CROWN PROSECUTOR Vs. NSKRISHNAN

JUDGEMENT

(1.) These petitions have been filed by the Crown Prosemt Madras under Section 497(5) of the Criminal P. C. for the re-arrest of the two respondents under the following circumstances: These respondents were arrested by the police on 27 Decemember, 1944, in connection with the death of one Lakshmikantham, who is alleged to have been murdered on the morning of 8 November, 1944, in Vepery, Madras, by two persons named Vadivelu and Nagalingam. Their application for bail was rejected by the Commissioner of Police, Madras, in his capacity as a Presidency Magistrate but on an application to the Vacation Judge of this Court they were enlarged on bail on 29 December, 1944, by Patanjali Sastri, J., panding the investigation of the case against them. The conditions were that each of them should excute a bond for Rs. 10,000 with two sureties each for Rs 10 000 and they were directed execute a bond for Rs. 10, 0000 with two sureties each for Rs. 10,0000 and they were directed to leave Madras immediately after their release and not to visit or remain in Madras until the commencement of the trial of the case.

(2.) The grounds on which their application for bail was based were that they were not arrested until seven weeks after the alleged murder that they had no connection with it whatever, and that they, were innocent. The respondent Bagavathar further alleged that he must have been falsely implicated in the case. The charge-sheet has since been filed before the Chief Presidency Magistrate on 27 January,1945, against eight accused, of whom these respoondents the third and fourth accused. Briefly, the case against these respondents is that they were members of a criminal conspiracy to murder the deceased, in pursuance of which he was attacked and stabbed on. 8 November, 1944, by Vadivelu and Nagalingam. In the affidavit supporting these petitions it is stated that in addition to the material available at the time when these respondents were arrested and released on bail further evidence has been obtained showing that these respondents were active members of the conspiracy and that they hired other members of it to murder the deceased. The learned Grown Prosecutor has stated before the Court that there is now clear and cogent evidence available in proof of the guilt of the respondents, and he presses for the revocation of the previous orders granting bail and the re-arrest and committal of the respondents to custody.

(3.) The main objection taken by both the learned Counsel for the respondents is that the power conferred by Section 497(5) of the Criminal P. C. to cancel bail and re- arrest an accused is expressly limited to cases in which the : accused has been released under Section 497 of the Code, and that the provisions of Clause (5) of this section have no application to an accused person who has been released on bail under Section 498. On the facts now before the Court it is abundantly clear that these respondents were not released on bail under Section 407 of the Code, which applies only when a person is released on bail at the time of his arrest or by a Court before whom he appears or is produced at the time of his remand, enquiry or trial but under Section 498 of the Code after their prior application had been refused by the Presidency Magistrate. Section 497(5) is in these words: A High Court or Court of Session and, in the case of a person released by itself any other Court may cause any person who has been released under this section to be arrested and may commit him to custody. Mr. V.V. Srinivasa Ayyangar contends that the words of this clause are devoid of any ambiguity and that they expressly limit the power to revoke bail and direct the re-arrest of an accused to cases in which bail has been granted under Section 497 of the Code.