MADHUKAR PURSHOTTAM MONDKAR Vs. TALAB HAJI HUSSAIN

JUDGEMENT

(1.) THE two petitions presented by the Superintendent, Central Excise, Preventive and Customs, Bombay raise questions of considerable importance. The first respondent along with others was charged under Section 120b of the Indian Penal Code and Section 167 (81) of the Sea Customs Act. He was released on hail of Rs. 75,000 with one surety of like amount on 9-12-1957. On 4-1-1958 an application was made by the complainant, who is the petitioner before us, for cancellation of that bail and the learned Chief Presidency Magistrate who was trying the case held that he had no jurisdiction to cancel the bail. Against that order these two petitions have been preferred. The first is an application to the High Court to exercise its own power arid cancel the bail. The other is au application in revision against the order of the Chief Presidency Magistrate holding that he has no jurisdiction to cancel the bail. Now, before we go into the merits and decide whether this is a fit case for cancellation of bail, we must carefully examine whether we have jurisdiction to pass the order, and it has been strenuously urged by Mr. Somjee on behalf of the first respondent that the High Court has no power under the circumstances of this case and has no jurisdiction having regard to the nature of the of Fence with winch the accused is charged, to cancel the bail already granted by the Chief Presidency Magistrate. The first important fact to hear in mind and which has really led to the whole debate before us is that the offence under Section 167 (81) of the Sea Customs Act is a bailable offence. The Criminal Procedure Code does not lay down any principle which distinguishes bailable offences from non-bailable offences, except that in the Second Schedule to the Code certain offences are described as bailable, and certain offences are described as non-bailable, and when we turn to offences not covered by the Indian Penal Code, it is provided that any offence against other laws, if punishable with imprisonment for one year and upwards but less than three years, has been made bailable, and the offence with which the accused is charged is punishable under the Sea Customs Act with imprisonment of less than three years. But we take it that in creating these two classes of offences, the Legislature must have had in mind the gravity of the offence. Grave offences are ordinarily placed in the category of non-bailable offences and offences which are less serious or less dangerous to the public are put in the category of bailable offences. But it may happen--and it has happened in this case--that even a bailable offence may assume serious importance. It may depend upon the nature of the offence, it may depend upon the circumstances in which the offence was committed. It may depend upon the amount involved, and although ordinarily the offence may not be serious, when all these factors are taken into consideration, as we just said, a bailable offence may assume the same serious proportion as a non-bailable offence.

(2.) NOW, turning to the provisions in the Code with regard to bait, Section 496 deals with bail in the case of bailable offences and undoubtedly that section confers upon the accused a right to be released on bail, and as the language used is the language of mandate the Court has no option but to enlarge an accused person on bail if he is accused of a bailable offence. The only condition laid down is that he has got to execute the necessary bond provided under the Code. In sharp contrast with the language of Section 496 is the language used by the Legislature in Section 497. There discretion is conferred upon the Court whether to release or not to release an accused person accused or suspected of the commission of a non-bailable offence. The expression used there is not "shall" but "may" and there is a prohibition in that section against the release of an accused person on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Sub-section (5) of that section confers upon the High Court or Court of Session and in the case of a person released by itself, any other Court to cause any person who has been released under this section to be arrested and to commit him to custody. It is again significant that there is no similar provision in Section 493. Therefore, the argument that has been advanced, and undoubtedly the argument has considerable force, is that the Legislature not only made a distinction between the right of an accused person in a bailable offence to obtain bail as against an accused person charged with a non-bailable offence, but even with regard to his being re-arrested and committed to custody a vital distinction is made between the case of a person accused of a bailable offence and a person accused of a non-bailable offence. In the former case not only has he a right to be released on bail, but he cannot be re-arrested. In the latter case he has no right to be released on bail and even if he is released on bail he is liable to be re-arrested and committed to custody. It is further pointed out that under Section 498, which confers power upon the High Court and the Court of Session to release a person on bail, Sub-section (2) has been recently enacted by the amendment of the Criminal Procedure Code and that subsection confers the power upon the High Court or the Court of Session to arrest and commit to custody any person who has been admitted to bail, and it is pointed out that even when the Code was recently amended and when a seeming lacuna in Section 498 was made good by conferring the necessary power upon the High Court and the Court of Session, the Legislature did not make any similar provision under Section 496. It is also pointed out that the Privy Council in Jairam Das v. Emperor, 47 Bom LR 634: (AIR 1945 PC 94) (A), has laid down that the provisions with regard to bail are contained in Chapter XXXIX and that Chapter is a complete and exhaustive statement of the powers of the High Court in India to grant bail, and it is therefore urged that it is not competent to the High Court to exercise any power with regard to bail which is not to be found within the four corners of Chapter XXXIX of the Criminal Procedure Code. On the other hand, counsel for the complainant has relied on the inherent power of the High Court under Section 561a and while conceding that there is no specific provision in the Code itself for the arrest of an accused person who has been released on bail, in a case where he has been accused of a bailable offence, the High Court is not helpless when confronted with a serious situation and that in a proper case the High Court could always requisition to its aid the inherent power conferred upon it by Section 561a. It is true and it is well settled that when you have a specific provision in a law of enjoining upon a Court to do something or not to do something, then the Court cannot go contrary to the mandate of the Legislature by relying upon its inherent power. But it is equally well settled that no Legislature and no law can contemplate every situation and every eventuality and the best drafted of laws might have some lacuna. It is to meet with those unforeseen cases and situations and to make good the lacuna if they exist that a Code of law reserves to a Court inherent powers.

(3.) NOW, let us consider what the situation would be if we were to accept Mr. Somjee's argument. The result would be most extraordinary. It is not disputed that if an accused person who is charged with a. non-bailable offence witnesses or to impede the course of justice or make a fair trial difficult if not impossible, the High Court or the Court of Session even could under Sub-section (5) of Section 497 cancel the bail and cause him to be arrested and committed to custody. But it is seriously argued that a person accused of a bailable offence has complete liberty to do what he likes. He can threaten prosecution witnesses, he can suborn them, he can interfere with the course of justice, he can make it impossible for honest witnesses to come forward, and the Court must look on completely helpless without being in a position to do anything. Before one accepts such a proposition, one must hesitate a good deal and there must be something in the law so clear and so categoric that the Court is compelled to say that however serious the situation, however serious the offence, however gross the conduct of the person released on bail, the Court must continue him on bail and has no power to re-arrest him and commit him to custody. Undoubtedly, the right to be released on bail is a very important right of the citizen. It is an extremely important safeguard which the Code of Criminal Procedure confers upon the subject, and this Court would be most reluctant in any way to impair that right or that safeguard. The Legislature has clearly indicated that in the case of bailable offences that right must be conceded to the accused person and he is entitled as a matter of right to be released on bail. It is therefore obvious that the High Court or any Court does not possess the ordinary normal power to cancel bail in a case of a bailable offence as it has in the case of a non-bailable offence. No limitation is placed upon the power of the High Court under Sub-section (5) of Section 497. Of course it must examine the case carefully and it must come to the conclusion that it is a proper case for the cancellation of the bail. But when we come to a bailable offence, the Court must start with the position that the law does not permit it to cancel the bail of an accused person charged with a bailable offence, that the law requires that such an accused person should be at large and should not be confined to custody while he is awaiting his trial. But if the Court is satisfied that in a particular case the activity of the accused is such as to make a fair and proper trial impossible, that the accused is in a position to interfere and tamper with prosecution witnesses, that he is in a position to threaten the witnesses in a manner which would prevent them from coming forward and giving truthful evidence, then is it suggested that the Court has no inherent jurisdiction to prevent such a situation confirming? It seems to us that this is exactly the situation which Section 561-A was intended to deal with. Having provided in Section 498 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 we have just described. That is an obvious lacuna in the Code of Criminal Procedure. Even so, if there had been any express provision in the Code prohibiting the Court from arresting any person who has been released on bail under Section 496, then however reluctantly the Court would have to carry out the mandate of the Legislature. But although Mr. Somjee is right that there is no provision corresponding to Sub-section (5) of Section 497 or Sub-section (2) of Section 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.