Raghubir Singh & Ors Vs. State of
Bihar [1986] INSC 195 (19 September 1986)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) DUTT, M.M. (J)
CITATION: 1987 AIR 149 1986 SCR (3) 802 1986
SCC (4) 481 JT 1986 481 1986 SCALE (2)452
CITATOR INFO: F 1990 SC 71 (11)
ACT:
Constitution of India, 1950.
Arts. 32 and 136-Petitions against framing of
charges by the Trial Court-Whether maintainable-Supreme Court cannot convert
itself into a trial court to consider sufficiency of evidence justifying
framing of charges.
Article 21-Right to speedy trial-When
violated-Factors to be taken in consideration-Question ultimately one of
fairness in the administration of criminal justice.
Criminal Law Amendment Act, s. 6-Creation of
Special Judge's Court-Justification of-Trial entrusted to Special Court in the
interest of security and convenience of the accused-Whether rule of law
violated.
Indian Penal Code, ss. 120A &
124A-Accused need not be a participant throughout to constitute offence of
conspiracy-Distribution and circulation of seditious material-Whether
sufficient for constituting offence.
Criminal Procedure Code, 1973, ss. 167(2),
309(2), 437(5) and 439(2)-Order for release on bail-No limit within which bail
bond may be executed-Order for release on bail effective until an order under
s. 437(5) or 439(2) is made- Order not extinguished either by discharge of
surety/by lapse of time/the filing of chargesheet/remand to custody under s.
309(2).
HEADNOTE:
The petitioners-accused were arrested by the
Security Police Patrol Party in the State of Bihar while attempting to cross
Indo-Nepal border. One of them was identified Simranjit Singh Mann-a dismissed
Police Officer who had gone underground after an order of detention under the
National Security Act was passed against him. As a result of 803 the search,
currency notes and a number of documents and other articles were seized from
the petitioners. It is alleged that one of the accused also offered a bribe to
the police officers. The police registered a first information report and
commenced investigation. A chargesheet was filed on 11th December, 1985 before
judicial Magistrate First Class against the five accused-petitioners for
offences under ss. 121-A, 123, 124-A, 153A, 165-A, 505 and 120-B of the Indian
Penal Code. However, before the chargesheet was filed, the accused-petitioner,
Simranjit Singh Mann was served with an order of detention under the National
Security Act and sent to Bhagalpur jail. The other four accused were also
detained under the National Security Act at Bhagalpur.
All the petitioners moved the Judicial
Magistrate for bail in the aforesaid criminal case claiming to be released
under proviso (a) of s. 167(2) of the Code of Criminal Procedure. They were
granted bail but, they could not be released because of their detention under
the National Security Act. While so, the surety for all the five accused filed
a petition requesting the Magistrate to discharge him from suretyship as he did
not want to continue to be the surety of the accused persons. The Magistrate
discharged the surety from suretyship and issued formal warrants of arrest
under s. 444(2) of the Code of Criminal Procedure. At this stage, the High
Court of Punjab and Haryana made an order quashing the detention of Simranjit
Singh Mann.
The Magistrate took cognizance of the case
under ss.
121A, 123, 124A, 153A, 165A and 120B of the
Indian Penal Code on December 18, 1985. Thereafter the investigating Officer
filed a petition requesting expeditious trial as the case was one of special
importance. All the petitioners except Simranjit Singh Mann filed fresh bail
bonds. The said bail bonds were rejected on December 20, 1985 as the surety
could not name either the accused persons or their fathers.
The accused moved another petition for
recalling the order dated December 20, 1985 and accepting the same person as
surety. This petition was rejected on the ground that the earlier order could
not be reviewed. The High Court also rejected the bail applications of these
accused persons.
The case was thereafter, transferred to the
Special Judge (Vigilance) North Bihar, Patna. The accused Simranjit Singh Mann
moved an application before the Special Judge offering cash security and asking
for bail but it was rejected on the ground that the High Court had alread
rejected the application of the other four accused. The case was later
transferred to the Court of Special Judge, Bhagalpur and was 804 finally
adjourned to August 8, 1986 for arguments on the question of charges to be
framed and on the question of jurisdiction. At this stage, the Special Public
Prosecutor filed a petition stating that the offences under s. 165 and ss. 165A
read with s. 34 were not committed in the course of the same transaction as the
offences under ss. 124-A etc., and therefore it was necessary that the offences
under ss.
165 and 165A read with s. 34 should be tried
separately from the offences under secs. 124A etc. The accused also filed a
petition to the same effect. The Special Judge allowed the aforesaid petition
holding that the offences were not committed in the course of the same
transaction and therefore the trial for the offences under ss. 165 and 165A
read with s. 34 should be separated from the other offences.
It was further held that he was not competent
to try the accused for the offences under secs. 121A, 124A etc. as the case had
not been committed to the court of Sessions by the Trial Magistrate and
directed that in regard to those offences the record be sent back to the
District and Sessions Judge, Purnea for proceeding further in accordance with
law.
Alleging that the Special Public Prosecutor
had never been instructed to file such a petition before the Special Judge, the
respondent State of Bihar filed a writ petition in the High Court and obtained
a stay of further proceedings before the Special Judge.
The accused-petitioners filed special leave
petitions and writ petitions before the Supreme Court against the rejection of
their bail applications and for quashing the proceedings before the Special
Judge.
It was contended on behalf of the petitioners
(a) that the fundamental right of the petitioners under Art. 21 of the
Constitution had been frustrated by the tactics of the State whose only object
was to somehow keep the petitioners in prison; (b) that there was no material
whatever to substantiate the offences of waging war etc. and that the
proceedings deserved to be quashed on that ground also; (c) that the
proceedings before the Special Judge, Purnea were without jurisdiction both for
the reason that he was not competent to try the offences under s. 121A and s.
124A etc.
and also for the reason that he came to be
seised of the case at the instance of the Executive Government, who had no
authority to transfer the case from the court of the Special Judge, Patna to
the Court of the Special Judge, Purnea, since the rule of law would be defeated
if the Executive Government were to be permitted to have cases decided by
Judges of their choice; (d) that the High Court and the Special Judge were
wrong in not permitting the accused to offer fresh sureties or cash security;
(e) that the High Court and the Special 805 Judge were wrong in holding that
the order of the Magistrate directing them to be released on bail under s.
167(2) had come to an end by the passage of time, particularly after cognizance
had been taken of the case; (f) that there was no material whatsoever to
warrant the framing of charges for any of the offences mentioned in the
charge-sheet other than sec. 165A; (g) that in the case of the accused persons
other than Simranjit Singh Mann, there was nothing whatever to connect them
with the offences under ss. 121A and 124A. On behalf of the respondent-State it
was argued that the order for release on bail stood extinguished on the remand
of the accused to custody under s. 309(2) of the Code of Criminal Procedure.
Dismissing the petitions, ^
HELD: 1.1 The delay in the investigation and
in the trial of the case is not so unfair as to warrant quashing the
proceedings on the ground of infringement of the right of the accused to a
speedy trial, a part of their fundamental right under Art. 21 of the
Constitution. Having regard to the entirety of the circumstances, the long
lapse of time since the original order for bail was made, the consequent change
in circumstances and situation, and the directions that were now given for the
expeditious disposal of the case, there would be no justification for
exercising the court's discretion to interfere under Art. 136 of the
Constitution at this stage. [818G-H; 827A-B]
1.2 The High Court is directed to dispose of
the criminal revision petition before it as expeditiously as possible
preferably within three or four weeks. Whatever be its outcome the High Court
should also direct the Special Judge or other Judge who may have to try the case,
or the cases as the case may be, to try the cases expeditiously setting a near
date for the trial and to proceed with the trial from day to day. [820D-]
2. The right to a speedy trial is one of the
dimensions of the fundamental right to life and liberty guaranteed by Art. 21
of the Constitution. The question whether this right has been infringed is
ultimately a question of fairness in the administration of criminal justice
even as "acting fairly" is of the essence of the principles of natural
justice. A "fair and reasonable procedure" is what is contemplated by
the expression "procedure established by law" in Art. 21.[815F-G]
Hussainara Khatoon (I) v. State of Bihar, [1979] 3 SCR 169, Kadra Pehadiya (I)
v. State of Bihar, AIR 1981 SC 939, Kadra Pehdiya(II) v. State of Bihar, AIR
1982 SC 1167, State of Maharashtra 806 v. Champa Lal Punjaji Shah, [1981] 3 SCC
610 and Menaka Gandhi's case followed.
Strunk v. United States, 37 Law Ed. 2nd 56,
Barkar v. Wingo, 407 US 514 and Boll v. Director of Public Prosecutions,
Jamaica, [1985] (II) All ER 585, referred to.
3.1 The question whether there was any
material whatsoever to warrant the framing of charges for any of the offences
mentioned in the charge-sheet other than sec. 165A is not a matter to be
investigated by the Supreme Court in a petition under Art. 32 of the
Constitution. This Court cannot convert itself into the court of a Magistrate
or a Special Judge to consider whether there is evidence or not justifying the
framing of charges. [819A-B]
3.2 The questions relating to the
jurisdiction of the Special Judge to try the accused for the offences under
secs. 121, 121A, etc. and the link between the offences under secs. 165A and
165A read with sec. 34 on the one hand and the offences under secs. 121 and 121A
etc. on the other are questions which are awaiting the decision of the High
Court. These questions are left to be decided by the High Court. [819C]
4. There was no evil design in the creation
of a Special Judge's court for Purnea Division at Bhagalpur under the Criminal
Law Amendment Act and the designation of a Judge to preside over that court.
All that has, in fact happened is that a Special Judge's court was created for
Purnea Division under s. 6 of the Criminal Law Amendment Act and Shri Bindeshwari
Prasad Verma, Additional District Judge West Champaran, who was under orders of
transfer as Additional District Judge Bhagalpur was designated as the Special
Judge. The case Jogbani P.S. No. 110/84, was mentioned within brackets as that
was apparently the only case awaiting trial in Purnea Division under the
Criminal Law Amendment Act. The Special Judge's court was created for Purnea
Division as it was thought that it would be more convenient for the accused and
also in the interests of security if the case was tried at Bhagalpur where the
accused were imprisoned rather than to have the trial of the case at Patna to
which place the accused would have to be taken from Bhagalpur for every
hearing. [819E-]
5. The authorship of seditious material alone
is not the gist of any of the offences. Distribution or circulation of
seditious material may also be sufficient on the facts and circumstances of a
case. To act as a courier is sometimes enough in a case of conspiracy. It is
also not 807 necessary that a person should be a participant in a conspiracy
from start to finish. Conspirators may appear and disappear from stage to stage
in the course of a conspiracy.
[820B-C] In the instant case, whether such
evidence as may now be available in the record to justify the framing of
charges is a matter for the trial court and not for the Supreme Court.[820C]
6.1 The effect of the proviso to s. 167(2) of
the Code of Criminal Procedure, 1973, is to entitle an accused person to be
released on bail if the investigating agency fails to complete the
investigation within 60 days. A person released on bail under the proviso to s.
167(2) for the default of the investigating agency is statutorily deemed to be
released under the provisions of Chapter 33 of the Code for the purposes of
that Chapter. That is provided by the proviso to s. 167(2) itself. This means,
first, the provisions relating to bonds and sureties are attracted.
Section 441 provides for the execution of
bonds, with or without sureties, by persons ordered to be released on bail.
One of the provisions relating to bonds is s.
445 which enables the court to accept the deposit of a sum of money in lieu of
execution of a bond by the person required to execute it with or without
sureties. If the bond is executed (or the deposit of cash is accepted), the
court admitting an accused person to bail is required by s. 442(1) to issue an
order of release to the officer in charge of the jail in which such accused
person is incarcerated. Sections 441 and 442 are in the nature of provisions
for the execution of orders for the release on bail of accused persons.
[821D-G]
6.2 There is no limit of time within which
the bond may be executed after the order for release on bail is made.
Very often accused persons find it difficult
to furnish bail soon after the making of an order for release on bail. This
frequently happens because of the poverty of the accused persons. It also
happens frequently that for various reasons the sureties produced on behalf of
accused persons may not be acceptable to the court and fresh sureties will have
to be produced in such an event. The accused persons are not to be deprived of
the benefit of the order for release on bail in their favour because of their
inability to furnish bail straight away. [821G-H; 822A]
6.3 Orders for release on bail are effective
until an order is made under s. 437(5) or s. 439(2). These two provisions
enable the Magistrate who has released an accused on bail or the court of
Session or the High Court to direct the arrest of the person released on bail
and to commit him to custody. The two provisions deal with what is known as
cancella- 808 tion of bail. Since release on bail under the proviso to s.
167(2) is deemed to be release on bail under
the provisions of Chapter XXXIII, an order for release under the proviso to s.
167(2) is also subject to the provisions of s. 437(3) and 439(2) and may be
extinguished by an order under either of these provisions. [822A-C]
6.4 The order for release on bail is not
extinguished and is not to be defeated by the discharge of the surety and the
inability of the accused to straight away produce a fresh surety. The accused
person may yet take advantage of the order for release on bail by producing a
fresh, acceptable surety. [822E-F]
6.5 Section 309(2) merely enables the court
to "remand the accused if in custody". It does not empower the court
to remand the accused if he is on bail. It does not enable the court to
"cancel bail" as it were. That can only be done under s. 437(5) and s.
439(2). When an accused person is granted bail, whether under the proviso to s.
167(2) or under the provision of Chapter XXXIII the only way the bail may be
cancelled is to proceed under s. 437(5) or s. 439(2).
[822F-H]
7.1 An order for release on bail made under
the proviso to s. 167(2) is not defeated by lapse of time, the filing of the
chargesheet or by remand to custody under s. 309(2). The order for release on
bail may however be cancelled under s.
437(5) or s. 439(2). Generally the grounds
for cancellation of bail, broadly, are interference or attempt to interfere
with the due course of administration of justice, or evasion or attempt to
evade the course of justice, or abuse of the liberty granted to him. [826B-C]
7.2 Where bail has been granted under the proviso to s.
167(2) for the default of the prosecution is
not completing the investigation in sixty days, after the defect is cured by
the filing of a chargesheet, the prosecution may seek to have the bail
cancelled on the ground that there are reasonable grounds to believe that the
accused has committed a non-bailable offence and that it is necessary to arrest
him and commit him to custody. In the last mentioned case, one would expect
very strong grounds indeed. [826D-E] In the instant case, the High Court and
following the High Court, the Special Judge have held that the order for
release on bail came to an end with the passage of time on the filing of the
chargesheet. That is not a correct view.
The order for release on bail was not an
order on merits but was, what one may call an order-on-default, an order that
could be 809 rectified for special reasons after the defect was cured.
The order was made long ago but for one
reason or the other, the accused failed to take advantage of the order for
several months. Probably for that reason, the prosecuting agency did not move
in the matter and seems to have proceeded on the assumption that the order had
lapsed with the filing of the chargesheet. Having regard to the entirety of
circumstances the Court did not exercise its discretion under Art. 136 of the
Constitution. [826F-H] Natabar Parida v. State of Orissa, AIR 1975 SC 1465,
Bashir v. State of Haryana, [1977] 4 SCC 410 and Talab Hazi Hussain v. Mondkar,
AIR 1958 SC 376, referred to.
ORIGINAL/CRIMINAL APPELLATE JURISDICTION:
Writ Petition (Criminal) No. 136 of 1986.
Under Article 32 of the Constitution of India
with Special Leave Petition (Criminal) No. 630 of 1986 From the Judgment and
Order dated 17.1.1986 of the Patna High Court in Crl. Misc. No. 367 of 1986.
and Writ Petition (Criminal) No. 137 of 1986
Under Article 32 of the Constitution of India.
with Special Leave Petition (Criminal) No.
577 of 1986.
From the Judgment and Order dated 7.2.1986 of
the Special Judge (Vigilance) Bihar, Patna in S.C. No. 6 of 1986.
Ram Jethmalani, Miss Rani Jethmalani, K.N. Madhusoodhanan
and Ashok Sharma for the Petitioners.
A.N. Mulla, D.Goburdhan and Basudeo Prasad
for the Respondents.
810 The Judgment of the Court was delivered
by CHINNAPPA REDDY, J. On the intervening night of November 29/30, 1984, the
Security Police Petrol on duty near Jogbani Checkpost noticed a jeep speeding
towards the Indo-Nepal border. The jeep was stopped. There were five occupants
in the jeep. One of them was Simranjit Singh Mann who had been dismissed from
the Indian Police Service. An order of preventive detention under the National
Security Act had been made against him on August 28, 1986. He was wanted in
that connection but had gone 'underground'. On being questioned by the police
petrol party, they first refused to disclose their names and identity. This
aroused the suspicions of the police party. One of the officers was able to
identify Simranjit Singh Mann. The five occupants in the jeep were searched as
also their baggage. A sum of Rs.62,722 was found with one of the occupants, who
it is alleged offered the police party a large amount as bribe if they were
allowed to cross the Indo-Nepal Border. As a result of the search, a number of
documents and other articles were seized. From the person of Simranjit Singh
Mann were seized, a copy of a letter dated June 2, 1984 from Simranjit Singh
Mann to the Chief Secretary, Punjab, a copy of the letter of resignation dated
June 18, 1984 of Simranjit Singh Mann, the Passport of Simranjit Singh Mann, two
photographs of Jarnail Singh Bhindrawala, a letter from Simranjit Singh Mann to
Birbal Nath, a letter addressed to one Arun Kumar Agarwal asking him to help
the bearer in all possible ways and Raghubir Singh. Kamikar Singh was the
person who had made the offer of bribe. A First Information Report was then
registered at the Jogbani Police Station for references under secs. 121-A,
124-A, 123, 153-A, 505 and 120-B of the Indian Penal Code and s. 5(iii) of the
Prevention of Corruption Act. Investigation started. On December 11, 1985 a
charge-sheet was submitted before the Judicial Magistrate First Class Araria
against the five accused persons for offences under secs. 121-A, 123, 124-A,
153-A, 165-A, 505 and 120-B of Indian Penal Code.
Before the charge-sheet was filed, on
December 4, 1984 Simranjit Singh Mann was served with the order of detention
under the National Security Act and sent to Bhagalpur Jail.
The other four accused were also detained
under the National Security Act at Bhagalpur. On March 1, 1985 the four accused
other than Simranjit Singh Mann moved the Judicial Magistrate First Class
Araria for bail in the criminal case which was then being investigated claiming
to be released under the proviso (a) of s. 167(2) of the Code of Criminal
Procedure. The learned Magistrate directed their release on bail, but imposed a
811 condition that the sureties should be residents of Araria town. The four
accused persons filed a petition requesting the Magistrate to accept sureties
from Purnea or cash.
Anonymous letter warning Simranjit Singh Mann
of likely attempts to liquidate him and advertising him to leave the country.
Simranjit Singh Mann refused to sign the seizure memo. From Kamikar Singh's
person, currency notes of the value of Rs.62,722 were seized. An amount of
Rs.25,000, it is said, was offered as bribe to the Police Officers. From Jagpal
Singh's suitcase was seized a booklet in English entitled 'Sikhs and Foreign
Affairs' and a combined road map of India, Pakistan, Bangladesh, Sri Lanka and
Nepal. Among other articles seized were a booklet in English written by
Narinder Singh Bhuller said to contain anti-Government and Sikh separatist
propaganda, a notebook containing meterial about the world's leading
underground organisations said to be in Mann's hand-writing, a register in
which Mann was said to be writing the history of Amritsar in which the Indian
Army is said to have been described as the enemy, consequent on operation
Blue-Star, extremist Sikhs are said to be described as nationalists and defendars
of the motherland and Mrs. Gandhi, the then Prime Minister is described in a
derogatory fashion. At the check-post, a photograph of Simranjit Singh Mann was
available and it was varified that the person suspected to be Simranjit Singh
Mann was actually Simranjit Singh Mann. The other persons gave their names as
Kamikar Singh, Charan Singh, Jagpal Singh. The petition was rejected.
Ultimately the four accused were able to get sureties from Araria, but even so
they could not be released as they were under detention under the National
Security Act. Simranjit Singh Mann was also directed to be released under the
proviso to sec. 167(2) on his application on October 28, 1985. The same
condition was imposed that the sureties should be from Araria. He furnished necessary
sureties on October 29, 1985, but could not be released as he was under
detention under the National Security Act.
While so Gauri Shankar Jha who was a surety
for all the five accused filed a petition and personally appeared in court
praying that he may be discharged from suretyship as he did not want to
continue to be a surety of the accused persons.
On December 5, 1985 the learned Magistrate
made an order discharging the surety and issuing formal warrants of arrest
under s. 444(2) of the Code of Criminal Procedure. It was at that stage that
the order of detention against Simranjit Singh Mann was quashed by the High
Court of Punjab and Haryana on December 9, 1985. The charge-sheet in the court
of the Judicial Magistrate First Class Araria was filed on December 14, 1985.
The learned Magistrate took cognizance of the
case under sec- 812 tions 121A, 123, 124A, 153A, 165A and 120-B Indian Penal
Code on December 18, 1985. On the same day he also made an order that Simranjit
Singh Mann should be kept in the Central Jail at Bhagalpur in the interests of
security. On December 19, 1985, the Investigating Officer filed a petition
requesting expeditious trial of the case as it was one of special importance.
On December 20, 1985, fresh bail bonds were filed on behalf of the accused
Raghubir Singh, Jagpal Singh, Kamikar Singh and Charan Singh. However the bail
bonds were rejected as the surety, Kirtyanand Mishra could not name either the
accused persons or their fathers.
On January 2, 1986 all the accused persons
were produced from custody before the Magistrate who further remanded them to
custody till January 13, 1986. The learned Magistrate took up for hearing a
petition which had been previously filed on behalf of the accused persons
requesting that Kirtyanand Mishra may be accepted as a surety as he had once
previously been accepted as surety. It was prayed that the order dated December
20, 1985 might be recalled. The petition was rejected on the ground that the
earlier order could not be reviewed. Later, on the same day, two sureties, Mir
Majid and Kirtyanand Mishra filed petitions requesting that they should be
discharged from suretyship as they did not want to continue as sureties for the
accused persons. On January 7, 1986 the Session Judge, Purnea transferred the
case from the file of Shri R.B. Roy, Joint Magistrate, First Class, Araria to
the Court of Shri U.N. Yadav, Joint Magistrate, First Class, Araria. On January
10, 1986, the learned Magistrate made an order fixing January 11, 1986 for the
supply of 'police papers and necessary orders'. On January 11, 1986 the five
accused persons were produced before the Magistrate. A petition was filed on
behalf of the State to commit the case to the Court of session after delivering
the police papers to the accused persons and thereafter to cancel the bail of
the accused persons and remand them to custody. Another petition was filed on
behalf of the accused to transfer the case to the Special Judge, Purnea. The
accused persons also filed a petition to adjourn the case. The Magistrate
requested the accused to receive the documents furnished under s. 207 Criminal
Penal Code but the accused refused to receive the same claiming that their
petition should be disposed of first so that if necessary they may go to the
higher court in revision. The Public Prosecutor objected to the petition of the
accused on the ground that the accused persons were merely trying to delay the
disposal of the commitment proceedings. The advocate for the accused persons
appears to have made a submission that the case was triable by the Court of
Special Judge and therefore it should be transferred to him. The learned
Magistrate held that cognizance had already been taken of the case by his court
and the 813 order taking cognizance could not be recalled. The question whether
the case should be transferred to the court of Special Judge could be
considered at the stage when the question whether there was a prima facie case
was to be considered. The learned Magistrate then fixed January 18, 1986 as the
date for furnishing copies of documents to the accused persons.
On January 16, 1986 the learned Magistrate
rejected an application by the accused other than Simranjit Singh for
acceptance of cash deposit or in the alternative sureties from outside Araria town.
The learned Magistrate held that he had no power to review his earlier order.
They then moved to the High Court for Bail but that application was also
rejected. On January 18, 1986, the learned Magistrate purported to transfer the
record of the case to the Special Judge (Vigilance), North Bihar, Patna and
directed the accused to be produced before the Special Judge on January 31,
1986. On January 31, 1986 Simranjit Singh Mann offered cash security and that
the joint trial was not permissible.
The learned Special Judge upheld that
submissions and held that the offences were not committed in the course of the
same transaction and therefore the trial for the offences under secs. 165A and
s. 165A read with s. 34 should be separated from the other offences. The
learned judge further held that he was not competent to try the accused for the
offences under secs. 121A, 124A etc. as the case had not been committed to the
court of Session by the Magistrate of Araria. In regard to those offences the
learned special Judge directed the record to be sent back to the District and
Sessions Judge, Purnea for proceeding further in accordance with law.
Alleging that the Special Public Prosecutor
had never been instructed to file a petition before the special Judge suggesting
that the offences under secs. 165 and 165A read with s. 34 and the remaining
offences under s. 121A, 124A etc. were not committed in the course of the same
transaction and that they should be tried separately, the State of Bihar filed
a writ petition in the High Court of Patna and obtained a stay of further
proceedings before the Special Judge. The question of the link between the
offences under secs. 165A and 165A read with s. 34 and the offences under secs.
121A, 124A etc. and the question of the jurisdiction of the Special Judge to
try the offences under secs. 121A, 124A etc. were also raised before us but we
refrain from expressing any opinion on these questions as these questions are
to be considered by the High Court in the Revision Petition before it.
In the two writ petitions filed by the
accused persons, Shri Ram 814 Jethmalani made a forceful and passionate plea
that the fundamental right of his clients under Art. 21 of the Constitution has
been frustrated by the tactics of the State of Bihar whose only object was to
somehow keep the petitioners in prison. He submitted that the case of bribery
rested on what took place on the night of 29/30 November, 1984 and that
investigation into that part of the case was complete in the course of a few
days. The offences of waging war etc. rested primarily on the letters said to
have been written by Simranjit Singh Mann to the President of India and others
and investigation into these offences could not possibly take very long as all
that was necessary was to examine the recipients of the letters. Yet the
chargesheet was filed only in December, 1985 and even thereafter various
tactics were adopted by the prosecution to prevent the trial of the case.
According to Shri Jethmalani, the prosecution being fully aware that there was
no merit in the allegations was merely trying to prolong the case as long as
possible to harass the accused and to keep them in prison. He submitted that
there was no material whatever to substantiate the offences of waging war etc.
and that the proceedings deserved to be quashed on that ground also. He argued
that if the offences of waging war etc. rested on the letters written by
Simranjit Singh Mann to the President of India and the Chief Secretary, as
indeed they were, then the prosecution could have been launched as soon as the
letters were received. There was no need to launch the prosecution now and link
it with the offence of bribery where the letters had been published in the
daily press long ago. It was also submitted the proceedings before the Special
Judge, Purnea were without jurisdiction both for the reason that he was not
competent to try the offences under s. 121A, s. 124A etc. and also for the
reason that he came to be seised of the case at the instance of the Executive
Government, who had no authority to transfer the case from the court of the
Special Judge, Patna to the court of the Special Judge, Purnea. Shri Jethmalani
submitted that the very principle of rule of law would be defeated if the
Executive Government were to be permitted to have cases decided by judges of
their choice.
In the Special leave petitions, Shri
Jethmalani submitted that the High Court and the Special Judge were wrong in
not permitting the accused to offer fresh sureties or cash security. He
submitted that the High Court and the Special Judge were wrong in holding that
the order of the Magistrate directing them to be released on bail under s.
167(2) had come to an end by the passage of
time, particularly after cognizance had been taken of the case.
815 The constitutional position is now
well-settled that the right to a speedy trial is one of the dimensions of the
fundamental right to life and liberty guaranteed by Art. 21 of the
Constitution: Vide Hussainara Khatton (I) v. State of Bihar, [1979] 5 SCR 169
(per Bhagwati and Koshal, JJ), Kadra Pehdiya (I) v. State of Bihar, AIR 1981 SC
939 (per Bhagwati and Sen, JJ.), Kadra Pehdiya (II) v. State of Bihar, AIR 1982
SC 1167 (per Bhagwati and Eradi, JJ) and State of Maharashtra v. Champa Lal
Punjaji Shah, [1981] 3 SCR 610 (per Chinnappa Reddy, Sen and Baharul Islam,
JJ). In foreign jurisdictions also, where the right to a fair trial within a
reasonable time is a constitutionally protected right, the infringement of that
right has been held in appropriate cases sufficient to quash a conviction or to
stop further proceedings: Strunk v. United States, 37 Law Ed. 2d 56 and Barkar
v. Wingo, 407 US 514 two cases decided by the United States Supreme Court and
Bell v. Director of Public Prosecutions. Jamaica, [1985] (II) All ER 585 a case
from Jamaica decided by the Privy Council. Several questions arise for
consideration. Was there delay? How long was the delay? Was the delay
inevitable having regard to the nature of the case, the sparse availability of
legal services and other relevant circumstances? Was the delay unreasonable?
Was any part of the delay caused by the wilfulness or the negligence of the
prosecuting agency? Was any part of the delay caused by the tactics of the
defence? Was the delay due to causes beyond the control of the prosecuting and
defending agencies? Did the accused have the ability and the opportunity to
assert his right to a speedy trial? Was there a likelihood of the accused being
prejudiced in his defence? Irrespective of any likelihood of prejudice in the
conduct of his defence, was the very length of the delay sufficiently
prejudicial to the accused? Some of these factors have been identified in
Barker v. Wingo (supra). A host of other questions may arise which we may not
be able to readily visualise just now. The question whether the right to a
speedy trial which forms part of the fundamental right to life and liberty
guaranteed by Art. 21 has been infringed is ultimately a question of fairness
in the administration of criminal justice even as 'acting fairly' is of the
essence of the principles of natural justice (In re H.K. 1967(1) All ER 226)
and a 'fair and reasonable procedure' is what is contemplated by the expression
'procedure established by law' in Art. 21(Maneka Gandhi).
What do we have here? Five persons were seen
in a jeep going towards the Indo-Nepal border, obviously in an attempt to cross
the border. The border patrol thought that their movements were suspicious.
Their answers to questions regarding their names and parentage were not
satisfactory.
One of them was identified as a police
officer, 816 who had been dismissed from service and who was wanted in
connection with an offer of detention under the National Security Act. In the
light of contemporary history and in the light of the documents lound in the
possession of the accused, (to the contents of one of which we will presently
refer), the police party suspected that they were crossing the border and going
to Nepal in the course of a conspiracy to commit the offences of waging war,
etc. Their suspicion must have been strengthened by the offer of a bribe to be
allowed to cross the border. The police officer whom they apprehended, though
apparently a Punjabi, had previously served in the State of Maharashtra while
the others were from Calcutta. That several persons from different parts of the
country with no apparent connection with each other except that they appeared
to belong to the same Community were together trying to cross the country's
frontier, apparently made the police suspect, in the context of the political
situation in the country, that they belonged to some group of persons of that
community who were campaigning against the Government, call it what you will,
agitating or waging war, a suspicion which must have been further influenced by
the letters found in their possession. It may be that these circumstances may
lead to no more than suspicion but the suspicion was enough to justify an
investigation by the Police.
We may digress here and consider a submission
of Mr. Jethmalani that the letter addressed to the President showed that
Simranjit Singh Mann wanted to devote himself to the rehabilitation of those
who had suffered during the army action and the letter could never possibly be
evidence of a conspiracy to wage war against the Government. It is true that in
this long letter, there is a sentence. "In future, I will devote myself to
the rehabilitation of those who have suffered during the army action." It
is sufficient for us to mention that there is in the letter enough incendiary
material to ignite the combustible. We do not want to refer to the various
other statements made in the letter. It is possible that the effect of some of
those statements on the minds and actions of the susceptible could be disastrous.
Simranjit Singh Mann, as a highly educated
person and as a highly placed officer, was bound to emerge, on his dismissal
from service, as a hero and martyr in the eyes of a certain section of the
people. His statements would be accepted by them as gospel truths and
pronouncements of the oracle on the basis of which they should act. If the
letter remained addressed to the President and not publicised, it would cause
little or no harm. But the letter though addressed to the president was clearly
meant to be what is called an 'open letter', to be given wide publicity. Indeed
its full text had been published in the daily press and the accused them- 817
selves had such a copy in their possession when they were stopped and searched.
We do not know whether any of the accused' was responsible for the publicity
and whether it was in pursuance of the conspiracy. It may be that Simranjit
Singh Mann meant no harm and that the contents of the letter were no more than
the vehement outpourings of a bitter, and distressed but honest mind in the
zealot's jargon. On the other hand it is possible that the letter was designed
to become or became an instrument of faith and used as such.
All these are matters for evidence at the
trial.
Reverting to what we were saying earlier, if
the police officers had some justification for suspecting a conspiracy, they
would be well justified in suspecting ramifications of the conspiracy elsewhere
in the country necessitating investigation into the conspiracy in Punjab,
Delhi, Maharashtra, Calcutta and other parts of the country. If the
Investigating agency suspected a conspiracy to wage war, it was its bounden
duty to search for evidence wherever it could be found and not content itself
by reading the letters and examining the recipients of the letters. It is not
again correct to say that the case of waging war is founded entirely on the
letters addressed to the President of India, etc. and that all that was
necessary for the investigating agency to do was to examine the recipients of
the letters.
The letters are only items of evidence and
not the totality of the evidence.
From the affidavits filed on behalf of the
State of Bihar and from the records produced before us, we find that the
investigating agency conducted enquiries not only at Jogbani(Purnea), but also
at Delhi, Calcutta and Bombay and in Punjab, Maharashtra and Nepal. It is one
thing to analyse and arrange the facts and plan an orderly course of action
when all the facts are known, it is quite another thing to do when the facts are
to be discovered or unearthed, particularly in cases of suspected conspiracies
bristling with all manner of complexities and complications including those of
a sensitive, political nature, where the investigating agency has to tread
warily and with circumspection. The investigating agency cannot, therefore, be
blamed for the slow progress that they made in investigating a case of this
nature. It is true that there were what appeared to be lulls in investigation
for fairly long spells but we are unable to see anything sinister in the lulls.
We have to remember that investigation of this case was not the only task of
the investigating agency.
There must have been other cases and tasks.
In our country, the police are not only incharge of the investigation into
crimes, but they are also incharge of Law and Order. We have to take into
account the extraordinary law and order situation obtaining in various parts of
the country necessitating the placing of a great addi- 818 tional burden on the
police. We are satisfied that such delay as there was in the investigation of
this case was not wanton and that it was the outcome of the nature of the case
and the general situation prevailing in the country. We may also note in
passing that the accused in the present case do not belong to the category of
persons who are not well able to take care of themselves. They are persons who
are capable of asserting their rights whenever and wherever necessary and who
did in fact asserts their rights as and when necessary, as is evident from the
number of petitions filed before the Magistrate, and the special judge, from
time to time. We do not suggest that the ability of the accused to assert their
rights should penalise them and still the voice of protest against the delay.
But, as pointed out by Powell, J. in Barker v. Wingo (supra) and by Lord
Templeman in Bell v. DPP of Jamaica, (supra) one of the factors to be
considered in determining whether an accused person has been deprived of his
right is the responsibility of the accused for asserting his rights. It was
said:
"Whether, and how, a defendant asserts
his right is closely related to the other factors we have mentioned. The
strength of his efforts will be affected by the length of the delay, to some
extent by the reason for the delay, and most particularly by the personal
prejudice, which is not always readily identifiable, that he experiences. The
more serious the deprivation, the more likely a defendant is to complain."
Until the filing of the present writ petitions we find that there was no
serious protest by the accused about any delay.
After the charge-sheet was filed, we notice
that at least on two occasions the prosecuting agency expressed an anxiety to
have the case disposed of as expeditiously as possible. We find from the
order-sheet of the learned Special Judge that on December 19, 1985 the Public
Prosecutor filed a petition before him requesting expeditious trial of the case
as it was a case of a special importance. From the order-sheet we find that on
January 9, 1986, another petition was filed by the Public Prosecutor again
requesting that an early date may be fixed for the speedy disposal of the case.
Having regard to all the circumstances of the case, we do not think that the
delay in the investigation and in the trial of the case is so unfair as to
warrant our quashing the proceedings on the ground of infringement of the right
of the accused to a speedy trial, a part of their fundamental right under Art.
21 of the Constitution. We think that a
direction by us that the trial should start soon and proceed from day to day is
all that is called for in the present case.
819 It was strenuously contended by Shri
Jethmalani that there was no material whatsoever to warrant the framing of
charges for any of the offences mentioned in the charge- sheet other than sec.
165A. We desire to express no opinion on this question. It is not a matter to
be investigated by us in a petition under Art. 32 of the Constitution. We wish
to emphasise that this Court cannot convert itself into the court of a
Magistrate or a Special Judge to consider whether there is evidence or not
justifying the framing of charges.
Two other questions, one relating to the
jurisdiction of the Special Judge to try the accused for the offences under
secs. 121, 121A, etc. and the other the question of the link between the
offences under secs. 165-A and 165-A read with sec. 34 on the one hand and the
offences under secs. 121 and 121A etc. on the other are questions which are
awaiting the decision of the High Court of Patna and we leave those questions
to be decided by the High Court.
Another question which was raised before us
was that the Special Judge, Purnea was chosen by the Executive Government to
try the present case. The submission was that it was destructive of the very
principle of Rule of law and Equality before the Law if the Prosecutor is to be
permitted to have the Judge of his choice to try the case. Nothing as drastic
as that suggested by Mr. Jethmalani has happened.
All that has in fact happened is that a
Special Judge's court was created for Purnea Division under sec. 6 of the
Criminal Law Amendment Act and Shri Bindeshwari Prasad Verma, Additional
District Judge, West Champaran, who was under orders of transfer as Additional
District Judge, Bhagalpur was designated as the Special Judge. The case,
Jogbani P.S. No. 110/84, was mentioned within brackets as that was apparently
the only case awaiting trial in Purnea Division under the Criminal Law
Amendment Act. A Special Judge's court was created for Purnea Division as it
was thought that it would be more convenient for the accused and also in the
interests of security if the case was tried at Bhagalpur where the accused were
imprisoned rather than to have the trial of the case at Patna to which place the
accused would have to be taken from Bhagalpur for every hearing. The accused
had to be imprisoned at Bhagalpur, as already mentioned by us, in the interests
of security. We are unable to see any evil design in the creation of a Special
Judge's court for Purnea Division at Bhagalpur under the Criminal Law Amendment
Act and the designation of a Judge to preside over that court.
Shri Jethmalani urged that in the case of the
accused persons 820 other than Simranjit Singh Mann, there was nothing whatever
to connect them with the offences under secs. 121-A, 124-A, etc. It was said
that they were not even the authors of any of the letters which were found in
the course of the search.
We do not want to express any opinion except
to say that authorship of seditious material alone is not the gist of any of
the offences. Distribution or circulation of seditious material may also be
sufficient on the facts and circumstances of a case. To act as a courier is
sometimes enough in a case of conspiracy. It is also not necessary that a
person should be a participant in a conspiracy from start to finish.
Conspirators may appear and disappear from stage to stage in the course of a
conspiracy. We wish to say no more on the submission of the learned Counsel.
Whether such evidence as may now be available in the record to justify the
framing of charges is a matter for the trial court and not for us. We refrain
from expressing any opinion.
Having regard to the subsequent events that
have taken place, we think that the only appropriate direction that we can give
is to request the Patna High Court to dispose of the criminal revision petition
before it as expeditiously as possible preferably within three or four weeks.
Whatever be the outcome of the criminal revision petition, the High Court
should also direct the Special Judge or other Judge who may have to try the
case, or the one or the other of the cases as the case may be, to try the cases
expeditiously, setting a near date for the trial of the case or cases and to
proceed with the trial from day to day.
We then come to the two special leave
petitions filed by the accused persons. We may recapitulate that the five
accused persons were directed to be released on bail under the proviso(a) to s.
167(2) for the default of the prosecution in not completing the investigation
within 60 days. It may be remembered that there was no provision corresponding
to the proviso to sec. 167(2) in the old Code of Criminal Procedure. The
proviso was introduced for the first time in the new Code of 1973. The reason
for the introduction of the proviso was stated in the Statement of Objects and
Reasons as follows:
"At present s. 167 enables the
Magistrate to authorise detention of an accused in custody for a term not
exceeding 15 days on the whole. There is a complaint that this provision is
honoured more in the breach than in the observance and that the police
investigation takes a much longer period in practice. The practice of doubtful
legality has grown 821 whereby the police file a "preliminary" or incomplete
chargesheet and move the court for a remand under s. 344 which is not intended
to apply to the stage of investigation. While in some cases, the delay in the
investigation may be due to the fault of the police, it cannot be denied that
there may be genuine cases where it may not be practicable to complete
investigation in 15 days. The Commission recommended that the period should be
extended to 60 days, but if this is done, 60 days would become the rule and
there is no guarantee that the illegal practice referred to above would not
continue. It is considered that the most satisfactory solution to the problem
would be to extend the period of detention beyond 15 days whenever he is
satisfied that adequate grounds exist for granting such detention." (s.
344 of the Old Code Corresponded to s. 309 of
the present Code.) The effect of the new proviso is to entitle an accused
person to be released on bail if the investigating agency fails to complete the
investigation within 60 days. A person released on bail under the proviso to s.
167(2) for the default of the investigating agency is statutorily deemed to be
released under the provisions of Chapter 33 of the Code for the purposes of
that chapter. That is provided by the proviso to s. 167(2) itself. This means,
first, the provisions relating to bonds and sureties are attracted. S.
441 provides for the execution of bonds, with
or without sureties, by persons ordered to be released on bail. One of the
provisions relating to bonds is s. 445 which enables the court to accept the
deposit of a sum of money in lieu of execution of a bond by the person required
to execute it with or without sureties. If the bond is executed (or the deposit
of cash is accepted), the court admitting an accused person to bail is required
by s. 442(1) to issue an order of release to the officer in charge of the jail
in which such accused person is incarcerated. Sections 441 and 442, to borrow
the language of the Civil Procedure Code, are in the nature of provisions for
the execution of orders for the release on bail of accused persons. What is of
importance is that there is no limit of time within which the bond may be
executed after the order for release on bail is made. Very often accused
persons find it difficult to furnish bail soon after the making of an order for
release on bail. This frequently happens because of the poverty of the accused
persons. It also happens frequently that for various reasons the sureties
produced on behalf of accused persons may not be acceptable to the court and
fresh sureties will have to be 822 produced in such an event. The accused
persons are not to be deprived of the benefit of the order for release on bail
in their favour because of their inability to furnish bail straight away.
Orders for release on bail are effective until an order is made under s. 437(5)
or s. 439(2). These two provisions enable the Magistrate who has released an
accused on bail or the court of Session or the High Court to direct the arrest
of the person released on bail and to commit him to custody. The two provisions
deal with what is known in ordinary parlance as cancellation of bail. Since
release on bail under the proviso to s. 167(2) is deemed to be release on bail
under the provisions of Chapter XXXIII, an order for release under the proviso
to s. 167(2) is also subject to the provisions of s. 437(5) and 439(2) and may
be extinguished by an order under either of these provisions.
It may happen that a person who has been
accepted as a surety may later desire not to continue as a surety. Section 444
enables such a person, at any time, to apply to a Magistrate to discharge a
bond either wholly or so far as it relates to the surety. On such an
application being made, the Magistrate is required to issue a warrant of arrest
directing the person released on bail to be brought before him. On the
appearance of such person or on his voluntary surrender, the Magistrate shall
direct the bond to be discharged either wholly or so far as it relates to the
surety, and shall call upon such person to find other sufficient surety and if
he fails to do so, he may commit him to jail. (sec. 444). On the discharge of
the bond, the responsibility of the surety ceases and the accused person is put
back in the position where he was immediately before the execution of the bond.
The order for release on bail is not extinguished and is not to be defeated by
the discharge of the surety and the inability of the accused to straight away
produce a fresh surety. The accused person may yet take advantage of the order
for release on bail by producing a fresh, acceptable surety. The argument of
the learned counsel for the State of Bihar was that the order for release on
bail stood extinguished on the remand of the accused to custody under s. 309(2)
of the Code of Criminal Procedure. There is no substance whatever in this
submission. Section 309(2) merely enables the Court to 'remand the accused if
in custody.' It does not empower the Court to remand the accused if he is on
bail. It does not enable the Court to 'cancel bail' as it were. That can only
be done under s. 437(5) and s. 439(2). When an accused person is granted bail,
whether under the proviso to s.
167(2) or under the provisions of Chapter
XXXIII the only way the bail may be cancelled is to proceed under s. 437(5) or
s. 439(2).
In Natabar Parida v. State of Orissa, AIR
1975 SC 1465 the Court 823 explained the mandatory character of the requirement
of the proviso to s. 167(2) that an accused person is entitled to be released
on bail if the investigation is not completed within sixty days. The Court
said, "But then the command of the Legislature in proviso (a) is that the
accused person has got to be released on bail if he is prepared to and does
furnish bail and cannot be kept in detention beyond the period of 60 days even
if the investigation may still be proceeding. In serious offences of criminal
conspiracy-murders dacoities, robberies by interstate gangs or the like, it may
not be possible for the police, in the circumstances as they do exist in the
various parts of our country, to complete the investigation within the period
of 60 days. Yet the intention of the Legislature seems to be to grant no
descretion to the court and to make it obligatory for it to release the accused
on bail.
Of course, it has been provided in proviso
(a) that the accused released on bail under s. 167 will be deemed to be so
released under the provisions of Chapter XXXIII and for the purposes of that
Chapter. That may empower the court releasing him on bail, if it considers
necessary so to do to direct that such person be arrested and committed to
custody as provided in sub- section (5) of s. 437 occuring in Chapter XXXIII.
It is also clear that after the taking of the
cognizance the power of remand is to be exercised under s. 309 of the New Code.
But if it is not possible to complete, the investigation within a period of 60
days then even in serious and ghastly types of crimes the accused will be
entitled to be released on bail. Such a law may be a "paradise for the
criminals," but surely it would not be so, as sometimes it is supposed to
be because of the courts. It would be so under the command of the
Legislature." In Bashir v. State of Haryana, [1977] (4) SCC 410, the
question arose whether a person who has been released under the proviso to s.
167(2) could later be committed to custody merely because a challan was
subsequently filed. The court held that he could not be so committed to
custody. But, the bail could be cancelled under s. 437(5) if the court came to
the conclusion that there were sufficient grounds, after the filing of the
challan to believe that the accused had committed a nonbailable offence and
that it was necessary to arrest him and commit him to custody. The court said,
824 "Sub-section (2) of Section 167 and proviso (a) thereto make it clear
that no Magistrate shall authorise the retention of the accused person in
custody under this section for a total period exceeding sixty days. On the
expiry of sixty days the accused person shall be released on bail if he is prepared
to and does furnish bail. So far there is no controversy. The question arises
as to what is the position of the person so released when a challan is
subsequently filed by the police." * * * * "Sub-section (5) to
section 437 is important. It provides that any court which has released a
person on bail under sub-section (1) or sub- section (2), may, if it considers
it necessary so to do, direct that such person be arrested and commit him to
custody. As under Section 167(2) a person who has been released on the ground
that he had been in custody for a period of over sixty days is deemed to be
released under the provisions of Chapter XXXIII, his release should be
considered as one under s. 437(1) or (2). Section 437(5) empowers the court to
direct that the person so released may be arrested if it considers it necessary
to do so. The power of the court to cancel bail if it considers it necessary is
preserved in cases where a person has been released on bail under s. 437(1) or
(2) and these provisions are applicable to a person who has been released under
Section 167(2). Under Section 437(2) when a person is released pending inquiry
on the ground that there are not sufficient grounds to believe that he has
committed a nonbailable offence may be committed to custody by court which
released him on bail if it is satisfied that there are sufficient grounds for
so doing after inquiry is completed. As the provisions of Section 437(1), (2)
and (5) are applicable to a person who has been released under section 167(2) the
mere fact that subsequent to his release a challan has been filed, is not
sufficient to commit him to custody. In this case the bail was cancelled and
the appellants were ordered to be arrested and committed to custody on the
ground that subsequently a chargesheet had been filed and that before the
appellants were directed to be released under Section 167(2) their bail
petitions were dismissed on 825 merits by the Session Court and the High Court.
The fact that before an order was passed
under Section 167(2) the bail petitions of the accused were dismissed on merits
is not relevant for the purpose of taking action under Section 437(5).
Neither is it a valid ground that subsequent
to release of the appellants a challan was filed by the police. The Court before
directing the arrest of the accused and committing them to custody should
consider it necessary to do so under Section 437(5). This may be done by the
Court coming to the conclusion that after the challan had been filed there are
sufficient grounds that the accused had committed a non-bailable offence and
that it is necessary that he should be arrested and committed to custody. It
may also order arrest and committal to custody on other grounds such as
tampering of the evidence or that his being at large is not in the interests of
justice. But it is necessary that the Court should proceed on the basis that he
has been deemed to have released under Section 437(1) and (2)." In Talab
Hazi Hussain v. Mondkar, AIR 1958 SC 376 a case arising under the old code, the
court considered the grounds on which bail might be cancelled. It was said.
"There can be no more important
requirement of the ends of justice than the uninterrupted progress of a fair
trial; and it is for the continuance of such a fair trial that the (inherent)
powers of the High Courts are sought to be invoked by the prosecution in cases
where it is alleged that accused persons, either by suborning or intimidating
witnesses, are obstructing the smooth progress of a fair trial. Similarly, if
an accused person who is released on bail jumps bail and attempts to run to a
foreign country to escape the trial, that again would be a case where the
exercise of the (inherent) power would be justified in order to compel the
accused to submit to a fair trial and not to escape its consequences by taking
advantage of the fact that he has been released on bail and by absconding to
another country. In other words, if the conduct of the accused person
subsequent to his release on bail puts in jeopardy the progress of a fair trial
itself and if there is no other remedy which can be effectively used against
the accused person, in such a case the (inherent) power of the High Court can
be legitimately 826 invoked. In regard to non-bailable offences there is no
need to invoke such power because s. 497(5) specifically deals with such
cases." The result of our discussion and the case-law in this:
An order for release on bail made under the
proviso to s. 167(2) is not defeated by lapse of time, the filing of the
chargesheet or by remand to custody under s. 309(2). The order for release on
bail may however be cancelled under s. 437(5) or s. 439(2). Generally the
grounds for cancellation of bail, broadly, are, interference or attempt to
interfere with the due course of administration of justice, or evasion or
attempt to evade the course of justice, or abuse of the liberty granted to him.
The due administration of justice may be interfered with by intimidating or
suborning witnesses, by interfering with investigation, by creating or causing
disappearance of evidence etc. The course of justice may be evaded or attempted
to be evaded by leaving the country or going underground or otherwise placing
himself beyond the reach of the sureties. He may abuse the liberty granted to
him by indulging in similar or other unlawful acts. Where bail has been granted
under the proviso to s.
167(2) for the default of the prosecution in
not completing the investigation in sixty days, after the defect is cured by
the filing of a chargesheet, the prosecution may seek to have the bail
cancelled on the ground that there are reasonable grounds to believe that the
accused has committed a non-bailable offence and that it is necessary to arrest
him and commit him to custody. In the last mentioned case, one would expect
very strong grounds indeed.
In the present case, the High Court and
following the High Court, the Special Judge have held that the order for
release on bail came to an end with the passage of time on the filing of the
chargesheet. That we have explained is not a correct view. The question now is
what is the appropriate order to make? The order for release on bail was not an
order on merits but was what one may call an order-on- default, an order that
could be rectified for special reasons after the defect was cured. The order
was made long ago but for one reason or the other, the accused failed to take
advantage of the order for several months. Probably for that reason, the
prosecuting agency did not move in the matter and seems to have proceeded on
the assumption that the order had lapsed with the filing of the chargesheet.
The question is should we now send the matter down to the High Court to give an
opportunity to the prosecution to move that court for cancellation of bail?
Having regard to the entirety of the 827 circumstances, the long lapse of time
since the original order for bail was made, the consequent change in
circumstances and situation, and the directions that we have now given for the
expeditious disposal of the case, we do not think that we will be justified in
exercising our discretion to interfere under Art. 136 of the Constitution in
these matters at this stage. The special leave petitions are, therefore,
dismissed. Nothing that we have said is to be construed as an expression of
opinion on the merits of the case.
M.L.A. Petitions dismissed.
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