AMJAD SHEIK Vs. STATE

JUDGEMENT

(1.) This Rule at the Instance or the petitioner Amjad Sheik who was arrested in connection with a case under Section 304, I. P. C., is directed against an order, of the learned Additional Sessions Judge of Malda cancelling his bail and ordering that he should be forthwith taken into custody. It appears that after his arrest the petitioner was placed in custody by the Magistrate who refused his prayer for bail. The learned Additional Sessions Judge being moved granted his bail. Subsequently on behalf of the prosecution a petition was made before the learned Addl. Sessions Judge alleging that the petitioner was tampering with evidence and praying for the cancellation of his bail. On that petition the learned Addl. Sessions Judge went into evidence allowing the petitioner full opportunity to cross-examine the witnesses produced on behalf of the prosecution. On the evidence before him he came to the finding that the allegations made against the petitioner were correct and well founded and made the order now challenged.

(2.) It is not disputed before us that on the evidence before him the learned Addl. Sessions Judge was correct in taking the view that he did, viz., that the petitioner was trying to tamper with the evidence for the prosecution. What is however contended before us is that the learned Sessions Judge was not entitled under Section 497 (5), Criminal P.C. to cancel the bail which he himself had granted under Section 498, Criminal P.C., because Section 498, Criminal P.C., is not in any way connected with or controlled by the provisions or Section 497, Criminal P, C. For this proposition reliance was placed on behalf of the petitioner on -- 'Ahmad v. The Crown', AIR I960 Lah 195 (A), which refers to three other cases, -- 'Local Govt. v. Gulam Jilani', AIR 1925 Nag 228 (B), -- 'Md. Ibrahim v. Emperor', AIR 1932 All 534 (C), and.-- 'Crown Prosecutor, Madras v. N.S. Krishnan, AIR 1945 Mad 250 (D). These cases undoubtedly support the view that Section 498, Criminal P, C., is independent of Section 497, Criminal P. C. But then the Privy Council in -- 'Jairam Das v. Emperor', AIR 1945 PC 94 (E) took a different view. The question before the Privy Council was whether the High Court in India had power to grant ball to a person who had been convicted and sentenced to imprisonment and to whom His Majesty in Council had given special leave to appeal against his conviction and sentence. In deciding this question the Privy Council had to consider the Indian decisions which took the view that the High Court had the power. In negativing that view the Privy Council observed that the only granting of bail which is referred to in Chapter XXXIX of the Code of Criminal Procedure is the granting of bail to accused persons and although it is true that in the Indian decisions Section 498, Criminal P. C., seems to have been treated as though it included cases in which persons already convicted were concerned, such view appeared to their Lordships to be a misapprehension based upon a mistaken reading of a few words in that. Section. It finally observed that in truth the scheme of Chapter XXXIX is that Ss. 496 and 497 provide for the granting of bail to accused persons before trial and the other Sections of the Chapter deal with matters ancillary or subsidiary to that provision.

(3.) The main reason which led to the other view which some of the Indian Courts took of Ss. 497 and 498, Criminal P. C., is that while in Section 497 (5), Criminal P. C., there occurred the words 'under this Section' which apparently seeks to limit the action under Section 497 (5) to bail granted under that Section only, there is no corresponding provision in Section 498, but as pointed out by the Privy ' Council, Section 498, Criminal P.C., is not really independent of Section 497, Criminal P. C. This appears to be obvious from the following circumstances: Section 496, Criminal P.C., provides for the granting of bail in bailable cases and Section 497, Criminal P.C., provides for the granting of bail in non-bailable cases. These are the only sections which provide for granting of bail and the execution of bonds so that when Section 498, Criminal P. C., opens with the expression "the amount of every bond executed under this Chapter", it becomes at once obvious that in order' to construe Section 498, Criminal P. C., one must hark back to the two earlier sections viz., 496 and 497, Criminal P. C.