the term for which he is so
sentenced." Section 496 deals with persons accused of bailable offences.
It provides that "when a person charged
with the commission of a bailable offence is arrested or detained without
warrant by an I officer in charge of a police station or is brought before a
court and is prepared at any time, while in the custody of such officer or at
any stage of the proceedings before such court, to give bail, 480 such person
shall be released on bail". Section 497 deals with the question of
granting bail in the case of nonbailable offences. It reads as follows:"497.
(1) When any person accused of or suspected of the commission of any nonbailable
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
imprisonment 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 committed 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) (3-A) (4) (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." 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 ss. 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.
Section 561A was added to the Code in 1923 and it reads as follows:"561-A.
Nothing in this Code shall be deemed to limit or affect the inherent power of
the High Court to make such orders as may be necessary to give effect to any
order under this Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice." 481 It was argued by Mr.
Ramamurthy on behalf of the appellants that after the High Court had once made
an order suspending the sentence and granting bail to the appellants under s. 426,
Criminal Procedure Code it had no power to cancel that order subsequently and
recommit the appellants to jailcustody. It was submitted that there was no
express power granted to the appellate court to cancel its order regarding the
suspension of sentence pending the appeal and the order of release of the
appellants on bail. It was pointed out that under s. 497(5) the legislature has
specifically conferred power on specified courts to cancel the bail granted to
a person accused of a non-bailable offence. It was also pointed out by learned
Counsel that under s. 498(2) the legislature has conferred power on the High
Court and the Court of Session to cancel the bail granted to an accused person
under s. 498(1) and ordering him to be arrested and committed to jailcustody.
The argument put forward on behalf of the appellants is that if the legislature
intended to confer such a power on the appellate court under s. 426 it would
have been very easy for it to add an appropriate sub-section and make an
express provision for such a power. The omission to make such an express
provision is, according to Mr. Ramamurthy, not a result of inadvertence but it
is deliberate, and if that is so it will not be permissible to take recourse to
the provisions of s.
561A to clothe the appellate court with power
to cancel the bail in a case falling under s. 426, Criminal Procedure Code. It
was argued by Mr. Ramamurthy that even if the appellants committed acts of
violence during the period they were enlarged on bail and repeated the very
offence for which they had been convicted the bail bond could not be cancelled
but the further conduct of the accused may justify another prosecution tinder
the Indian Penal Code and that it would not justify the re arrest of the
appellants. In our opinion, there is no justification for the argument put forward
on behalf of the appellants. It is true that in s. 498 and ss. 497(5) and 498
the legislature has made express provision for the cancellation of a bail bond
in the case of accused persons released on bail during the course of the trial
but no such express provision has been made by the legislature in the case of a
con. evicted person whose sentence has been suspended under s. 426 and there
has been an order of release of the appellant on bail. There is obviously a
lacuna but the omission of the legislature to make a specific provision in that
behalf is clearly due to oversight or inadvertence and cannot be regarded as
deliberate. If the contention of the appellants is sound it will lead to
fantastic results. The argument is that once an order of suspension of sentence
is made under s. 426 by the appellate court and the appellant is ordered to be
released on bail. the subsequent conduct of the appellant.
howsoever reprehensible it may be. cannot
justify the appellate court in revoking the order of bail and ordering the re arrest
of the appellant. The appellant may commit further acts of violence-, he may
perpetrate once again the very same offences 482 for which he has been
convicted; he may even threaten and criminally intimidate the prosecution
counsel who may be in charge of the case in the appellate court'. he may attempt
to abscond to a foreign country to escape the trial; or he may commit acts of
violence in revenge against the police and prosecution witnesses who have
deposed against him in the trial court, but the appellate court will have no
power to cancel the suspension of sentence and the order of bail made under s.
426. Criminal Procedure Code. Such a situation could not have been in the
contemplation of the legislature and, in our opinion, the omission to make an
express provision in that behalf is manifestly due to oversight or
inadvertence. In a situation of this description the High Court is not helpless
and in a proper case it may take recourse to the inherent power conferred upon
it under s. 561A of the Criminal Procedure Code.
The inherent power of the High Court
mentioned in s. 561A.
Criminal Procedure Code can be exercised only
for either of the three purposes specifically mentioned in the section.
The inherent power cannot be invoked in
respect of any matter covered by the specific provisions of the Code. It cannot
also be invoked if its exercise would be inconsistent with any of the specific
provisions of the Code. It is only if the matter in question is not covered by
any specific provisions of the Code that s. 561A can come into operation.
No legislative enactment dealing with
procedure can provide for all cases that can possibly arise and it is an
established principle that the Courts should have inherent powers, apart from
the express provision of law, which are necessary to their existence and for
the proper discharge of the duties imposed upon them by law. This doctrine
finds expression in s. 561A which does not confer any new powers on the High
Court but merely recognises and preserves the inherent powers previously
possessed by it. We are, therefore, of the opinion that in a proper case the
High Court has inherent power under s. 561 A. Criminal Procedure Code to cancel
the order of suspension of sentence and grant of bail to the appellant made
under s. 426. Criminal Procedure Code and to order that the appellant be
rearrested and committed to jail-custody.
We should like to add that, even before s.
498(2) was enacted, there was a consensus of judicial opinion in favour of the
view that, if the accused person is released on bail under s. 498(1), his bail
bond could be cancelled and he could be ordered to be arrested and committed to
custody under the provisions of s. 561A of the Code (Mirza Mohammad Ibrahim v.
Emperor(1). Seoti v. Rex(1), Bachchu Lal v. State(1), Munshi Singh v. State(1)
and The Crown Prosecutor, Madras v. Krishnan(1)). These decisions proceed upon
the view that the exercise of inherent power (1) A.T.R. 1932 All.534.
(2) A.I.R. 1948 All.366.
(3) A. I.R. 1951 All.836 (5) I.L.R. 
(4) A.I.R. 1962 All. 39.
483 to cancel bail under s. 561A was not
regarded as inconsistent with the provisions of s. 498(1) of the Code.
It is true that all these decisions referred
to cases of persons charged with non-bailable offences; but it is significant
that the provisions of s. 497(5) did not apply to these cases and the
appropriate orders were passed under the purported exercise of the inherent
power under s. 561A.
In the course of argument Mr. Ramamurthy
strongly relied upon the decision of the Judicial Committee in Lala Jairam Das
v. King-Emperor(1). It was contended on behalf of the appellants that the High
Court has no power to grant bail to a convicted person under s. 498 of the
Criminal Procedure Code and therefore the provisions of s. 498(2) cannot be
invoked to the present case. This argument is undoubtedly correct and is
supported by the decision of the Judicial Committee. It was further contended
by Mr. Ramamurthy on the basis of this decision that Ch. XXXIX of the Code
together with s. 426 was intended to contain a complete and exhaustive
statement of the powers of a High Court to grant bail, and excludes the
existence of any additional inherent power in a High Court relating to the
subject of bail. But the actual decision of the Judicial Committee has no
application to the facts of the present case. The question before the Judicial
Committee was whether the Code of Criminal Procedure confers any power on a
High Court in India to grant bail to a person who has been convicted and
sentenced to imprisonment and to whom the Judicial Committee has given special
leave to appeal against his conviction or sentence. It was held by the Judicial
Committee that the High Courts had no such power under the Criminal Procedure
Code and could not grant bail to a person who has been convicted and sentenced
to imprisonment and to whom the Judical Committee has given special leave to
appeal against his conviction and sentence. The question presented for
determination in the present case, namely, whether inherent power of the High
Court could be exercised for cancellation of bail, was not the subject-matter
of consideration before the Judicial Committee and that question did not
obviously arise in the case before them. The ratio decidend of the decision of
the Judicial Committee is therefore different and has no application to the
present case. We accordingly reject the argument by Mr. Ramamurthy on this
aspect of the case.
We pass on to consider the next contention of
the appellants, viz., the case does not fall under s. 561A of the Criminal Procedure
Code and that it is not a proper case in which the High Court should cancel
bail even though it has power under s. 561A to do so. We are unable to accept
the argument of Mr. Ramamurthy as correct. An affidavit was filed before the
High Court on behalf of the State by the Deputy Superintendent of Police.
Devangiri Division in which it was stated that the appellants were (1)72 I.A.
484 misusing the liberty granted to them ever
since they had been enlarged on bail by committing acts of violence, creating
trouble by instigating the labour unions of Devanagiri Cotton Mills and other
mills in Devanagiri with a view to paralyse the smooth working of the Mills. It
was also alleged that the appellants had constituted themselves as ring leaders
of the Employees' Association and were taking part in unlawful assemblies at
different times and had committed offences against the peaceful workers of the
Mill. On December 31, 1965 Crime No. 360 of 1965 was registered against the
appellants for commission of the offence sunder ss. 143, 448 and 324, Indian
Penal Code. On February 11, 1966 Crime No. 53 of 1966 was registered in which
one of the appellants was alleged to have committed offences under ss. 341 and
323, Indian Penal Code. On February 12, 1966 yet another Crime No. 54 of 1966
was registered against the appellants for the commission of the offence under
ss. 143, 147, 341, 323 and 324, Indian Penal Code. The allegation against the
appellants therefore was that they were misusing the liberty granted to them by
the appellate court and were indulging in acts of violence. It is true that
counter-affidavits were filed by the appellants denying the allegations made by
the State but the High Court apparently took the view that the allegations
against the appellants on behalf of the State were well-founded and the bail
granted to them by the High Court should be cancelled.
In our opinion, the allegations made against
the appellants would prima facie indicate abuse of the process of the Court and
the provisions of s. 561A are attracted to the case and the High Court was
entitled to cancel the bail of the appellants under the provisions of that
section. In our opinion, Mr. Ramamurthy has failed to make good his submission
on this aspect of the case.
For these reasons we hold that there is no
merit in these appeals which are accordingly dismissed.