SUKAR NARAYAN BAKHIA v. RAJNIKANT R. SHAH — 1981 DIGILAW 150 (GUJ)

V. V. BEDARKAR, J. ( 1 ) BOTH these petitions are filed against the order of the learned Metropolitan Magistrate 10 Court Ahmedabad in Criminal Case no. 3041 of 1975 by which the learned Magistrate was pleased to release the petitioner (original accused no. 13) Sukar Narayan Bakhia (hereinafter referred to as the concerned accused) on bail with various conditions. ( 2 ) IN Criminal Revision Application no. 432 of 1982 the conditions are attacked on the ground that they are too severe and request is made that the conditions be relaxed especially pertaining to giving of two solvent sureties of Ahmedabad City proper to the tune of Rs. 50 0 each. The second petition being Criminal Revision Application no. 433 of 1982 is filed by original complainant Mr. R. R. Shah Assistant Commissioner (Acquisition Range) Income-tax Ahmedabad making a grievance against the release of the concerned accused on bail even with the conditions attached to the bail order. ( 3 ) THE case has a chequered history. A complaint was filed by the Income-tax Department in 1974 against the concerned accused and 22 others for the offences punishable under secs. 193 199 183 and 120-B of the Indian Penal Code on the ground that they attempted to convert their black money into white money by nefarious means of cross-word puzzle. Some of the accused including the concerned accused were detained either under MISA or COFEPOSA. Quite often Some of them remained absent and the proceedings could not be started. So it is a fact that till August 1982 the case has not started at all. It is a matter of record that on various adjournments the concerned accused remained present. It is also a matter of record that sometimes when the accused remained absent request for exemption from his attendance in Court was once or twice granted. It is also a matter of record that due to his absence the Court was required to issue non-bailable warrants and even in spite of that he could not be arrested or even brought before the Court and ultimately the last non-bailable warrant which according to the record is the fifth in number was issued on 27-7-1982 and on the strength of that warrant the concerned accused was arrested on 31 and was brought before the Court. ( 4 ) AFTER the non-bailable warrant was issued on 27-7-1982 the concerned accused alongwith his wife Manekben submitted an application for bail on 28-7-1982 requesting the Court to release them on bail giving various grounds to which reference will be made at an appropriate stage because they are the grounds on which Mr. H. K. Thakore learned Advocate for the concerned accused has laid much stress to show the circumstances under which the concerned accused could not remain present. ( 5 ) IT should be noted that the wife of the concerned accused is Manekben. Both of them had applied and the learned Metropolitan Magistrate in his order dated 28-7-1982 specifically observed that so far as Manekben is concerned she is pregnant and due to deliver a child and therefore the warrant against her was ordered to be stayed till 15 on the condition that she should deposit an amount of Rs. 25 0 towards the bail amount upto 31-7-1982 and that Manekben should give an undertaking to the Court through her Advocate to remain present in Court on 15-10-1982 and if she would not remain present on that day amount will be forfeited to the State. The learned Magistrate further observed in the first order that the case was seven years old. Both the accused were absconding. The clear Gujarati words areand that-the concerned accused was a proclaimed absconder. A request was made on behalf of the prosecution to hear the application of the concerned accused on 2-8-1982 this request was granted because it was impressed before the Court that on the strength of various rulings one of which was 41 Criminal Law Journal 251 it was urged that even in bailable offence the Court is entitled to refuse bail taking into consideration the circumstances pertaining to the case. Therefore this matter pertaining to the release on bail of the concerned accused was heard afterwards i. e. on 2-8-1982 and by the order dated 3-8-1982 as stated earlier the learned Magistrate was pleased to release the concerned accused on bail. Therefore the original complainant has come against that order by way of Criminal Application no. 433 of 1982. ( 6 ) ON behalf of the complainant it is the submission of Mr. Therefore the original complainant has come against that order by way of Criminal Application no. 433 of 1982. ( 6 ) ON behalf of the complainant it is the submission of Mr. H. M. Mehta Central Government Standing Counsel that the learned Magistrate has committed an error in granting bail to the concerned accused even in spite of the fact that due to the absence of the concerned accused and some of the other accused throughout the period of seven years the case did not proceed at all. The learned Magistrate in his impugned order has observed making reference to some facts on record. Accused no. 23 Haribhai Vallabhbhai had presented himself before the Court after remaining in jail for one day and thereafter he was released on bail of Rs. 5 0 as cash security by an order dated 27-5-1982. In para 5 he has specifically observed that the concerned accused and his wife Manekben (accused no. 14) were not remaining present before the Court. On 28 application on behalf of both these accused was given to cancel the Non-bailable warrant against them. He has referred to the order passed for Manekben. ( 7 ) AFTER considering the arguments the learned Magistrate observed that there are about 22 other accused in the case. Others are on bail There is allegation of an attempt to convert black money of Rs. 48 lakhs to white money and it is stated that the concerned accused is involved for an amount of Rs. 8 lakhs. He also considered that accused Manekben is not in a postilion to appear before the Court prior to 15 In fact this seems to have been considered by the learned Magistrate to appreciate that the trial would not start till 15-9-1982. But it seems that he has committed a mistake because as per his earlier order Manekben has to appear in Court on 15-10-1982. ( 8 ) THE learned Magistrate also considered that the offences with which the accused are charged are bailable offences and the main evidence is documentary and therefore there is no possibility of any tampering with the evidence and therefore so long as the offences are not proved it is not proper to penalise the concerned accused by taking strict view. With these considerations he passed the impugned order. ( 9 ) IT is the submission of Mr. With these considerations he passed the impugned order. ( 9 ) IT is the submission of Mr. H. K. Thakore learned Advocate for the concerned accused that even after having considered the fact that the case is seven years old and after having considered the fact that the concerned accused and his wife were proclaimed absconders and were not available before the Court to proceed with the trial the learned Magistrate extended the period of execution of non-bailable warrant against Manekben and then after due consideration granted bail to the concerned accused and therefore now there are no special and compelling reasons to cancel the order. ( 10 ) COURTS have quite often observed in case of granting or refusing bail that the main purpose of requiring an assurance in the form of bail and surety from the accused is to see that he remains available for the trial. Under various circumstances which have not the factual magnitude as in the instant case; Courts have always observed that if there is possibility of accused being available for the trial and also there is no possibility of his jumping out the bail then unless there are special compelling circumstances the Courts should not refuse bail. These precedents clearly show that the first duty of the Court in granting or refusing bail would be to see whether there is possibility of the accused being available for trial in a smooth way and also whether there is any possibility of the accused jumping out the bail or not remaining present in the Court even in spite of his having given bail and surety. It is therefore necessary in the instant case to consider contentions by keeping in mind the above referred to principles. Alongwith that it cannot be ignored that this is a bailable offences. Every person accused of a bailable offence has a right to be released on bail and it is the duty of the Police Officers as well as the Court to release the person accused of a bailable offence on bail and not to detain him This requirement so far as the present case is concerned was completely fulfilled by the Court when after the complaint was Sled on 27-3-1974 the Court of the Metropolitan Magistrate had issued bailable warrant for Rs. 1 500 the concerned accused directing the Police at Daman to take surety bond from him for an amount of Rs. 1 500 with an undertaking that he would remain present before the Metropolitan Magistrate 10 Court Ahmedabad on 15-4-1974 etc. So apparently bail was granted because this was a bailable offence and the concerned accused had to remain present in Court on strength of the undertaking given. Thereafter because the concerned accused did not remain present warrants were issued. ( 11 ) EXTRACT from the Roznama is produced before me that on 19 as the concerned accused was absent non-bailable warrant was issued. Thereafter on four adjournments the concerned accused remained present. Then he was absent on two occasions. Then he was present on two occasions and on three occasions either the Magistrate was on leave or the matter was adjourned. Thereafter on nine occasions the concerned accused was absent and therefore on 17-3-1980 non-bailable warrant was issued against him as well as other accused who were absent. Even thereafter on five occasions the concerned accused was absent on 16-9-1980 because the concerned accused was absent his Advocate Mr. Gohel assured the Court to produce the absentee-accused on 30-9-1980. On 30 the concerned accused was absent and so it was directed that a non-bailable warrant be issued which was issued on 9-10-1980 So this was a third time when the non-bailable warrant was issued. Even then on 27-10-1980 the concerned accused was absent. Thereafter on 5-11-1980 non-bailable warrant against the concerned accused was delivered to the Collector Daman. Thereafter also the concerned accused remained absent and the non-bailable warrant was handed-over to the Collector Daman and was also affixed on the residence of the concerned accused. On 5-11-1981 non-bailable warrant was also delivered to S. D. P. O. Daman but thereafter also either it could not be served or to put it in the terms of Mr. Thakore for the concerned accused. though the concerned accused was present at Daman it was not served and in terms of Mr. Mehta it could not be served and the accused successfully eluded the warrant Whatever it may be the warrant could not be served. Again on 27-7-1982 non-bailable warrant was issued by the Magistrate. This was the fifty non-bailable warrant. As this warrant was issued on 27-7-1982 an application was immediately made before the execution of the warrant on 28-7-1982. Mehta it could not be served and the accused successfully eluded the warrant Whatever it may be the warrant could not be served. Again on 27-7-1982 non-bailable warrant was issued by the Magistrate. This was the fifty non-bailable warrant. As this warrant was issued on 27-7-1982 an application was immediately made before the execution of the warrant on 28-7-1982. This long chain of circumstances is relied on by Mr. Mehta to show the peculiar case wherein the Court should have exercised powers of refusing or not granting bail even in bailable offence. ( 12 ) AS against this it is the submission of Mr. Thakore that on all occasions it cannot be said that the concerned accused was in a position to attend the Court and he did not attend. It is his submission that in fact the concerned accused could not remain present in Court due to circumstances beyond his control as mentioned in the application to the Magistrate. It is his submission that in the first week of November 1980 order of detention under the COFEPOSA was issued by Government of Gujarat and therefore the concerned accused had to file a writ petition in the Calcutta High Court challenging the said order and by an order of the Calcutta High Court he was directed to stay at his given address at Calcutta and this order was passed on 8-11-1980 and 11 and therefore he could not go out of Calcutta. Thereafter it is the case that the concerned accused was arrested by the Government of Goa Daman and Div under the COFEPOSA on 8-4-1982 and was detained at Aguada (Goa) Central Jail. Thereafter the Advisory Board constituted under the COFEPOSA by its order dated 30-5-1982 directed that the concerned accused should be released from Aguada (Goa) Central Jail. But as the concerned accused was to be detained under the Detention order passed by Government of Gujarat the wife of the concerned accused moved the J. Cs. Court of Goa Daman and Div at Panaji under Article 226 of the Constitution and obtained a stay order. However the Judicial Commissioner of Goa Daman and Div directed the concerned accused not to leave Daman and accused no. 14 (wife of the concerned accused) was directed to produce the concerned accused in the Court of Judicial Commissioner at Panaji on 31-7-1982. It is also the contention of Mr. However the Judicial Commissioner of Goa Daman and Div directed the concerned accused not to leave Daman and accused no. 14 (wife of the concerned accused) was directed to produce the concerned accused in the Court of Judicial Commissioner at Panaji on 31-7-1982. It is also the contention of Mr. thakore that the concerned accused was directed to report to the Dy. S. P Daman every Monday from the date of the order till the date of hearing his order was passed on 14-7-1982. It is therefore submitted that under these circumstances the concerned accused could not remain present in Court. ( 13 ) NOW it cannot be overlooked that the concerned accused had engaged an Advocate. He could have remained to communication with his Advocate as he remained on earlier occasions as is very clear that quite often his Advocate has given applications for time for exemptions and also an undertaking to produce the concerned accused and other accused in Court. But at no time any specific averment was made except on one occasion when the Advocate for the prosecution submitted an application to adjourn the matter for two months as some of the accused were detained either under MISA or COFEPOSA. When it is the duty of the accused person to remain present in Court in order to facilitate the proper and smooth conduct of a pending criminal case it is also his duty to inform his Advocate. The concerned accused or his wife at all times had intelligence understanding and advice to file petitions pertaining to detention order passed against them in the Calcutta High Court. They had the knowledges instructions and understanding to move against the order of Government of Gujarat in Judicial Commissioners Court Goa Daman and Div at Panaji and in order to get exemption for remaining absent from the Ahmedabad Court and now it is attempted to be shown that it was a mistake that he could not very well understand the magnitude to inform about his inability to attend the Court. ( 14 ) MR. Thakore has taken specific objections to the petition filed by the complainant. First objection is that this is a revision petition. If the learned Magistrate has passed the impugned order for which he has jurisdiction and discretion this Court by exercising revisional powers should not interfere with that. In order to support his argument Mr. ( 14 ) MR. Thakore has taken specific objections to the petition filed by the complainant. First objection is that this is a revision petition. If the learned Magistrate has passed the impugned order for which he has jurisdiction and discretion this Court by exercising revisional powers should not interfere with that. In order to support his argument Mr. Thakore referred me to the decision of the Supreme Court in State of Orissa v. Nakula Sahu AIR 1979 Supreme Court 663. These were of course the powers to be exercised by the Court under the Code of Criminal Procedure 1898 (hereinafter referred to as the old Code) under sec. 439 read with sec. 435. It has been observed that although the revisional power of the High Court under sec. 439 read with sec. 435 is as wide as the power of the Court of appeal under sec. 423 of the old Code it is now well settled that normally the jurisdiction of the High Court under sec. 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant mis-carriage of justice. In spite of the wide language of sec. 435 the High Court is not expected to act under sec. 435 or sec. 439 as if it is hearing an appeal. It is further observed that where neither the trial Court nor the Sessions Court committed any error of fact or law in arriving at their conclusions and the High Court upset their concurrent findings in exercise of the revisional jurisdiction and acquitted the accused the order of acquittal passed by the High Court was set aside. It should be noted that this was a case where the question of acquittal of a person on evidence on record and appreciation of that evidence on record was concerned. It was not a case where appreciation of circumstances were available before the Court and the Court had exercised discretion in such a way that ultimately ends of justice are met. It was not a case where appreciation of circumstances were available before the Court and the Court had exercised discretion in such a way that ultimately ends of justice are met. ( 15 ) WHEN the proper occasion would arise I am going to refer to the decision in details but the Supreme Court Talab Haji Hussain v. Madhukar Purshottam Mondkar AIR 1958 Supreme Court 376 has in para 6 observed:"the primary object of criminal procedure is to ensure a fair trial of accused persons but a fair trial has naturally two objects in view; it must be fair to the accused and must also be fair to the prosecution. It is therefore necessary that when the question of considering the accused person to be released on bail arises the Court has to consider whether there would be scope for fair trial either for the accused or the prosecution If by any act the scope of fair trial is curtailed then can it be said that the High Court in revisional powers could not interfere ? In my opinion it cannot be so and if circumstances demand Court must interfere. ( 16 ) IT should be noted that there is power to the Sessions Court and the High Court under sec. 439 (2) of the Code of Criminal Procedure 1973 (hereinafter referred to as the new Code) to direct a person released on bail under Chapter XXXIII to be arrested and commit him to custody. This chapter contains sec. 436 which refers to person other than a person accused of a non-bailable offence meaning a person accused of a bailable offence. So the power under sec. 439 (2) is also invoked by the complainant by this petition. But in order to obliviate the difficulty that the concerned accused was involved in a bailable offence and then in order to further support the contention that in such a case also bail can be refused specific reliance is placed on the provisions of sec. 436 of the new Code which is to the following effect:"436 Notwithstanding anything contained in sub-sec. 436 of the new Code which is to the following effect:"436 Notwithstanding anything contained in sub-sec. (1) where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance the Court may refuse to release him on bail when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under sec. 446". Now in this sub section (2) of sec. 436 of the new Code if a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance the Court may refuse to release him on bail and if on a subsequent occasion in the same case the accused appears before the Court or is brought in custody and any such refusal would be without prejudice to the powers of the Court to call upon any person bound by such bond to pa v the penalty thereof. So this provisions is brought in help by the prosecution to show that even for a bailable offence under sec. 436 (2) of the new Code powers of the Court to refuse to release a person on bail would be there. ( 17 ) NOW it is a fact that so far as the bond about the concerned accused is were it is the bond executed by him on 8 1974 assuring to attend the Court on 15-4-1975. Question therefore would be whether after he had attended the Court in pursuance of that bond whether recourse to the condition of that bond can be taken. Now in that bond over and above appearing before the Court on 15-4-1974 there is also an undertaking that he would remain present on all occasions so long as the case would be conducted in that Court or even in Sessions Court if the case is sent for trial to the Sessions Court. Therefore this is an all embracing condition and if on another occasion the concerned accused remained absent even in a bailable offence the Court can exercise its power under sec. 436 (2) of the new Code. ( 18 ) DISPUTE was raised by Mr. Therefore this is an all embracing condition and if on another occasion the concerned accused remained absent even in a bailable offence the Court can exercise its power under sec. 436 (2) of the new Code. ( 18 ) DISPUTE was raised by Mr. Thakore that this was a bond given by the concerned accused before the Daman Police and not before this Court. It should be noted that this bond was taken by the Daman Police at the order of the City Magistrate 10 Court Ahmedabad dated 27 3 The jurisdiction to release the concerned accused on bail of Rs. 1 500 emanated from the order of the City Magistrate Ahmedabad and it was a direction to the Police Officer at Daman that the concerned accused should be arrested and thereafter he should be released on bail of Rs. 1 500 with a condition to attend the Court whenever required. Therefore it cannot be said that the said bond is not binding to the accused nor that the Court could not take recourse to sec. 436 (2) to enforce the conditions of that bond. ( 19 ) THEN an argument was advanced that this provision is in the new Code which came in force on and from 1-4-1974 while the case is filed prior to 1974 and especially the order of bailable warrant was issued by the learned Magistrate on 27-3-1974 and therefore the provisions of sec. 436 (2) of the new Code cannot be brought into operation. Now it should be noted that the concerned accused executed a bond on 11-4-1974 when the new Code came into force. Mr. Thakore has relied on the provision of sec 484 of the new Code. This section refers to repeal of the old Code. However in sub-sec. (2) (a) thereof it has been provided: (2) Notwithstanding such repeal (A) if immediately before the dale on which this Code comes into force there is any appeal application trial inquiry or investigation pending then such appeal application trial inquiry or investigation shall be disposed of continued held or made as the case may be in accordance with the provisions of the Code of Criminal Procedure 1898 (V of 1898) as in force immediately before such commencement (hereinafter referred to as the Old Code) as if this Code had not come into force. PROVIDED that every inquiry under Chapter XVIII of the old Code which is pending at the commencement of this Code shall be dealt with and disposed of in accordance with the provisions of this Code. It is therefore the submission of Mr. Thakore that as the complaint was filed before the date on which the new Code came into force then any appeal application trial inquiry or investigation pending shall be disposed of according to the old Code. ( 20 ) NOW it is not the case that there was any application pending pertaining to the release or non-release of the concerned accused when the new Code came into force. But in order to show that there is a vested right Mr. Thakore relied on the Full Bench decision of this Court in Hiralal Nansa Bhavsar v. State of Gujarat 15 Gujarat Law Reporter 725 wherein the question before this Court was as to what procedure should be adopted for an appeal and it was considered that the right of appeal is a substantive right and not a procedural one. Right of appeal is a vested right and the said right vests from the day of commencement of the proceeding as an appeal is considered as a continuation of the proceeding. This Court further considered that the new Code came into force from 1-4-1974 repealing the old Code and then considered the provisions of sec. 484 (2) of the new Code and then considered that if right to appeal was there in the old code and if the proceedings were already pending meaning thereby the initial proceedings also then the appeal would be governed by the new Code and the person would have a substantive right of appeal to continue the proceedings upto the final Court of appeal. It is therefore the submission of Mr. Thakore that when the complaint was filed the old Code was applicable and for all the aspects pertaining to the case at each stage provisions of the old Code would be applicable and not the new Code. . ( 21 ) MR. H. M. Mehta rightly drew my attention to para 5 of the aforesaid Full Bench decision on page 734 wherein it has been observed:". . . A party to the prosecution has no vested right in procedural provisions. . ( 21 ) MR. H. M. Mehta rightly drew my attention to para 5 of the aforesaid Full Bench decision on page 734 wherein it has been observed:". . . A party to the prosecution has no vested right in procedural provisions. The intention of Parliament is that out of the proceedings mentioned in the section (section 484 of the Old Code) those proceedings in which the party has no vested right are only to be continued or held or made according to the provision of the Old Code as if the new Code has not been in force". This Court specifically observed that so far as investigation is concerned though that word is mentioned in sec. 484 (2) investigation is a procedural matter. No accused person has any vested right and therefore the accused acquired no vested right till the Court takes cognizance of prosecution against him. But there are some vested rights from among those enumerated in sec. 484 (2) of the new Code and they are disposed of finally in accordance with the provisions of the old Code. ( 22 ) THEREFORE it cannot be said that the provisions of the old Code will be applicable to all the aspects which are not even enumerated in sec. 484 (2) (a) of the new Code. It is of course true that right to obtain a bail is certainly a substantive right. There is no change so far as the old and the new Codes are concerned so far as right of accused to obtain bail is concerned. There is no change in the enumerated as bailable or non-bailable offences so far as the old Code and the new Code are concerned particularly in relation to the offences with which we are concerned. Therefore that substantive right of the accused to claim that the offences for which he is tried are bailable has remained. Can it be said that this aspect should be further carried on to the extent of permitting the accused to remain absent depriving the Court of its power to force his attendance by refusing the bail? therefore it cannot be said that if under the old Code a person is released on hail under a bailable offence and he does not remain present at the time when the provisions of sec. therefore it cannot be said that if under the old Code a person is released on hail under a bailable offence and he does not remain present at the time when the provisions of sec. 436 (2) of the new Code are available that jurisdiction cannot be invoked and that the accused would be permitted to claim that be has vested right to remain absent even inspite of his having given an undertaking because be has given an undertaking in a bailable offence when the new Code was not available. Now even though I have touched this point because it was argued at length according to the accepted principles under the old Code the High Court is not devoid of any jurisdiction to deny bail to a person if he is not facilitating proper conduct of the case before the Court. ( 23 ) AT this stage it would be worthwhile to refer to the provisions of sec. 498 of the old Code. It is as follows:"498 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; and the High Court or Court of Sessions may in any case whether there be an appeal on conviction or not direct that any person be admitted to bail or that the bail required by a police officer or Magistrate be reduced. (2) A High Court or Court of Session may cause any person who has been admitted to bail under sub-sec. (1) to be arrested and may commit him to custody". Sub-sec. (2) therefore authorises the Session Court or the High Court to arrest a person admitted to bail. It is practically like sec. 439 (2) of the new Code referred to by me earlier. Before the Bombay High Court in Madhukar Purshottam Mondkars case AIR 1958 Bombay 406 so far as the power under sec. 498 (2) of the old Code for ordering arrest of a person accused of a bailable offence was doubted in para 3 of the judgment by observing:. . . . THERE is no provision corresponding to sub-sec. (5) of sec. 497 or sub sec. (2) of sec. 498 the important fact to remember is that. 498 (2) of the old Code for ordering arrest of a person accused of a bailable offence was doubted in para 3 of the judgment by observing:. . . . THERE is no provision corresponding to sub-sec. (5) of sec. 497 or sub sec. (2) of sec. 498 the important fact to remember is that. nor is there any provision in the Code which prohibits the High Court from re-arresting a person who has been released on bail in a case where he is charged with a bailable offence. This doubt was dispelled by the Supreme Court in an appeal against that decision in Talab Haji Hussains case (Supra) ( AIR 1958 SC 376 ). In para 8 the Supreme Court has observed;"in this connection it would be relevant to consider the effect of the provisions of sec. 498. Under sec. 498 (1) the High Court or the Court of sessions may even in the case of persons accused of bailable offence admit such accused persons to bail or reduce the amount of bail demanded by the prescribed authorities under sec. 496. Shri Purshottam no doubt attempted to argue that the operative part of the provisions of sec. 498 (1) does not apply to persons accused of bailable offence; but in our opinion there can be no doubt that this sub-section deals with cases of persons accused of bailable as well as non-bailable offences If a person accused of a bailable offence is admitted to has by an order passed by the High court of the Court of Sessions the provisions of sub-sec. (2) become applicable to his case; and under these provisions the High Court or the Court of Sessions is expressly empowered to cancel the bail granted by it and to arrest the accused and commit him to custody". This sub-section as we have already pointed out. has been added in 1955 and now there is no doubt that the legislature has conferred upon the High Court or the Court of Sessions power to cancel bail in regard to cases of persons accused of bailable offences where such persons have been admitted to bail by the High Court or the Court of Sessions under sec. 498 (1 ). The result is that with regard to a class of cases of bailable offences falling under sec. 498 (1 ). The result is that with regard to a class of cases of bailable offences falling under sec. 498 (1) even after the accused persons are admitted to bail express power has been conferred on the High Court or the court of sessions to arrest them and commit them to custody. So even under the old Code power was there to practically cancel the bail under sec. 498 (2) of the old Code. of course that section in the old Code does not refer to chapter as in sec. 439 (2) of the new Code but a person admitted to bail under sub-sec. (1) of sec. 498. There is of course scope to consider whether sec. 498 (2) refers to all cases where an accused is admitted on bail or only those cases where the bail is granted by the Sessions Court or the High Court. Though of course accused Talab was released on bail by the Chief presidency Magistrate and the High Court cancelled the order under sec. 561a of the old Code the Supreme Court considered the powers also under sec. 498 (2) of the old Code and still the power to cancel a bail in a bailable offence was considered. Therefore I am considering other aspects also. ( 24 ) THE Bombay High Court in Talab Haji Hussainis case. AIR 1958 Bombay 406 (Supra) against which an appeal was filed to the Supreme Court which is in AIR 1958 Supreme Court 376 referred to earlier considered that having provided in sec. 496 that a person accused of a bailable offence shall be released on bail the legislature has not provided for nor has it contemplated a situation which has been just described meaning thereby the legislature while enacting the enactment cannot envisage all the eventualities and laws might have some lacuna and therefore in order to meet these unforeseen cases and situations and to make good the lacuna if they exist that a Code of law reserves to a Court inherent powers. The Bombay High Court therefore considered that the Legislature could not think of a situation wherein a person in a bailable offence would be in a position to impair or impead the smooth conduct of a case if he is allowed to remain on bail. The Bombay High Court therefore considered that the Legislature could not think of a situation wherein a person in a bailable offence would be in a position to impair or impead the smooth conduct of a case if he is allowed to remain on bail. The Bombay High Court considered that if there had been any express provisions in the Code prohibiting the Court from arresting any person who has been released on bail under sec. 496 then however reluctantly the Court would have to carry out the mandate of the Legislature. But because there was no such mandate the Court considered that in a given case the High Court can pass such an order. It was of course stated as a caution that these powers of the High Court are extremely restricted and circumscribed powers. They are not to be availed of as arising from ordinary jurisdiction conferred upon the High Court. It is only in extraordinary and exceptional cases where the High Court is fully satisfied that the Court which is trying an accused person charged with a bailable offence will not be in a position to function as a Court in the sense that it cannot get a proper evidence before it and it cannot come to a proper conclusion whether the offence has been committed that it would exercise the inherent jurisdiction conferred upon it by sec. 561-A. This matter was further carried to the Supreme Court which is reported in AIR 1958 Supreme Court 376 (Supra) and the decision of the Bombay High Court was confirmed and the appeal filed by Talab Haji Hussain was dismissed to which I have already made reference. ( 25 ) MR. H. K Thakore however wanted to submit a distinguishing feature in the case before the Bombay High Court and the Supreme Court. There were two possibilities. One was that the accused before the High Court and the Supreme Court was attempting to tamper with the evidence and secondly there was likelihood of his jumping out the bail and going away abroad. But in both the cases the main consideration before the Court was the conduct of the trial in a fair way. It may be impeded by winning over the witnesses or impeded by the accused remaining constantly absent thus depriving the Court of the trial at all. But in both the cases the main consideration before the Court was the conduct of the trial in a fair way. It may be impeded by winning over the witnesses or impeded by the accused remaining constantly absent thus depriving the Court of the trial at all. The Supreme Court in para 6 to which I have made some reference has observed:". . . . . 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 Court are sought to be invoked by the prosecution in cases where it is alleged that the 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 consequence by taking advantage of the fact that he has been released on bail and by absconding to another country". So because the question of fair trial was considered also on the ground of availability of the accused for the trial. Mr. Thakore wanted to make a distinction that this specifically refers to the accused absconding to another country. It is the submission that there is no case of the prosecution that the concerned accused is to go away abroad. It cannot be gainsaid that the concerned accused who was released on bail and against whom non-bailable warrants were issued initially jumped the bail by not remaining present and also could not be available for trial. Whatever is considered by the Supreme Court in para 6 of Talab Haji Hussains case (Supra) cannot be said to be an exhaustive list but it is merely an illustrative aspect. Whatever is considered by the Supreme Court in para 6 of Talab Haji Hussains case (Supra) cannot be said to be an exhaustive list but it is merely an illustrative aspect. If on the facts before the Court it can be found that in a given case the accused would not be available for trial if he is allowed to be released on bail even on non-bailable offence then in view of the principles laid down by the Bombay High Court and the Supreme Court this Court has inherent powers. ( 26 ) IT is true that this petition is a revision petition. But under the subject clause request is also made to invoke the powers of this Court under sec. 482 of the new Code which is equivalent to sec. 561 of the old Code and Mr. Mehta submitted that he is invoking those provisions. Now in view of the decisions of the Bombay High Court and the Supreme Court in Talab Hussains case (supra) if this is considered then it can well be said that this is a case where the facts and circumstances of the situation demand that the Court should exercise its jurisdiction under inherent powers. ( 27 ) NOW having considered the circumstances of the case it clearly transpires from the petition filed by the complainant here before me on sworn affidavit that on various occasions the concerned accused did not remain present. There are 22 other accused also. On some occasion some accused remained present and on another occasion they remained absent and thus the conduct of the trial is delayed. It is apparent that the prosecution case as argued by Mr. Mehta is that the concerned accused is practically the leader of all the other accused. Experience in Court shows that if all the accused are on bail then proceedings are delayed by absence of one or the other accused and the Court cannot proceed with the trial in absence of any of the accused if exemption is not requested and granted. But if one of them is in jail especially a person like the concerned accused then those who are concerned with him will see that the trial is taken up speadily and will remain present and by that the progress of the case will not be impaired this is one of the considerations which has to weigh with the Court. But if one of them is in jail especially a person like the concerned accused then those who are concerned with him will see that the trial is taken up speadily and will remain present and by that the progress of the case will not be impaired this is one of the considerations which has to weigh with the Court. ( 28 ) IT was also submitted that as stated by the concerned accused he was detained in Aguada Jail. The Customs authorities from Gujarat were waiting to receive him or rather to put it correctly arrest him. Instead of coming by the front door it is the allegation that he escaped by the back door. It was strenuously argued by Mr. Thakore that it was at the sweet-will of the concerned accused either to go from the front door or the back door and when he was released he was entitled to go from any door which was available to himnow that availability may be to his own knowledge or some convenience but the fact remains that he could not be available at the front door as stated by the complainant on oath. The circumstances narrated above clearly go to show that from 1974 the matter has not proceeded at all. Therefore the concerned accused does not deserve to be released on bail at least in order that the proceedings which are pending since 1975 can go on smoothly and expeditiously. ( 29 ) I would refer to one argument advanced by Mr. Thakore with a view to persuade me to consider the case of the concerned accused on the lines of other accused. It is his submission that the proclamation about the absconding accused was published not only for the concerned accused but was published also for accused no. 23 Haribhai Vallabhbhai and accused no. 14 Manekben. Both of them ale released on bail. I have already considered the order of the learned Magistrate to see as to on what grounds Manekben was released and that has because she was pregnant Haribhai Vallabhbhai was released on bail of Rs. 5 0 on 27-5-1982. It should be noted that as considered by the learned Magistrate in Para 4 of his impugned order Haribhai appealed before the Court of his own accord meaning thereby without issuance of any non-bailable warrant against him. He also remained in jail for one day. 5 0 on 27-5-1982. It should be noted that as considered by the learned Magistrate in Para 4 of his impugned order Haribhai appealed before the Court of his own accord meaning thereby without issuance of any non-bailable warrant against him. He also remained in jail for one day. So it was not a case of blatant unavailability before the Court as it apparent in the case of the concerned accused. Therefore that case cannot be put on similar conditions. ( 30 ) IT was submitted to me by Mr. Thakore that there are in all 28 accused. the record is voluminous and even during the committal proceedings long time will be taken by the Court and therefore the accused would remain as an under-trial prisoner for a long time and therefore it would not be in the interest of justice even to deny him bail as the trial would not start earlier than 15-10-1982 when Manekben is required to attend the Court. I quite appreciate his anxiety. But it can be said that the trial Court should not insist on presence of Manekben and should permit her exemption in peculiar circumstances of her case and the learned Magistrate should proceed with the matters as expeditiously as possible and see that within a period of two months the committal proceedings are over Thereafter or even before that by bringing out special circumstances which would be available after the trial starts concerned accused can move the Court to be released on bail and that will be considered on merits of that matter. This consideration will certainly depend on whether the delay in hearing is due to the prosecution or the defence. The prime consideration in this order is for a proper and unhampered trial of an old case which is delayed due to absence of the accused and so the accused should also co-operate. ( 31 ) IN the result therefore Criminal Revision Application no. 433 of 1982 filed by original complainant is allowed and the order of the learned Magistrate releasing the concerned accused (i. e. opponent no. 1 ) is hereby cancelled. Rule is made absolute. ( 32 ) SO far as Criminal Revision Application no. 432 of 1982 is concerned as the bail order is cancelled there is no question of varying the conditions imposed by the learned Magistrate. Therefore this petition is dismissed and rule is discharged. 1 ) is hereby cancelled. Rule is made absolute. ( 32 ) SO far as Criminal Revision Application no. 432 of 1982 is concerned as the bail order is cancelled there is no question of varying the conditions imposed by the learned Magistrate. Therefore this petition is dismissed and rule is discharged. Cr. R. 432 dismissed: Cr. P. 433 allowed .