Dashrath v. State of M. P. — 1976 DIGILAW 119 (MP)

ORDER K.K. DUBE, J. 1. The applicants seek to challenge the order canceling their bail by the Magistrate. 2. The facts briefly stated leading to this application are these:– The applicants were arrested by the police pending investigation of offences punishable under section 394, 397 and 363 of the Indian Penal Code. The challan could not be filed within a period of sixty days of their arrest and the Sessions Judge granted bail under the proviso to section 167(2) of the Code of Criminal Procedure. Later, the charge-sheets were filed alleging commission of offences under sections 394, 397 and 363 of the Indian Penal Code. The learned Magistrate committed the case for trial to the Court of Session as, in his opinion, the evidence taken by the investigating agency disclosed prima facie that the applicants have committed offences which were punishable by life imprisonment and were exclusively triable by the Court of Session. He also cancelled the bail granted earlier. The applicants then moved the Court or Sessions, Rewa but without any success. Hence this application. 3. It is contended that when under section 167(2) bails was granted, it would be deemed to be under Chapter XXXIII of the Code of Criminal Procedure and all provisions relating to bail would be applicable. Therefore, when the learned Magistrate cancelled the bail it could be only under sub-section (5) of section 437. The order then was attacked on two grounds. First, the cancellation was not on any ground of misuse of the liberty granted and secondly, since the bail was granted by the Sessions Judge, it could not be cancelled by the Magistrate. It was contended that bail under section 167(2) was not such as enured only till the date of filing of the challan and therefore, it was not competent for the Magistrate to have cancelled the order except as otherwise provided by sub-section (5) of section 437. The learned counsel relied on the observations in Nataber Perdia & others vs. State of Orissa, AIR 1975 SC 1465 , Ram Murti & another vs. State, 1976 Cri. L.J. 211, Premrai & another vs. State of Rajasthan, 1976 Cri. L.J. 455 and Seoti & others vs. Rex, AIR 1948 All 366. 4. The learned counsel relied on the observations in Nataber Perdia & others vs. State of Orissa, AIR 1975 SC 1465 , Ram Murti & another vs. State, 1976 Cri. L.J. 211, Premrai & another vs. State of Rajasthan, 1976 Cri. L.J. 455 and Seoti & others vs. Rex, AIR 1948 All 366. 4. The effect of proviso to sub-section (2) of section 167 Code of Criminal Procedure would be that the Magistrate would be required to release an accused on bail if he in prepased to and does furnish bail when sixty days have eapsed after the arrest of the accused and the challan could not be filed. 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. It would undoubtedly appear from the language of the section that all provisions of bail contained in Chapter XXXIII have then to be fully applied. 5. Their Lordships of the Supreme Court in Nataber Perdia's case (supra) dealing with the powers of the Magistrate to remand under the Code of Criminal procedure observed that the intention of the legislature was to grant no discretion to the Court and to make it obligatory for it to release the accused on bail if after a period of sixty days after his arrest, no challan was filed, even though the investigation had not completed. It was observed as under:– "Of course, it has been provided in proviso (a) that the accused released on bail under section 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 occurring in Chapter XXXIII." 6. 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 occurring in Chapter XXXIII." 6. Though a doubt may exist that the bail granted under proviso to section 167(2) was for a period till the challan was filed, it is clear that such impressions were un-warranted as there is nothing in the language of section 167 that restricted the bail to last upto the time the challan was filed, The observations of the Supreme Court make it further clear that the cancellation of the bail has to be in accordance with the provisions of sub-section (5) of section 437 occurring in Chapter XXXIII of the Code of Criminal Procedure. The above observations were also brought in aid by the learned counsel for the applicants to support the contention that the Magistrate could only cancel the bail under sub-section (5) of section 437 and no other. 7. This, therefore, brings me to the question as to the powers of the Magistrate to cancel bail under section 209 of the Code or Criminal Procedure. Section 209 deals with commitment of case to Court of Session when offence is triable exclusively by it. Section 209 (a) and (b) reads as under:– "209. 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 Session; (b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial." The section empowers the Magistrate to remand the accused to custody during and until the conclusion of the trial. This power is to be exercised subject to the provisions of the Code relating to bail. This power has been construed variously by different High Courts. The Allahabad High Court and the Rajasthan High Court have taken the view that the Magistrate would not be competent to cancel the bail. It could only be canceled by the Court of Session or the High Court in accordance with sub-section (5) of section 437 or the Code of Criminal Procedure. The Allahabad High Court and the Rajasthan High Court have taken the view that the Magistrate would not be competent to cancel the bail. It could only be canceled by the Court of Session or the High Court in accordance with sub-section (5) of section 437 or the Code of Criminal Procedure. Since the earlier order granting bail under section 167 was not passed by the Magistrate it would not be competent for him now, exercising powers under section 209, to cancel the same. In Seoti & others vs. Rex, AIR 1948 All 366, the full Bench of Allahabad High Court dealing with the powers of the committing Magistrate under the old Code held that the committing Magistrate has no power to cancel the bail granted by the Court of Session or the High Court. It was stated that section 220 of the old Code gave power to the Magistrate to commit the accused persons by warrant to custody "until and during the trial" of a case exclusively triable by the Court of Session or the High Court. But that power was subject to the provisions of section 497. The Magistrate was thus not competent to cancel the bail. The View taken by the Allahabad High Court, therefore, is that when the section directed that the powers were to be exercised subject to the provisions of the Code relating to bail, sub-section (5) of section 437 was clearly attracted as that was the only provision relating to cancellation of bail and if it was not permissible under that section to cancel the bail, the Magistrate clearly could not do so. 8. The observations of the Supreme Court in the case of Nataber Perdia & others vs. State of Orissa (Supra) were made while dealing with the powers of remand by the Magistrate under section 309 of the new Code. It did not deal with a situation provided for under section 209. The observations of the Supreme Court were then made in connection with powers contained in section 437 of the new Code and could not legitimately be taken to mean that if it was otherwise permissible under other provisions of the Act, the Magistrate was precluded from canceling the bail. 9. The observations of the Supreme Court were then made in connection with powers contained in section 437 of the new Code and could not legitimately be taken to mean that if it was otherwise permissible under other provisions of the Act, the Magistrate was precluded from canceling the bail. 9. I may refer to a decision of Patna High Court in Sheobachan Pandey & others vs. The State, AIR 1951 Pat 82 , where after discussing the scheme under the old provisions of the Code of Criminal Procedure, their Lordships preceded to examine the powers of the Magistrate under section 220 of the old Code. Their Lordships were of the view that section 220 imperatively directed a Magistrate to commit the accused to custody but this direction was subject to the provisions of the Code of Criminal Procedure regarding the taking of bail. In the opinion of their Lordships:– "No question of any cancellation of bail arises in its direction to commit the accused to custody subject to the condition just stated. The words "subject to the provisions of the Code regarding the taking of bail" refer to section 497 of the Code. This is the only section which deals with "the taking of bail". We cannot read sub-section (5) of section 497, only within the restrictive portion of section 220 since the words used in section 220 are "the taking of bail" One ought to refer to that part of section 497 which deals with "the taking of bail", that is, sub-section (1) of that section. Under sub-section (1) when any person accused of any non-available offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable ground for believing that he has been guilty of an offence punishable with death or transportation for life and a special provision is made regarding the release of a person under the age of sixteen years or any woman or any sick or infirm person. It is clear, therefore, that when a Magistrate commits an accused for trial before a Court of Session he cannot order for the release of the accused if there appear to be reasonable grounds for believing that the accused had been guilty of an offence punishable with death or transportation for life unless special provisions regarding the age or sex or sickness apply. Where, therefore, a Magistrate is of the opinion that there are reasonable grounds for believing that an accused has been guilty of an offence punishable with death or transportation for life he is bound, when committing him under the provisions of section 220 of the Code to commit him to custody and there can be no question of cancellation of any bail previously granted to such an accused." 10. In the decision by the Patna High Court, the consideration that weighed before their Lordships was that the Magistrate was precluded from granting bail under sub-section (1) of section 497 and he cannot therefore, order the release of accused if there appeared to be reasonable grounds for believing that the accused had been guilty of an offence punishable with death or transportation for life. Therefore, when the stage of commitment by the Magistrate comes, these provisions have to be enforced not with standing the fact that the accused was released on bail by the order of a superior Court earlier. In other words, though the accused-applicants were granted bail earlier, it is not merely a question of cancellation of bail but applying the provisions of bail afresh and if it was found that bail could not be granted to the accused-applicants, they must be remanded to the custody during and until the conclusion of the trial. 11. It would appear that section 209 follows section 167 and it necessarily envisages a situation when the accused-applicants may have been granted bail. Unless the meaning as given by their Lordships of the Patna High Court is given to clause (b) of section 209, it would render the provision wholly otiose. For, if it was mere question of the cancellation of bail, the powers were ahead) provided for and there was no necessity of mentioning them under section 209. The language used in sub-section (b) of section 209 has to be given its full force and by doing so, it would also accord with the spirit and reason of the scheme. For, if it was mere question of the cancellation of bail, the powers were ahead) provided for and there was no necessity of mentioning them under section 209. The language used in sub-section (b) of section 209 has to be given its full force and by doing so, it would also accord with the spirit and reason of the scheme. When earlier the bail was granted under proviso to section 167(2) it was intended that the accused be not kept in custody for more than sixty days after his arrest even though the investigation had not been completed. However, after the Magistrate had come to conclusion under section 209 that the offence was exclusively triable by a Court of Session, it is reasonable to think that the accused was intended to be taken into custody as now the material collected by the investigating agency disclosed that the accused applicants have committed a henious offence. 12. Again, the words "subject to the provision of the Code relating to bail" would mean that the Magistrate could exercise powers subject to such exceptions as were provided under the Chapter relating to bail. That is to say he was not precluded from considering the case of an accused who was under the age of 16 years or any sick or infirm person or in case of a woman accused as provided under the proviso to sub-section (1) of section 437. I would, therefore, respectfully disagree with the Allahabad view and am of the opinion that the Magistrate was required to take the accused in custody despite the fact that they had been granted bail earlier by the order of a superior Court under section 167 or any other provision. This would be giving effect to clause (b) section 209 and it was not a question of cancellation of bail. 13. In the view I have taken, the orders passed by the Sessions Judge at also that of the Magistrate were clearly justified. I. therefore, dismiss this revision on merits, the applicant have no case for bail.