AHER GHELA RAMSHI v. STATE — 1975 DIGILAW 97 (GUJ)

T. U. MEHTA, J. ( 1 ) THE petitioners herein are the persons who are sought to be tried for the offences under sec. 147 148 149 and 302 read with sec. I. P. C. as well as secs. 25 (1) (A) of the Indian Arms Act. It is said that they formed an unlawful assembly and committed the murder of one Hama Sidabhai. The case of the prosecution is that during the scuffle the complainant Jetubha who happens to be a police constable at village Kalyanpur tried to intervene but he was prevented by petitioners nos. 2 and 4 who are Aher Lakhman Bogha and Aher Desur Ramshi. It is said that thereafter even this constable was stabbed by the person named Nathu Ramshi. ( 2 ) THE facts of the case reveal that when the proceedings were pending before the committing Megistrate the petitioners were enlarged on bail under sub-sec. (2) of sec. 167 of the Code of Criminal Procedure 1973 which is hereinafter referred to as the new Code. Thereafter on 15-7-75 the learned Magistrate Committed the case for trial to the Sessions court. On that date the petitioners S applied to the learned committing Magistrate to continue the bail which was already granted to them under sec. 167 of the new Code. The learned Magistrate granted the request and continued the petitioners on bail only upto 29th July 1975 Thereafter on 29th July 1975 the petitioners approached the Sessions Court and requested the said court to allow them to continue on bail. The court of Sessions initially passed the order for bail pending the hearing of that application treating the said application as one for obtaining a fresh order of bail. When the application came up for hearing it was contended by the petitioners that the Sessions court was not authorised to hear the application as one of allowing the petitioners to be enlarged on fresh bail because the only request which the petitioners had made was to allow them to continue on bail. It was contended on behalf of the applicants that hearing of their application on merits would be tantamount to cancellation of bail granted by the learned Magistrate which was not permissible. It was contended on behalf of the applicants that hearing of their application on merits would be tantamount to cancellation of bail granted by the learned Magistrate which was not permissible. The learned Sessions Judge thereupon framed a question as to whether the hearing of the application to allow the applicants to continue on bail would be tantamount to cancellation of bail already granted by the learned Magistrate The learned Sessions Judge answered this question in the negative and thereafter proceeded to consider whether any of the applicants deserved to be released on bail. As a result of this order the learned Sessions Judge refused bail to the petitioners not. 1 to 4 but allowed petitioner no. 5 and others to be enlarged on bail. Thus the petitioner no. 5 Aher Somat Kana is found to he already on bail and therefore so far as that petitioner is concerned _ Shri Raval is permitted to delete his name as one of the petitioners of this application. The matter which now remains to be considered is only with regard to petitioners nos. 1 and 4. 3 The contention which is raised by Shri Raval during the course of the hearing of this application is somewhat different from the one which was raised on behalf of the petitioners before the leaned Sessions Judge. Here Shri Raval has contended that once the accused person is enlarged on bail under the provisions contained in sub-sec. (2) of sec. 167 of the new Code said accused must be allowed to continue on bail even after the case is committed to the Sessions court unless the hail is specifically cancelled for sufficient reasons under sub-sec. (5) of sec. 437 of the new Code. To fortity this contention Shri Raval has made an attempt to seek support from some of the observations made by Division Bench of this court in UMEDSINH VAKMATJI JADEJA and ORS. V. STATE OF GUJARAT (1975) 16 G. L. R. 572. ( 3 ) IN the above referred case of Umedsinh the question which was involved was whether in cases wherein the provisions of sub-sec. (2) of sec. 167 of the new Code are attracted the accused persons can claim bail as of right even though pending his application of bail the police has submitted the charge sheet. ( 3 ) IN the above referred case of Umedsinh the question which was involved was whether in cases wherein the provisions of sub-sec. (2) of sec. 167 of the new Code are attracted the accused persons can claim bail as of right even though pending his application of bail the police has submitted the charge sheet. There was a difference of opinion on this question in that case and therefore the Division Bench resolved that question and came to the conclusion that if pending the application for bail under sub-sec. (2) of sec. 167 of the new Code a charge sheet is filed in court the investigation comes to an end and so also the power of the Magistrate of granting bail to the Accused under the provisions of sec. 167 (9) of the new Code. It is further observed therein that the Magistrate can exercise powers of granting of bail in such cases only under sec. 437 of the new Code. In this connection the Division Bench has made son observations Which ate pertinent to the facts of this case. I shall There fore; shortly refer to these observations. The court after considering the provisions of sec. 167 (2) and 437 of the new Code has observed that both these sections operate in different fields because under sec. 167 (2) the Magistrate has to exercise his power of releasing on bail on the simple ground that the total period of detention of the accused has exceeded 60 days during the course of investigation of police. Then the court has observed as under: but this power is to be exercised during the pendency of investigation only. The power under sec. 167 (2) of granting bail cannot be exercised by the Magistrate when the investigation is over or to put in other words when he takes cognizance of the case either under the provisions of sec. 170 or 173 of the Code. If the Magistrate takes congnizance of the offence under either of the aforesaid sections the Magistrate can exercise power only under sec 437 of the Code. After having said this the court has made the following observations on which Shri Raval has put good deal of reliance during the course of the hearing of this petition. If the Magistrate takes congnizance of the offence under either of the aforesaid sections the Magistrate can exercise power only under sec 437 of the Code. After having said this the court has made the following observations on which Shri Raval has put good deal of reliance during the course of the hearing of this petition. If in a case the investigation is not completed within the period of 60 days and the accused is released on bail under the provisions of sec. 167 of the Code then the order of bail operates even after the charge sheet is filed. This is so because of the deeming fiction provided in proviso (1) to sub-sec. (9) of sec. 167 of the Code. The proviso provides that 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. The effect of these provisions is that if a person is released on bail during the pendency of investigation the order of release on bail operates even after the charge sheet is filed. The deeming fiction is very widely worded. Under the said deeming provisions every person released on bail under the provisions of sec. 167 shall be deemed to be released under the provisions of Chapter XXXIII for the purposes of that Chapter. The effect of this deeming provision is that if an accused person is released on bail as per the provisions of sec 167 (2) (a) the bail order continues even after the charge sheet is filed. But in view of the provisions of deeming fiction it is open to the prosecution to make an application for cancellation of bail under the provisions of sub-see. (5) of sec. 437 of the Code. Relying upon these observations Shri Raval contended that since this has observed therein that the order of bail passed under sec. 167 of the Code operates even after the charge sheet is filed said bail order should continue even after the accused is committed to the Sessions court to stand his trial. According to Shri Raval therefore if the accused is required to be taken in custody specific order for cancellation of bail under sub 6 (5) of sec. 437 of the Code should be passed. According to Shri Raval therefore if the accused is required to be taken in custody specific order for cancellation of bail under sub 6 (5) of sec. 437 of the Code should be passed. ( 4 ) BEFORE stating the implications of the above quoted observations of this court in the above referred Division Bench decision it should be noted that the whole argument can be cut short by pointing out that if it is found that even when a particular accused is committed to the court or Sessions to stand his trial specific orders cancelling the bail are required to be passed under sub-sec. (5) of sec. 437 of the Code the said cancellation order is as a matter of fact found in this case because as already stated above on the petitioners application the committing Magistrate has passed the order to allow them to remain on bail only upto 9 July 1975 That order on the face of its shows that the accused were allowed to remain on bail only upto 29th July 1975 which means that after the expiry of the date of 29th July 1975 the bail order was not to remain in operation. In other words the Magistrate on the request of the petitioners themselves has ordered by necessary implication that their bail should stand cancelled after 29th July 1975 ( 5 ) IN this connection Shri Raval contended that even if it is believed that when the learned Magistrate allowed the petitioners to remain on bail only upto 29th July 1975 that order amounted to the order of cancellation of bail as contemplated under sub-sec. (5) of sec. 437 of the Code the learned Magistrate had no such power of cancellation once the petitioners were enlarged on bail under sec. 167 of the Code. This argument is not available to Shri Raval because in Avery case wherein a person is enlarged on bail under sub-sec. (2) of sec. 167 the said order should be deemed to be an order under the provisions of Chapter XXXIII for the purpose of that Chapter. This is in terms provided by the proviso which is attached to sub-sec. (2) to sec. 167 of the Code. Sec. 437 and other sections are placed by the Legislature in the scheme of the Act under Chapter XXXIII. This is in terms provided by the proviso which is attached to sub-sec. (2) to sec. 167 of the Code. Sec. 437 and other sections are placed by the Legislature in the scheme of the Act under Chapter XXXIII. It therefore follows that even in cases where an order of release of accused on bail is passed under sub-sec. (2) of sec. 167 the provisions of Chapter XXXIII would govern the facts of the case and order of cancellation of bail can be passed by the court concerned under sub-sec. (5) of sec. 437 which finds its place in chapter XXXIII. ( 6 ) SHRI Raval next contended in this connection that even if it is believed that cancellation of the bail order obtained under sec. 167 (2) of the Code can be passed under sub-sec. (5) of sec. 437 the Magistrate could not have cancelled the bail on the mere ground that the accused was committed to the court of Sessions. This contention totally over looks the provisions contained in sec. 209 of the Code which is in the following terms: 209 Commitment of case to court of Sessions when offence is triable exclusively by it: when in a case instituted on a police report or otherwise the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the court of Session he shall (a) commit the case to the court of Sessions; (b) subject to the provisions of this Code relating to bail remand the accused to custody during and until the conclusion of the trial; send to that court the record of the case and the documents and articles if any which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the court of Sessions. These provisions show that when a case is instituted on a police report or otherwise and when the accused person either appears himself or is brought to the Magistrate and if it appears to the Magistrate that the offence concerned is triable exclusively by court of Sessions then the Magistrate is bound to commit the case to the court of Sessions and to remand the accused to custody during and until the conclusion of the trial in the court of Sessions. It is therefore apparent that in cases where the concerned offence is triable exclusively by the court of Sessions the committing Magistrate is bound to remand the accused to custody during and until the conclusion of the trial. This provision of remanding the accused who is committed to stand his trial is mandatory But sec. 209 of the Code makes this provision subject to the provisions of the Code relating to bail. This subjection shows that inspite of the fact that on order of commitment the Magistrate is bound to remand the accused to the custody during and until conclusion of the trial in the court of the Sessions the provisions relating to bail as contained in Chapter XXXIII of the Code can be invoked. Now if a reference is made to Chapter XXXIII it will be found that secs. 436 to 450 are the provisions relating to bail. Sec. 436 is with regard to non-bailable offences. For the purpose of this petition were not concerned with that section But sec. 437 says that 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 the charge of a police station or appears or is brought before a court other than the High Court or court of Sessions he my 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. Thus this sec. 427 makes it clear that if a non-bailable offence is of such a type that it is punished either with death or with imprisonment for life then only the High Court or the court of Sessions can release the accused on bail. Under these circumstances the court of the First Class Magistrate acting as the committing court cannot release the accused on bail in cases of offences which are punished with death or transportation for life. It therefore follows that when a person who is accused of such offences and when such an accused is committed to stand his trial before the court of Sessions under sec. 209 of the Code the Magistrate has got to remand such an accused to custody during and until the conclusion of the trial before the court of Sessions. It therefore follows that when a person who is accused of such offences and when such an accused is committed to stand his trial before the court of Sessions under sec. 209 of the Code the Magistrate has got to remand such an accused to custody during and until the conclusion of the trial before the court of Sessions. In such cases if accused wants to be enlarged on bail his remedy is to approach the court of Sessions or the High Court as the case may be for obtaining the bail. ( 7 ) MOREOVER powers of cancellation of bail which are contemplated by sub-sec. (5) of sec. 437 are not hedged by any statutory limitations because under that sub-section bail can be cancelled whenever the court considers it necessary so to do. Therefore the Magistrate acting under sec. 209 of the Code can cancel the bail order which is passed under sec. 167 (2) of the Code with a view to comply with the provisions of taking the accused into custody on orders of committal of the case to the court of Sessions. The learned committing Magistrate in this case has done exactly that and therefore the contention of the petitioners that they are automatically continued on bail once the order under sec. 167 (2) of the Code is passed must necessarily be rejected. ( 8 ) SO far as the decision given by Division Bench of this court in Umedsings case is concerned no question regarding the effect of sec. 209 of the Code arose to be considered in that case and therefore the observations of the court in that case that an order of bail passed under sec. 167 (2) of the Code operates even after the charge-sheet is filed are confined to the facts of that case only. In other words these observations mean that whenever an accused person is released on bail under subsec. (2) of sec. 167 of the Code that bail order operates even after the charge sheet is filed till the case is committed to Sessions or till that order is cancelled under sec 437 (5) of the Code. This decision says nothing about the impact of the provisions contained in sec 209 of the Code. It is apparent that while considering sec. 167 of the Code that bail order operates even after the charge sheet is filed till the case is committed to Sessions or till that order is cancelled under sec 437 (5) of the Code. This decision says nothing about the impact of the provisions contained in sec 209 of the Code. It is apparent that while considering sec. 167 (2) of the Code all the provisions relating to bail contained in Chapter XXXIII as well as the commital provisions contemplated by sec. 209 of the Code should be taken into account. Under these circumstances the decision given by this court in Umedsinhs case is not helpful to the petitioners so far as the facts of this case are concerned. ( 9 ) DURING the course of the argument a question was raised as to what would happen in a ease where the accused is released on bail by the High Court or the Court of Sessions under sec. 439 of the Code when this accused is committed to stand his trait before the court of Sessions under sec 209 of the Code This question strictly speaking does not arise to be considered in the present case because the petitioners have not been enlarged on bail by the High Court or the court of Sessions. Therefore I do not propose to touch this question ( 10 ) THE view which I am taking gets support from the decision given by Punjab and Haryana High Court in KAPOOR SINGH NIDHAN SINGH and ORS V. STATE OF HARYANA 1975 CRIMINAL LAW JOURNAL 1007. Therefore I do not propose to touch this question ( 10 ) THE view which I am taking gets support from the decision given by Punjab and Haryana High Court in KAPOOR SINGH NIDHAN SINGH and ORS V. STATE OF HARYANA 1975 CRIMINAL LAW JOURNAL 1007. Therein a contention was raised that if an accused person is released on bail under sec 167 (2) of the new Code there is no jurisdiction in the court of the Magistrate to cancel the bail under sub-sec (5) of sec 437 his contention was repelled by the court by observing that under the provisions contained in sec 209 of the new Code the Magistrate while committing the accused to the court of Sessions has no option but to remand the accused custody during and until the conclusion of the that After making these observations the said court has further observed that the collective reading of sec 209 (b) and sec 437 (5) would show that the Magistrate has jurisdiction to cancel the bail of the accused person who may have been allowed bail by him in a case of non-bailable offence under the provisions of sec 167 and remand to custody during g and until the conclusion of the trial who committing the case against him to the court of Sessions provided he considers it necessary to do Thus this decision also provides an answer to the contentions raised by Shri Raval on behalf of the petitioners in this case ( 11 ) IN the result I hold that the petitioners cannot claim to continue on bail alter the case is committed to the court of Sessions simply because they have been enlarged at one stage on bail under sub-sec (2) of sec 167 of the Code .