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Report No. 41

39.7. Section 497(5) and section 498.-

Section 497(5) and section 498 relate to similar matters, and can be considered together. Further, section 498 is a composite section in which two distinct matters, which are not closely connected, have been put in one sentence. In the interests of clarity1 a r.-casting of these provisions appears to be desirable. The main ideas found in section 497(5) and section 498 are

(i) power of a Court which has released a person on bail to direct his arrest and to commit him to custod.-section 497(5), in part;

(ii) special powers of the High Court and Court of Sessio.-

(a) to order release of any person section 498(1), second part; and

(b) to order that a person released on bail under section 497 or section 498(1) be arrested and to commit him to custod.-earlier part of section 497(5) and section 498(2);

(iii) amount of the bond not to be excessive, and power of the High Court or Court of Session to reduce the bail required by a police officer or a Magistrat.-section 498(1), in part.

It will be noticed that the first is a general power conferred on all courts; the second is a special power of the superior courts; and the third is an ancillary power.

We propose to put the first as section 497(3A), so that it will appear immediately after the first three su.-sections.-the su.-sections which relate to release on bail. [In consequence, existing su.-section (3A) will require re¬numbering as su.-section (3B)1.

The second will, in view of its importance, form a separate sectio.-section 497B.

The third may be retained in section 498.

Along with this r.-arrangement of the provisions, some changes in their content are also desirable.

First, as regards the power of a court to cancel bail granted by it, the relevant part of section 497(5) is obviously intended to apply to the High Court or Court of Session also, when bail is granted by that Court. The words "every other Court", however, create a contrary impression, and we propose to substitute the words "any court" in their place, to correct this impression.

As regards the second proposition stated above, the power of the superior courts fails under two head.-

(a) power to direct release on bail, and

(b) power to direct arrest of a person released on bail.

The power under head (a) above is expressed in section 498(1) where it says that "the High Court or Court of Session may, in any case whether there be an appeal on conviction or not, direct that any person be admitted on bail". The words "in any case" are, apparently, intended to emphasise that the power is wide enough to embrace both bailable and no.-bailable offences. We think that the language should be made more precise. The power is meant to apply to a person accused of an offence and in custody, and the words "admit to bail" have been judicially construed as having the same meaning as "release on bail2".

Lastly, the words "whether there be an appeal on conviction or not" are unnecessary and confusing, and should be omitted.

The power Under head (b) is now contained partly in su.-section (5) of section 497, where it authorises the superior courts to "cause any person who has been released under this section to be arrested" and "to commit him to custody.-and partly in su.-section (2.-where it authorises the superior court, to "cause any person who has been admitted to bail (under section 498) to be arrested" and "to commit him to custody". Together, these two cases cover cancellation by a superior courts of the bail granted to a person

(i) released on bail by an inferior court3 in a case relating to no.-bailable offence; or

(ii) released on bail in a case where the release was ordered under its special power by the superior court itself.

They do not cover cancellation of bail granted in a case relating to a bailable offence4 under section 496.

Now, it is wel.-established that the High Court has power to cancel bail even where it was granted in a case relating to a bailable offence. The existence of this power of the High Court has been put beyond doubt by a series of decisions of the Supreme Court5, and of the High Courts6. The absence of an express provision in this respect was described as a "lacuna" in one of the judgments of the Supreme Court7, and we think that, instead of leaving the matter to the inherent powers of the High Courts, it should be expressly provided for in this Chapter, and the power could be given to Courts of Session as well. For this reason, release under section 496 is expressly proposed to be mentioned in the amendment which we suggest regarding section 498.

As regards the third propositio.-amount of bail and reduction thereo.-no changes are necessary in the substance of the powers as provided in section 498(1).

A suggestion has been made by two High Court Judges8 to the effect that the trial court should also have power to cancel bail at the close of arguments, even if the bail was granted by a superior court. We presume that the object behind the suggestion is to cover cases where, at the close of the arguments, the court considers it very likely that it will sentence the accused to imprisonment. We would, however, prefer to leave the law as it is. When the judgment is pronounced, the accused will be required to attend the court to hear the judgment pronounced.9 Ordinarily, no serious mischief could be caused by the accused remaining on bail in the interval.

Where a Court 'A' grants bail in a case and the case is subsequently transferred to Court 'B', can Court 'B' cancel the bail granted by Court 'A' ? This question arose in a Bombay case10, where the High Court approved of the cancellation by the transferee court. But the judgment lays stress on the inherent power of the court, and it was suggested to us that this leaves the position doubtful, and that some clarification may be desirable. We do not, however, think it necessary to suggest an amendment. As a general rule, it is implied that a transferee court can deal with the case in the same manner as the original court, and this implication need not be expressed.

1. Cf. criticism of section 498 in Amir Chand, AIR 1950 EP 53, in the judgment of Khosla J.

2. See discussion in Amir Chand, AIR 1950 EP 53.

3. Section 497(5), in so far as it relates to cancellation of bail by the court which granted it, has been already dealt with.

4. The scope of section 496 is somewhat wider, as it applies to "any person other than a person accused of a no.-bailable offence". But we are concerned here with a person accused of a bailable offence.

5. Talab, 1958 SCR 1226: AIR 1958 SC 376; Ratilal Bhanji, AIR 1967 SC 1639 (judgment of Bachawat J.); Pampapathy, (1967) 1 SCR 115: AIR 1967 SC 286 (Judgment of Ramaswami J.).

6. See for example Panna Lal, AIR 1967 All 394 (397).

7. Talab, 1958 SCR 1226: AIR 1958 SC 376.

8. F. 3(2)/5.-L.C., Pt. II, S. No. 33(b), p. 137, (Suggestion of two High Court Judges).

9. Section 366(2).

10. Emp. v. Routmal, ILR 1941 Born 38: AIR 1940 Born 41.

39.3. Revised sections 497(3A), 498 and 498A.-

In the light of the above discussion, we recommend that in section 497, after su.-section (3), the following su.-section be inserted.-

"(3A) Any Court which has released a person on bail under su.-section (1) or su.-section (2) may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody."

Existing su.-section (3A) may be renumbered as su.-section (3B) and existing su.-section (5) may be omitted. Instead of section 498, we may have the following section.-

"498. Special powers of High Court or Court of Sessions regarding bail.- (1) A High Court or Court of session may direc.-

(a) that any person accused of an offence and in custody be released on bail; or

(b) that any condition imposed by the Magistrate when releasing any person on bail be set aside or modified1, or

(c) that any person who has been released on bail under clause (a) or under section 496 or section 497 be arrested and commit him to custody.

(2) When a person accused or suspected of the commission of an offence; punishable with imprisonment for a period which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code, or of the abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under su.-section (1) by the High Court or Court of Session, that Court may impose any condition which it considers necessar.-

(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

(c) otherwise in the interests of justice2.

"498A. Amount of bond and reduction thereof.-(1) The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive.

(2) The High Court or Court of Session may direct that the bail required by a police officer or Magistrate be reduced."

1. See 36th Report.

2. Ibid.

39.9. Anticipatory bail.-

The suggestion for directing the release of a person on bail prior to his arrest (commonly known as "anticipatory bail") was carefully considered by us. Though there is a conflict of judicial opinion about the power of a Court to grant anticipatory bail, the majority view is that there is no such power under the existing provisions of the Code. The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false cause for the purpose of disgracing them or for other purposes by getting them detained in jail for some days.

In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases, where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in prison for some days and then apply for bail.

We recommend the acceptance of this suggestion. We are further of the view that this special power should be conferred only on the High Court and the Court of Session, and that the order should take effect at the time of arrest or thereafter.

In order to settle the details of this suggestion, the following draft of a new section is placed for consideration.-

"497A. Direction for grant of bail to person apprehend arrest.- (1) When any person has a reasonable apprehensiun that he would be arrested on an accusation of having committed a no.-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section. That Court may, in its discretion, direct that in the event of his arrest, he shall be released on bail.

(2) A Magistrate taking cognizance of an offence against that person shall, while taking steps under section 204(1), either issue summons or a bailable warrant as indicated in the direction of the Court under sub¬section (1).

(3) If any person in respect of whom such a direction is made is arrested without warrant by an officer in charge of a police station on an accusation of having committed that offence, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, such person shall be released on bail."

We considered carefully the question of laying down in the statute certain conditions under which alone anticipatory bail could be granted. But we found that it may not be practicable to exhaustively enumerate those conditions; and moreover, the laying down of such conditions may be construed as prejudging (partially at any rate) the whole case. Hence we would leave it to the discretion of the court and prefer not to fetter such discretion in the statutory provision itself. Superior courts will, undoubtedly, exercise their discretion properly, and not make any observations in the order granting anticipatory bail which will have a tendency to prejudice the fair trial of the accused.

39.10. Section 499.-

With reference to section 499, various suggestions1-2 have been received by us regarding the procedure for verification of sureties, e.g., that in every case the court must make an inquiry regarding sufficiency of the sureties; or that house tax and income tax receipts should be enough to vouch for solvency of the sureties. In our opinion, these are matters which can be more conveniently dealt with by rules and practice rather than by elaborate provisions in the Code. We do not, therefore, suggest any amendment in this respect. In consequence of the recommendation3 regarding grant of bail with a condition, it is desirable to add the following su.-section in section 499:

"(1A) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition.

1. Suggestion of the Intelligence Bureau, Home Ministr.-F. 3(2)/5.-L.C., Pt. IV, S. No. 122.

2. F. 3(2)/5.-L.C., Pt. II, S. No. 33, p. 99 (Suggestion of the Government of U.P.).

3. See para. 39, above.

39.11. Sections 500 to 502.- No changes are needed in sections 500 to 502.

Code of Criminal Procedure, 1898 Back

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