Supreme Court of India

Bashir And Others vs State Of Haryana on 3 October, 1977

Supreme Court of India
Bashir And Others vs State Of Haryana on 3 October, 1977
Equivalent citations: 1978 AIR 55, 1978 SCR (1) 585
Author: P Kailasam
Bench: Kailasam, P.S.
           PETITIONER:
BASHIR AND OTHERS

	Vs.

RESPONDENT:
STATE OF HARYANA

DATE OF JUDGMENT03/10/1977

BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
FAZALALI, SYED MURTAZA

CITATION:
 1978 AIR   55		  1978 SCR  (1) 585
 1977 SCC  (4) 410
 CITATOR INFO :
 RF	    1986 SC2130	 (31)
 R	    1987 SC 149	 (21)


ACT:
Criminal  Procedure Code 1973--Ss. 167 (2) 437 (1)  and	 (5) -Grant  of ba
il-Release of an accused because  challan  not
filed within 60 days from arrest-Deemed bail-If bail can  be
cancelled as soon as challan is filed.



HEADNOTE:
The three appellants along with 8 others were prosecuted for
offences  u/s. 302 read with s. 149 I.P.C. for	causing	 the
death  of one Sagru.  The F.I.R. was lodged on	December  2,
1975 and the three appellants and 8 others were arrested  on
the same day.  Though the other 8 were released on bail, the
bail  applications of the three appellants were rejected  by
the Sessions Court because they were alleged to have  caused
the  injuries.	The High Court also declined to	 grant	them
bail by an order dated February 5, 1976.  As no challan	 was
filed by the police in the case within 60 days from the date
of  the arrest of the appellants they were released on	bail
on February 23, 1976 u/s 167(2) Cr.P.C. 1973.  Subsequently,
the police filed a challan and the Magistrate committed	 all
the eleven accused to the Sessions Court.
An  application	 for  cancellation  of the  bail  of  the  3
appellants was filed before the Sessions Court on the ground
that  their  petitions for grant of bail  were	rejected  on
merits	both  by the Sessions Court and the High  Court	 and
that since challenge were filed the court should cancel	 the
bail.	The  Sessions Judge relying on 1975 PLJ	 (Cri.)	 143
(Ajaib	 Singh	 v.   State  of	 Punjab)   held	  that	 the
considerations for grant of bail at the stage when no report
U/s 173 Cr.P.C. was filed was entirely different because  if
the report is not produced within 2 months, the Court has no
option	but to grant bail to the accused  howsoever  heinous
the nature of the offence may be.  Holding that when once  a
report	under  s. 173 Cr.P.C. is filed by  the	police,	 the
court  has  jurisdiction to cancel the	bail,  the  Sessions
Court allowed the above application and cancelled the bail.
An appeal against the order of the Sessions Judge cancelling
the bailwas  dismissed by the High Court.
The  view  taken  by the High Court was	 challenged  in	 the
appeal beforethis Court	 by  special leave on  the  ground
that when once the bail is grantedu/s.	    1672)   Cr.P.C.
it cannot be cancelled on the mere ground that	subsequently
the  police had filed a challan but that the bail order	 can
only be cancelled under the provision of s. 437(5) Cr.P.C.
Section 167(2) of the Criminal Procedure Code, 1973 empowers
the Magistrate to authorise the detention of the accused  in
custody	 for  a term, not, exceeding 15 days in	 the  whole.
The  proviso,  however, provides that  no  Magistrate  shall
authorise  the	detention of the accused person	 in  custody
under that section for a total period exceeding 60 days	 and
that  on  the expiry of the said period of  sixty  days	 the
accused	 person shall be released on bail if he is  prepared
to  and does furnish bail and that every person released  on
bail  under that section shall be deemed to be	so  released
under  the  provisions of Chapter  XXXIII.   Section  437(1)
provides that any person accused of or suspected of the com-
mission	 of any nonbailable offence may be released on	bail
but  that  he  shall  not  be  released	 if  there   appears
reasonable grounds for believing that he has been guilty  of
an  offence punishable with death or imprisonment for  life.
Sub-section  (2) of s. 437 empowers the court to release  an
accused	 if there are not reasonable grounds  for  believing
that  the  accused  has committed  a  non-bailable  offence.
Section 437(5) provides that any court which has released  a
person on bail under sub-s. (1 ) or sub-s. (2) might, if  it
considers it necessary, so to do. direct that such person be
arrested and may be committed to custody.
586
Allowing the appeal,
HELD : (1) As under s. 167(2) a person who has been released
on  the ground that he had been in custody for a  period  of
over  60 days is deemed to be released under the  provisions
of  Chapter XXXIII, his release should be considered as	 one
u/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 powers of the court to
cancel bail if it considers it necessary is preserved in was
s where a person has been released on bail u/s 437(1) or (2)
and these provisions are applicable to a person who has been
released u/s. 167(2) [589 G-H, 590 A]
(2)As  the  provisions	of  s. 437(1),	(2)  and  (5)  are
applicable  to a person who has been released  u/s.  167(2),
the mere fact that subsequent to his release a challan hasbeen
filed  is not sufficient to commit him to custody.  In	this
case the bail wascancelled   and  the	appellants   were
ordered to be arrested and committed tocustody	  on	the
ground	that subsequently a charge sheet had been filed	 and
that before the appellants were directed to be released	 u/s
167(2),	 their	bail petitions were dismissed on  merits  by
Sessions Court and the High Court. [590 B-C]
(3)The	court before directing the arrest of  the  accused
and committing them tocustody	 should	   consider    it
necessary to do so u/s 437(5).	This may be done bythe
court  coming to the conclusion that after the challan	,lad
been filed there are sufficient grounds that it is necessary
that he should be arrested and committed to custody.  It  is
necessary that the court should proceed on the basis that he
has  been deemed to have been released under s.	 437(1)	 and
(2). [590 D-E]
Ram Pal Singh and Others v. State of U.P. 1976 Cr.L.J.	288,
approved.
The  bail u/s. 167(2) Cr.P.C. has the same incidents as	 the
bail  granted  Linder Chapter XXXIII and is  accordingly  to
remain valid till it is cancelled, and the cancellation of a
bail can only be on the grounds known to law and the receipt
of the charge sheet in court can by itself be no ground	 for
cancellation of the bail. [590 F-G]
(4)The cancellation of bail for the reasons stated by  the
High Court is not sound. [590 H]



JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 517
of 1976.

Appeal by Special Leave from the Judgment and Order dated
27-8-1976 of the Punjab & Haryana High Court in Criminal
Misc. No. 4090-M of 1976.

S. K. Mehta and P. N. Puri for the Appellants.
H. S. Marwah and S. N. Sachthey for the Respondent.
The judgment of the Court was delivered by
KAILASAM, J. This appeal is by special leave by the three
appellants against the judgment of the High Court of Punjab
and Haryana in Criminal Miscellaneous No. 4090-M of 1976
dismissing an application under section 439, Criminal
Procedure Code, praying that the appellants be released on
bail during the pendency of their trial in a case under
section 304 read with section 148, Indian Penal Code.
The facts of the case are briefly as follows. The three
appellants, Bashir, Kundan and Sadie, along with eight
others are being prosecuted for offences under section 302
read with section 149, section
587
347 read with section 149 and section 148 read with section
147 Indian Penal Code, for causing the death of one Sagru
and grievous and simple injuries to three others. While
eight others were released or bail, the appellants were
refused bail as it was alleged that they caused injuries to
Sagru. The First Information Report of the offence was
lodged on December 2, 1975 and the three appellants and
eight others were arrested on the same day. Though the
other eight accused were released on bail, the bail
application of the three appellants was rejected by the
Sessions Court on December 15, 1975. The High Court also
declined to release them on bail by an order dated February
5, 1976. But as no challan was filed by the police in the
case within sixty days from the date of the arrest of the
appellants they were released on bail on February 23, 1976
under section 167(2) of the Criminal Procedure Code.
Subsequently the police filed challan and the Magistrate
committed all the eleven accused to the Sessions Court and
released them including the appellants on bail.
The complainant filed an application, out of which this
appeal arises, before the Sessions Court for cancellation of
the bail to the three appellants on the ground that their
petitions for grant of bail were rejected on merits both by
the Sessions Court and the High Court. The Sessions Judge
relying on a decision of the Punjab High Court reported in
1975 PLJ (Cr1.) 143-Ajaib Singh vs. State of Junjab-held
that the considerations for grant of bail at the stage when
no report under section 173, Criminal Procedure Code, was
filed were entirely different because if the report is not
produced within two months, the court has no, option but to
grant bail to the accused howsoever the heinous nature of
the offence may be. Holding that when once a report under
section 173, Criminal Procedure Code, is filed by the police
the court has jurisdiction to cancel, the bail allowed the
application of the complainant and cancelled the bail.
An appeal against the order of the Sessions Judge cancelling
the bail was dismissed by the High Court. It was contended
before the High Court that when the appellants were released
under the proviso to section 167(2) of the Code of Criminal
Procedure unless there was an allegation of misconduct or
misuse of the terms of the bail bond by them the bail order
could not be withdrawn. It was further contended that the
order of bail could be, cancelled only under the provisions
of section 437(5), Criminal Procedure Code, as the order of
bail passed under section 167(2) is deemed to be a bail
order passed under Chapter XXXIII, Criminal Procedure Code.
Disagreeing with the contention of the learned counsel for
the appellants, the High Court held as follows
“The order of bail is passed by the Magistrate
in such cases only because of the
technicalities in law, that is the failure of
the investigating agency to discharge its
duties in time in presenting the challan
against the accused within the period directed
by section 167, Criminal Procedure Code. This
bail order is not on merits of the case. As
soon as that ground for which the court has no
option but
588
to release the accused on bail is fulfilled or
complied with by the investigating agency, the
Magistrate or the court of Session or the High
Court can on that ground cancel the bail
allowed earlier. When such an order of
cancellation is passed it is to be presumed
that the court, while cancelling the bail, has
taken into consideration the final report of
the police laid against the accused, first
information report, statement under section
161, Criminal Procedure Code, and the other
material collected by the police during the
investigation of the case.”

The view taken by the High Court is challenged in the appeal
before us. It was submitted that when once the bail is
granted under section 167(2), Criminal Procedure Code, it
cannot be cancelled on the mere ground that subsequently the
police had filed a challan but that the bail order can only
be cancelled under the provisions of section 437(5),
Criminal Procedure Code.

We will now refer to the relevant provisions of the Criminal
Procedure Code. Section 167(2) of the Criminal Procedure
Code, Act 2 of 1974, is as follows :–

“The Magistrate to whom an accused person is
forwarded under this section may, whether he
has or has not jurisdiction to try the case,
from time to time, authorise the detention of
the accused in such custody as such Magistrate
thinks fit, for a term not exceeding fifteen
days in the whole; and if he has no
jurisdiction to try the case or commit it for
trial, and considers further detention
unnecessary, he may order the accused to be
forwarded to a Magistrate having such
jurisdiction
Provided that–

(a) the Magistrate may authorise detention
of the accused person, otherwise than in
custody of the police, beyond the period of
fifteen days if he is satisfied that adequate
grounds exist for doing so, but no Magistrate
shall authorise the detention of the accused
person in custody under this section for a
total period exceeding sixty days, and on the
expiry of the said period of sixty days, the
accused person shall be released on bail if he
is prepared to and does furnish bail; and
every person released on bail under this
section shall be deemed to be so released
under the provisions of Chapter XXXIII for the
purposes of that Chapter;”

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
589
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. The last sentence in
proviso (a) is relevant. It is “and every person released
on bail under this section shall be deemed to be so released
under the provisions of Chapter XXXIII for the purposes of
that Chapter”. Chapter XXXIII contains provisions as to
bail and bonds. The relevant sub-sections (1) and (2) of
section 437 are
“(1) When any person accused of or suspected
of the commission of any non-bailable offence,
is arrested or detained without warrant by an
officer in charge of a police station or
appears or is brought before a Court other
than the High Court or Court of Session, 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
x x x
x
(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.”

Sub-section (1) of section 437 provides as to when bail may
be taken in case of a non-bailable offence. A person
accused of a non-bailable offence may be released by a court
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. The two
provisos to sub-section (1) are not material and need not be
considered. ‘Sub-section (2) to section 437 provides that
if the investigating officer or the court at any stage of
the investigation, inquiry or trial, as the case may be, is
of opinion that there are no reasonable grounds for
believing that the accused has committed a non-bailable
offence, but there are sufficient grounds for further
inquiry into his guilt, pending such inquiry, the accused
shall be released on bail. Subsection (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
section 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
590
has been released on bail under section 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 had committed
a non-bailable 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 107(2) their bail petitions were
dismissed on merits by the Sessions Court and the High
Court. The fact that before an order was passed under sec-
tion 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 nonbailable 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 been released under sections 437(1) and (2).
The learned counsel appearing for the respondents referred
to decisions of the various High Courts in 1976 Cr.
L.J.118, 1976 Cr. L. J. 288, 1977 Cr. L.J. 104, 1977 Cr.
L.J., 394 and 1977 Cr.L.J. 486. These decisions except Ram
Pal Singh and Others v. State of U.P.(1) are not on the
point and therefore need no discussion. In Rain Pal Singh
and Others vs. State of U.P. a single Judge of the
Allahabad High Court held that the bail under section
167(2), Criminal Procedure Code, has the same incidents as
the bail granted under Chapter XXXIII, and is accordingly to
remain valid till it is cancelled and the cancellation of a
bail canonly be on the grounds known to law and the receipt
of the chiargesheet in court can by itself be no ground for
cancellation of the bail. The view expressed by the learned
Judge is correct in law.

In the result we hold that the cancellation of the bail for
the reasons stated by the High Court is not sound and direct
that the appellants be set at liberty.

P.H.P.

Appeal allowed.

(1) 1976Cr. L.J.288.

591