J.M. JAIN Vs. GHAMANDIRAM K. GOWANI

JUDGEMENT

(1.) THIS petition under Article 227 of the Constitution raises a question as to whether a Magistrate can pass, an order directing ;the accused to be taken into custody on his bail -bond being cancelled having regard to the fact that he is already in detention pursuant to an order passed under Sub -section (1) of Section 3 by the competent authority under the provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for brevity's sake called 'COFEPOSA').

(2.) THE facts which have given rises to this petition are not in dispute. The petitioner who is the Assistant Collector of Customs, Preventive Department, Bombay, filed a complaint in the Court of the Chief Metropolitan Magistrate, Bombay, charging respondent No. 1 and some others with the offence of conspiracy to smuggle 10,054 foreign wrist watches of the value of Rs. 9,51,090, which were seized on April 9, 1969 from a room in Fernandez Building,, Dr. Deshmukh Lane, off V. P. Road Bombay, an offence punishable under Section 120B, Indian Penal Code read with Section 135 of the Customs Act, 1962, and Section 5 of the Imports, and Exports Control Act, 1947, and for the overt acts, under Section 135 of the Customs Act and Section S of the Imports and Exports (Control) Act, A bailable warrant in the sum of Rs. 30,000 with one surety in the like amount was issued against the respondent No, 1. On September 20, 1972, one Vasantlal Premji Shah stood surety for respondent No. 1 and executed the bail -bond as ordered by the Court under the provisions of Section 499 of the Code of Criminal Procedure, 1898 (hereinafter referred to as 'the old Code'), corresponding to Section 441 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the new Code'). The Maintenance of Internal Security Act, 1971 (hereinafter referred to as 'the MISA') was amended by an Ordinance so as to empower the competent authority to detain a person indulging in the offence of smuggling or activities relating thereto. On September 19, 1974, the respondent was detained under an order passed under the provisions of Section 3 of the MISA. The respondent challenged his aforesaid detention, by a writ petition in this Court where he succeeded and the order of detention was quashed and on November 2, 1974, he was released from detention. On December 19, 1974, the COFEPOSA came into force. On July 1, 1975, a fresh order of detention against the respondent was passed under the provisions of Sub -section (1) of Section 3 of that Act, and the respondent No. 1 was taken in custody on that very day. On June 3, 1976, the surety Vasantlal Shah made an application to the learned Magistrate that since the respondent No. 1 was put in detention under the COFEPOSA, he did not desire to continue as surety for the respondent. He, .therefore, prayed that the learned Magistrate should issue an examination warrant against the respondent to enable him to apply for cancellation) of the bail -bond of the accused. Incidentally, it may be stated that the criminal case itself was fixed on board for hearing on that date. On this application, the learned Magistrate passed an order directing that an examination -warrant be issued against the respondent. It appears that the prosecution was not given any notice regarding this application filed by the surety. The matter was then adjourned to June 24, 1976, when, however, both the counsel for the respondent and the Public Prosecutor were present. On that date, the learned Magistrate passed the following order, which has given rise to this petition before us,: The accused is produced today. His bail bond is cancelled and he is taken, into custody on the application of his surety. Thereafter on September 27, 1976, the complainant filed an application praying that the respondent No. 1 should not be taken into judicial custody pursuant to the order dated June 24, 1976. It was further stated in the application that the respondent should be called upon to find out other sufficient sureties as per the requirement of Sub -section (5) of Section 444 of the new Code, and if he fails to do so, he should be continued on personal bond instead of taking him in judicial custody. In this application, it was contended by the complainant that the mandatory requirement of Sub -section (5) of Section 444 were not carried out and therefore the impugned order directing the respondent to be taken in to custody could not be legally passed. It was further contended by the complainant that the accused detained under COFEPOSA are found to be resorting to the device of getting their sureties to make applications for withdrawal of their surety bonds and allowing an order to be made for their being taken into formal custody with a view to gaining an undue advantage of a set -off against the sentence of imprisonment as provided under Section 428 of the new Criminal Procedure Code. According to the complainant, the respondent should not be allowed to resort to such device which would result in his getting undue advantage of the provisions of Section 428 in case he was found guilty and sentenced to suffer imprisonment. By his order dated October 15, 1976, the learned Chief Metropolitan Magistrate rejected the application of the complainant. He took the view that the provisions of Sub -section (3) of Section 444 of the new Code were substantially complied with on the facts of this case, and he had exercised the discretion which, was. conferred on him by the said provisions and had passed an order taking the accused in custody. The learned Magistrate has stated in his order that he considered it futile to offer fresh bail to the respondent and, therefore, accused was not asked to find fresh surety in view of the fact that it would not have been possible for him to release the respondent on bail in view of the said provisions of Section 12(6). The learned Magistrate rejected the contention raised on behalf of the complainant that the law did not contemplate imposition of one custody over the other. As regards the argument based on the provisions of Section 428 of the new Code, the learned Magistrate did not express his opinion on the ground that the question of the respondent being entitled to claim set -off under Section 428 is hypothetical at this stage and would arise only in the event of his conviction and his being sentenced to imprisonment for a particular period. He further held that he had no jurisdiction to revise or review his own order passed on June 24; 1976. The complainant has challenged both the orders dated June 24, 1976 and October 15, 1976 in this petition filed by him under Article 227 of the Constitution.

(3.) BEFORE we proceed to examine the contentions, we think it necessary to refer to some of the material provisions of the Code of Criminal Procedure relating to the powers of the Magistrate to take an accused in custody or his powers to release the accused on bail. Sub -section (1) of Section 167 of the new Code, which makes departure from the provisions of the old Code in some respects, provides that, whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty -four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well -founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub -inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. Sub -section (2) thereof empowers the Magistrate to whom an accused person is forwarded under Sub -section (1) to authorise the detention of the accused in such custody as he thinks fit, for a term not exceeding fifteen days in the whole. Clause (a) of the proviso to this section gives powers to the Magistrate to authorize detention of the accused persons otherwise than in custody of the police beyond the period of fifteen days on adequate grounds. However, it is provided that the Magistrate cannot authorise the detention of the accused person for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person has to be released on bail if he is prepared to and does furnish bail. Section 309, which falls under chap. 24 of the new Code, provides for the power to postpone or adjourn proceedings. Under Sub -section (2) thereof, it is provided that, if the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. Under the first proviso to Sub -section (2), the Magistrate cannot pass an order remanding an accused person to custody for a term exceeding fifteen days at a time. Thus, the provisions of Section 309 would indicate that on every date the accused must be brought before the Court, and for that purpose, the accused has got to be remanded to custody for a term not exceeding fifteen days at a time. Of course the provisions of Section 309 regarding custody will not apply to an accused person who has been granted bail by the Magistrate. Chapter 33 of the new Code contains the provisions as to bail and bail -bonds and incorporates the provisions from Section 436 to Section 450. Section 436 deals with a case where a person is accused of a non -bailable offence; whereas Section 437 deals with a case where a person is accused of or suspected of the commission of any non -bailable offence. Under Sub -section (1) of Section 436, if any person other than a person accused of a non -bailable offence is arrested or detailed without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail. However, under the first proviso to Sub -section (1), a discretion is given to the police, officer or the Court as the case may be to discharge the accused person on his executing a bond without surety for his appearance instead of taking a bail from him. Then Sub -section (1) of Section 437, which applies to the case of a person who is accused of of suspected of the commission of a non -bailable offence, provides 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 charge of a .police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Provisions conferring powers on the Court to grant anticipatory bail are contained in Section 438. Under Section 439, special powers are given to High Court or Court of Session regarding bail. Under Sub -section (1) of Section 441, before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or Court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or Court, as the case may be. Then we may refer to the provisions of Sections 442 and 444 which are of some importance while considering the question of the legality of the order passed by the learned Magistrate. These two provisions are as under: 442. (1) As soon as the bond has been executed, the person for whose appearance it has been executed shall be released; and, when he is in jail, the Court admitting him to bail shall issue an order of release to the officer in charge of the jail, and, such officer on receipt of the orders shall release him. (2) Nothing in this section, section 436 or section 437 shall be deemed to require the release of any person liable to be detained for some matter other than that in respect of which the bond was executed. 444. (1) All or any sureties for the attendance and appearance (2) On such application being made, the Magistrate shall issue his warrant of arrest directing that the person so released be brought before him. (3) On the appearance of such person pursuant to the warrant, or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as relates to the applicants, and shall call upon such person to find other sufficient sureties, and, if he fails to do so, may commit him to jail.