TALAB HAJI HUSSAIN v. MADHUKAR PURSHOTTAM MONDKAR AND ANOTHER
Citation: [1958] 1 S.C.R. 1226; 1958 INSC 6
Court: Supreme Court of India
Bench: NATWARLAL HARILAL BHAGWATI , J.L. KAPUR, P.B. GAJENDRAGADKAR
Judgment date:
Case summary
1958 INSC 6. Supreme Court of India judgment dated 1958-02-07. TALAB HAJI HUSSAIN v. MADHUKAR PURSHOTTAM MONDKAR AND ANOTHER. Read the judgment and case...
Judgment text
1226 SUPREME COURT REPOH'l'S [IDllll TALAB HAJI HUSSAIN 11. MADHUKAR PURSHOTTAM MONDKAR AND ANOTHER ible right; and despite the order of tbe High Court, that right would still be available to the appellant. If that be the true position, the order passed under s. 56IA would be rendered ineffective and that itself would show that there is a conflict between the exercise of the said power and the provisions of s. 496. Thus presented, the argument no doubt h prima facie attractive; but a close examination of the provisions of s. 496 would show that there is no conflict between its provisions and the exercise of the jurisdiction under s. 561A. In dealing with this argument it is necessary to remember that, if the power under s. 561A is exercised by the High Court, the bail offered by the accused and accepted by the trial court would be cancelled and the accused would be ordered to be arrested forthwith and committed to custody. In other words, the effect of the order passed under s.
561 A, just like the effect of an order passed under s. 497 (5) a. nd s. 498 (2), would be not only that the bail is cancelled but that the accused is ordered to be arrested and committed to custody. The order committing the accused to custody is a judicial order passed by a criminal court of com-petent jurisdiction. His commitment to custody thereafter is not by reason of the fact that he is alleged to have committed a bailable offence at all; his commitment to custody is the result of a judicial order passed on the ground that he has forfeited his bail and that his subsequent conduct showed that, pending the trial, he cannot be allowed to be at large. Now, where a person is committed to custody under such an order, it would not be open to him to fall back upon his rights under s. 4%, for s. 496 would in such circumstances be inapplicable to his case.
It may be that there is no specific provision for the cancellation of the bond and the re-arrest of a person accused of a bailable offence; but that does not mean tha. t s. 496 entit-les such an accused person to be released on bail, even though it may be shown that he is guilty of conduct entirely subver-sive of a fair trial in the court. We do not read s. 496 as con-ferring on a person accused of a bailable offence such an unqualified, absolute and an indefeasible right to be released on bail. S. C. R. SUPREME COUR'i' REPORTS - 1235 In this connection, it would be relevant to consider the effect of the provisions of s. 498. Under s. 498(1), the High - Court or the Court of Sessions may, even in the case of persons accused of bailable offences, admit such . accused persons Jl'fi':i'M::tI:,; to bail or reduce the amount of bail demanded by the• pres- Gajend;,,~adbar cribed authorities under s. 496.
Shri Purushottam no doubt attempted to argue that the operative part of the provisions of s. 498(1) does not apply to persons accused of bailable offences; but in our opinion, there ca1n be no doubt that this sub-section deals with cases of persons accused of bailable as well as non-bailable offences. We have no doubt that, 1 even in regard to persons accused of bailable offences, if the amount of bail fixed under s. 496 is unreasonably: high the accused person can move the High Court or the Court of Sessions for reduction of that amount. Similarly, a person accused of a bailable offence may move the High Court or the Court of Sesslons to be released on bail and the High Court or the Court of Sessions may direct either that the amount should be reduced or that the person may be admitted to bail. If a person accused of a bailable offence is admitted to bail by an order passed by the High Court or the Court of Sessions, the provisions of sub-s.
(2) become appli- _ cable 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 cus~ody. This sub-section, as we have already pointed out, has been added in 1955 and now there is no doubt that 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 s. 498(1). The result is ·that with regard to a class of cases of badlable offences falling under s. 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.
Clearly then it cannot be said that the right of a person accused of a bailable offence to be released on bail cannot be forfeited even if his conduct subsequent to the grant of bail is found to be prejudicial to a fair trial. It would also be interesting to notice that, even before s. 498(2) was enacted. there was consensus of judicial opinion in favour of the view that, if accused persons were released on. bail under s. 498(1), their bail-bond could be cancelled and they could be ordered to be arrested and committed to custody under the provisions of s. 561A of the Code (Mirza Mohammad Ibrahim v. Emperor('), Seoli v. Rex('), Bachchu Lal v. State('), Munshi Singh v. State(') and The Crown Pro-secutor, Madras v. Krishnan(')). These deeisions would show that the exercise of inherent power to cancel baH under s. 561 A was not regarded as inconsistent with the provisions of s. 498(1) of the Code.
It is true that all these decisi1>ns referred to cases of persons charged with non,bailable offences; but it is significant that the provisions of s. 497(5) did not apply, to these cases and the appropriate orders were passed under the purported exercise of inherent power under s. 56 l A. On principle then these decisions prl>ceed on the assumption, and we think rightly, that the exercise of inherent power in that behalf was not inconsistent with the provisions of s. 498 as it then stood. It would riow be relevant to enquire whether, on principle, a distinctii>n can be made between bailable and non-bailable offences in regard to the effect l>f the prejudicial conduct of accused persons subsequent to their release on bail. As we have already observed, if a fair trial is the main ob-jective of the criminal procedure, any threat to the continuance . of fair trial must be immediately arrested and.
the smooth progress of a fair trial must be ensured; and this can be done, if necessary, by the exercise l>f inherent power. The classification of offences into bailable and non-bailable on whicli are based the different provisions as to the grant of (') A. I. I\. 1932 All. 534. (') AI. R. 1948All. 366. (') A. l. R. 1951 All 836. t') A. I. R, 1952 All. 39 (') I. L. R. 1948 Mad. 62. s. c. n.. 8Ul'Rli. :l\IE COUU'l' HJ~PORTS bail would not, in our opinion, have any material bearing in deaHng with the effect of the subsequent conduct of accused persons on the continuance of a fair trial itself.
If an accused person, by his conduct, puts the fair trial into jeopardy, it would be the primary and paramount duty of criminal courts Gajcndragadkur to ensure that the risk to the fair trial is removed and crimi- 1 nal courts are allowed to proceed with the trial smoothly and without any interruption or obstruction; and this would be equally true in cases of both bailable as well as non-bailable offences. We, therefore, feel no difficulty in holding that, if, by . his· subsequent conduct, a person accused of a bailable offence forfeits his right tJ be released on bail, that forfeiture must be made effective by invoking the inherent power of the High Court under s. 561A. Omission of legislature to make a specific provision. in that behalf is clearly due to oversight or inadvertence and cannot be regarded as deliberate. If the appellant's contention is sound, it would lead to fantastic re. -suits. The argument is that a person accused ·of a bailable offence has such an .
unquatified right to be released on bail that even. if he dues his worst to obstruct or to defeat a fair trial, his bail-bond cannot be cancelled and a, threat to a fair trial cannot be arrested or prevented. Indeed Shree Purushottam went the length of suggesting that in . such a case the impugned subsequent conduct of the accused may give rise to some other charges under the Indian Penal Code, but it cannot justify bis re-arrest. Fortunately that does not appear to be the true legal position if the relevant provisions of the Code in regard to the grant of bail are considered as a whole along with the provisions of s. S61A of the Code. It now remains to consider . the decision of the Privy Council in Lala Jairam Das de Others v. King Emperor('), be· cause Shri Purushottam has very strongly relied on some of the t>bservations made in that case.
According to that decision, ~he provisions of the Code of Criminal Procedure confer no power on High Courts to grant bail to a person who has been convicted and sentenced fo imprist>nment and to (') (1945) L. R. 72 I. A. 120, 132. whom His . Majesty in Council ha1; given special leave to appeal against his sentence and conviction. Divergent views had been expressed by the High Courts in this country on the question as to the High Courts' power to grant bail to convicted persons wht> had been given special leave to appeal to the Privy Council; these views and the scheme of the Code in regard to the grant of bail were examined by Lord Russel of Killowen who delivered the judgment of the Board in Lala Jairam Das's case('). The decision has thus no application to the facts before us; but Shri Purushottam relies on certain observations made in the judgment. It has been observed in that judgment that "their Lordships take the view that Ch. XXXIX of the Code together with s.
426 is, and was intend to contain, a complete and exhaustive statement of the powers of a High Court in India to grant bail, and excludes the exist· ence of any additit>nal inherent power in a High Court re-lating to the subject of bail". The judgment further shows that in their Lordships' opinion, like the High Court of Justice in England, High Courts in India would not have inherent . power to grant bail to a convi~ted person. It would be clell'l" from the judgment that their Lordships were not called upon to consider the question about the inherent power of the High Courts to cancel bail under s. 56 lA. That point did not obviously arise in the case before them. Even so, in dealing with the question as to whether inherent pt>wer could be exercised for granting bail to a convicted person, their Lordships did refe·r to s.
561A of the Code and they pointed out that such a power cannot be properly attributed to the High Ct>urts because it would, if exeroised, interrupt the serving of the sentence; and, besides it would, in the event of the appeal being unsuccessful, result in defeating the ends Of justice. It was also pointed out that if the bail was allowed in such a case, the exercise of the inherent power would result in an al-teration by the High Court of its judgment which is prohibit- (') (1945) L. R. 72 I. A. 120, 132. ed b. y s. 369 of the· Code. In other ,words, their Lt>rdship~ examined the provisions of s. · 561A and came to the conclusion that the power to grant. bail to a convicted person would . -n0t t\t in with the scheme of Chapter XXXIX of the C:::ode read with s. 561A: In our opinion, neither this decision 'nor even the observations on which Shri Purushot~ relied can afford· any assistance in cfeciding the point which this appeal bas raised before us.
Incidentally we may add that it was as a result of the observations made by the Privy C~uncil in that case thats. 426 of the Code was amended in 1945 and power has been conferred on appropriate dourts either to suspend the sentence or to grant bail as mentioned in the several sub-sections of s. 426. That is how s. 426(2A) and (2B) now deal with the subject of bail even though the main section is apart · of Chapter XXXI which deals with appeals, references and revisions. We must . accordingly hold that the view taken by the Bombay High Court about its inherent power to act in this case under s. 561A is right and must be ·confirmed~ It is hardly necessary to add that the inherent power conferred on High Courts under s.
561A has to be exercised sparingly, carefully and· with caution and only where such exercise is justified by the tests ·speciflcally laid down in the section itself; After all, procedure, whether criminal or civil, must serve the higher purpose of justiee; and it is only when the ends of justice are put in jeopardy by the conduct of the accuse. d that the inherent power can and should be exercised in cases like the present. The result is that. the aru>eal fails and must be dismissed. Appeal dismbsed.
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