Case Summary
| Citation | Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 : AIR 1978 SC 179 |
| Keywords | sec 437,439, bail, notorious docoit, murder |
| Facts | Sunder was said to be a notorious dacoit who was wanted in several cases of murder and dacoity allegedto have been committed by him in Delhi and elsewhere. It is alleged that the appellants ranging from the Deputy Inspector General of Police and the Superintendent of Police at the top down to some police constables were a party to a criminal conspiracy to kill Sunder and caused his death by drowning him in the Yamuna in pursuance of the conspiracy. On the allegations, this is principally a case of criminal conspiracy to murder a person in police custody be he a bandit. The appellants were suspended police officer who were accused of the offence of murdering a notorious dacoit. The Magistrate declined to release them on bail then they approached session judge under Section 439 of CrPC and secured released on bail. The Delhi High Court cancelled the bail granted by the Session Court during appeal against which a Special Leave Petition (SLP) appeal was filed before Supreme Court. |
| Issues | Whether it is possible to define exact factors which should be considered by the Courts while granting or rejecting the bail? Whether there is an overriding consideration in granting bail? |
| Contentions | |
| Law Points | The Court observed that the Section 437(1) of CrPC is only concerned with the Court of Magistrate and there is no provision under Section 437(1), when the accused is for the first time produced after initial arrest before the Court of Session or before HC. If the accused with the allegation against him of the offence punishable with death or imprisonment for life, then the Court of Magistrate has no other option except rejection of the bail. Under Section 439(1) it confers the special powers to the HC or Session Court in respect of bail. The common point in the case of Section 437(1) and Section 439(1) are the nature and gravity of the circumstances in which the offences are committed; the position and status of the accused with reference to the victim and the witnesses. The Session Court and the HC may be approached by the accused after refusal of bail by the Magistrate under Section 437. There are two paramount considerations to be looked into while granting bail:Likelihood of the accused fleeing from justice; and Tampering with prosecution evidence related to ensuring a fair trial of the case in a court of Justice. The Court said as far as the bail of the offence punishable with death or life imprisonment is concerned, it is necessary for the Court to consider whether the evidence discloses a prima facie case to warrant his detention in jail besides the other relevant factors. |
| Judgement | The Court finally held that the Session Court was wrong while granting bail to the accused and unable to appreciate the evidence, hence appeals dismissed. |
| Ratio Decidendi & Case Authority | Section 437 – When bail may be taken in case of non-bailable offence.— (1) 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 HC or Court of session, he may be released on bail, but—(i) such person 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; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court: Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor. Section 439 – Special powers of HC or Court of Session regarding bail — (1) A High Court or Court of Session may direct, —(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application. |
Full Case Details
P.K. GOSWAMI, J. -These two appeals by Special Leave are directed against the judgment
and order of the Delhi High Court cancelling the orders of bail of each of the appellants passed
by the learned Sessions Judge, Delhi. They were all arrested in pursuance of the First
Information Report lodged by the Superintendent of Police, CBI on June 10, 1977 in what is
now described as the “Sunder Murder Case”. The report at that stage did not disclose names of
accused persons and referred to the involvement of “some Delhi Police personnel”. Sunder was
said to be a notorious dacoit who was wanted in several cases of murder and dacoity alleged to
have been committed by him in Delhi and elsewhere. It is stated- that by May, 1976 Sunder
became a “security risk for Mr Sanjay Gandhi”. It appears Sunder was arrested at Jaipur on
August 31, 1976 and was in police custody in Delhi between November 2, 1976 and November
26, 1976 under the orders of the Court of the Additional Chief Metropolitan Magistrate,
Shahdara, Delhi.
2. It is alleged that the appellants ranging from the Deputy Inspector General of Police and
the Superintendent of Police at the top down to some police constables were a party to a criminal
conspiracy to kill Sunder and caused his death by drowning him in the Yamuna in pursuance
of the conspiracy. According to the prosecution, the alleged murder took place on the night of
November 24, 1976.
3. The appellants were arrested in connection with the above case between June 10, 1977
and July 12, 1977 and the Magistrate declined to release them on bail. Thereafter, they
approached the learned Sessions Judge under Section 439 (2) [sic (1)], Criminal Procedure
Code, 1973 (briefly the new Code) and secured release on bail of the four appellants, namely,
Gurcharan Singh (Superintendent of Police), P.S. Bhinder (D.I.G. of Police), Amarjit Singh
(Inspector) and Constable Paras Ram on August 1, 1977 and of the eight other police personnel
on August 11, 1977.
4. Charge-sheet was submitted on August 9, 1977 against 13 accused including all the
appellants under Section 120B read with Section 302, IPC and under other sections. The
thirteenth accused who was also a policeman has been evading arrest.
5. The Delhi Administration moved the High Court under Section 439(2), Cr. P.C. against
the orders of the learned Sessions Judge for cancellation of the bail. On September 19, 1977 the
High Court set aside the orders of the Sessions Judge dated August 1, 1977 and August 11,
1977 and the bail bonds furnished by the appellants were cancelled and they were ordered to
be taken into custody forthwith. Hence these appeals by Special Leave which were argued
together and will be disposed of by this judgment.
6. In order to appreciate the submissions, on behalf of the appellants, of Mr Mulla followed
by Mr Mukherjee it will be appropriate to briefly advert to certain relevant facts.
7. On the allegations, this is principally a case of criminal conspiracy to murder a person in
police custody be he a bandit. The police personnel from the Deputy Inspector General of Police
to police constables are said to be involved as accused.
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8. Before the FIR was lodged on June 10, 1977, there had been a preliminary inquiry
conducted by the CBI between April 6, 1977 and June 9, 1977 bearing upon the death of Sunder.
Fifty-three witnesses were examined in that inquiry and six of them were said to be eyewitnesses. These eye-witnesses were all police personnel. During this preliminary inquiry, all
the six alleged eye-witnesses did not support the prosecution case, but gave statements in favour
of the accused. However, as stated earlier, the FIR was lodged on June 10, 1977 and
investigation proceeded in which statements of witnesses were recorded under Section 161,
Cr.P.C The appellants were also arrested and suspended during the period between June 10,
1977 and July 12, 1977. During the course of the investigation, seven witnesses including six
persons already examined during the preliminary inquiry, gave statements implicating the
appellants in support of the theory of prosecution. The witnesses were also forwarded to the
Magistrate for recording their statements under Section 164, Cr.P.C All the seven witnesses, it
is stated, continued to support the prosecution case to their statements on oath recorded under
Section 164, Cr.P.C Six eye-witnesses who made such discrepant statements and had supported
the defence version at one stage, explained that some of the accused, namely, D.S.P. R. K.
Sharma and Inspector Harkesh had exercised pressure on them to make such statements in
favour of the defence. The seventh eye-witness A.S.I. Gopal Das, who had not been examined
earlier, made statements under Section 164, Cr.P.C. in favour of the prosecution.
9. It is in the above background that the Delhi Administration moved the High Court for
cancellation of the bail granted by the Sessions Judge alleging that there was grave
apprehension of the witnesses being tampered with by the accused persons on account of their
position and influence which they wielded over the witnesses. The learned Sessions Judge
adverting to this aspect had, while granting bail, observed as follows:
The argument of the learned Public Prosecutor that if released on bail, the petitioner will
misuse their freedom to tamper with the witnesses is not quite convincing. After all, there
is little to gain by tampering with the witnesses who have, themselves, already tampered
with their evidence by making contradictory statements in respect of the same transaction.
10. The learned Sessions Judge ended his long discussion as follows:
To sum up, after reviewing the entire material including the inquest proceedings held by
the Sub-Divisional Magistrate, statements recorded by the CBI during the preliminary
enquiry and under Section 161, Cr.P.C. and the statements recorded under Section 164,
Cr.P.C and having regard to the inordinate delay in registering this case and to the
circumstances that there is little probability of the petitioners flying from justice or
tampering with the witnesses, and also having regard to the character of evidence, I am
inclined to grant bail to the petitioners.
11. The High Court, on the other hand, set aside the orders of the Sessions Judge observing
as follows:
Considering the nature of the offence, character of the evidence, including the fact that
some of the witnesses during preliminary inquiry did not fully support the prosecution case,
the reasonable apprehension of witnesses being tampered with and all other factors relevant
for consideration, while considering the application for grant or refusal of bail in a nonbailable offence punishable with death or imprisonment for life, I have no option but to
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cancel the bail. I am of the considered view that the learned Sessions Judge did not exercise
his judicial discretion on relevant well-recognised principles and factors which ought to
have been considered by him.
12. Section 437 of the new Code corresponds to Section 497 of the Code of Criminal
Procedure, 1898 (briefly the old Code) and Section 439 of the new Code corresponds to Section
498 of the old Code. Since there is no direct authority of this Court with regard to Section 439,
Cr.P.C of the new Code, Counsel for both sides drew our attention to various decisions of the
High Courts under Section 498, Cr.P.C of the old Code.
13. Mr Mulla drew our particular attention to some change in the language of Section
437(1), Cr.P.C. (new Code) compared with Section 497(1) of the old Code. Mr Mulla points
out that while Section 497(1), Cr.P.C of the old Code, in terms, refers to an accused being
“brought before a Court”, Section 437(1), Cr.P.C uses the expression “brought before a Court
other than the High Court or a Court of Session”. From this, Mr Mulla submits that limitations
with regard to the granting of bail laid down under Section 497 (1) to the effect that the accused
“shall not be so released if there appears reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment for life” are not in the way of the
High Court or the Court of Session in dealing with bail under Section 439 of the new Code. It
is, however, difficult to appreciate how the change in the language under Section 437(1) affects
the true legal position. Under the new as well as the old Code an accused after being arrested is
produced before the Court of a Magistrate. There is no provision in the Code whereby the
accused is for the first time produced after initial arrest before the Court of Session or before
the High Court. Section 437(1), Cr.P.C, therefore, takes care of the situation arising out of an
accused being arrested by the police and produced before a Magistrate. What has been the rule
of production of accused person after arrest by the police under the old Code has been made
explicitly clear in Section 437(1) of the new Code by excluding the High Court or the Court of
Session.
14. From the above change of language it is difficult to reach a conclusion that the Sessions
Judge or the High Court need not even bear in mind the guidelines which the Magistrate has
necessarily to follow in considering bail of an accused. It is not possible to hold that the Sessions
Judge or the High Court, certainly enjoying wide powers, will be oblivious of the considerations
of the likelihood of the accused being guilty of an offence punishable with death or
imprisonment for life. Since the Sessions Judge or the High Court will be approached by an
accused only after refusal of bail by the Magistrate, it is not possible to hold that the mandate
of the law of bail under Section 437, Cr.P.C for the Magistrate will be ignored by the High
Court or by the Sessions Judge.
16. Section 439 of the new Code confers special powers on High Court or Court of Session
regarding bail. This was also the position under Section 498, Cr.P.C of the old Code. That is to
say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court
of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of
the new Code, the High Court or the Court of Session may direct any person who has been
released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was
worded in somewhat different language when it said that a High Court or Court of Session may
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cause any person who has been admitted to bail under sub-section (1) to be arrested and may
commit him to custody. In other words, under Section 498 (2) of the old Code, a person who
had been admitted to bail by the High Court could be committed to custody only by the High
Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court
of Session that could commit him to custody. This restriction upon the power of entertainment
of an application for committing a person, already admitted to bail, to custody, is lifted in the
new Code under Section 439(2). Under Section 439(2) of the new Code, a High Court may
commit a person released on bail under Chapter XXXIII by any Court including the Court of
Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court
of Session cannot cancel a bail which has already been granted by the High Court unless new
circumstances arise during the progress of the trial after an accused person has been admitted
to bail by the High Court. If, however, a Court of Session had admitted an accused person to
bail, the State has two options. It may move the Sessions Judge if certain new circumstances
have arisen which were not earlier known to the State and necessarily, therefore, to that Court.
The State may as well approach the High Court being the superior court under Section 439(2)
to commit the accused to custody. When, however, the State is aggrieved by the order of the
Sessions Judge granting bail and there are no new circumstances that have cropped up except
those already existed, it is futile for the State to move the Sessions Judge again and it is
competent in law to move the High Court for cancellation of the bail. This position follows
from the subordinate position of the Court of Session vis-a-vis the High Court.
17. It is significant to note that under Section 397, Cr.P.C of the new Code while the High
Court and the Sessions Judge have the concurrent powers of revision, it is expressly provided
under sub-section (3) of that section that when an application under that section has been made
by any person to the High Court or to the Sessions Judge, no further application by the same
person shall be entertained by the other of them. This is the position explicitly made clear under
the new Code with regard to revision when the authorities have concurrent powers. Similar was
the position under Section 435(4), Cr.P.C of the old Code with regard to concurrent revision
powers of the Sessions Judge and the District Magistrate. Although, under Section 435(1)
Cr.P.C of the old Code the High Court, a Sessions Judge or a District Magistrate had concurrent
powers of revision, the High Court’s jurisdiction in revision was left untouched. There is no
provision in the new Code excluding the jurisdiction of the High Court in dealing with an
application under Section 439(2), Cr.P.C to cancel bail after the Sessions Judge had been moved
and an order had been passed by him granting bail. The High Court has undoubtedly jurisdiction
to entertain the application under Section 439(2), Cr.P.C for cancellation of bail
notwithstanding that the Sessions Judge had earlier admitted the appellants to bail. There is,
therefore, no force in the submission of Mr Mukherjee to the contrary.
18. Chapter XXXIII of the new Code contains provisions in respect of bail bonds. Section
436, Cr.P.C, with which this Chapter opens makes an invariable rule for bail in case of bailable
offences subject to the specified exception under sub-section (2) of that section. Section 437,
Cr.P.C provides as to when bail may be taken in case of non-bailable offences. Sub-section (1)
of Section 437, Cr.P.C makes a dichotomy in dealing with non-bailable offences. The first
category relates to offences punishable with death or imprisonment for life and the rest are all
other non-bailable offences. With regard to the first category. Section 437(1), Cr.P.C imposes
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a bar to grant of bail by the Court or the officer incharge of a police station to a person accused
of or suspected of the commission of an offence punishable with death or imprisonment for life,
if there appear reasonable grounds for believing that he has been so guilty. Naturally, therefore,
at the stage of investigation unless there are some materials to justify an officer or the Court to
believe that there are no reasonable grounds for believing that the person accused of or
suspected of the commission of such an offence has been guilty of the same, there is a ban
imposed under Section 437(1), Cr.P.C. against granting of bail. On the other hand, if to either
the officer in-charge of the police station or to the Court there appear to be reasonable grounds
to believe that the accused has been guilty of such an offence there will be no question of the
Court or the officer granting bail to him. In all other non-bailable cases judicial discretion will
always be exercised by the Court in favour of granting bail subject to sub-section (3) of Section
437, Cr.P.C with regard to imposition of conditions, if necessary. Under sub-section (4) of
Section 437, Cr.P.C. an officer or a Court releasing any person on bail under sub-section (1) or
sub-section (2) of that section is required to record in writing his or its reasons for so doing.
That is to say, law requires that in non-bailable offences punishable with death or imprisonment
for life, reasons have to be recorded for releasing a person on bail, clearly disclosing how
discretion has been exercised in that behalf.
19. Section 437, Cr.P.C. deals, inter alia with two stages during the initial period of the
investigation of a non-bailable offence. Even the officer in-charge of the police station may, by
recording his reasons in writing, release a person accused of or suspected of the commission of
any non-bailable offence provided there are no reasonable grounds for believing that the
accused has committed a non-bailable offence. Quick arrests by the police may be necessary
when there are sufficient materials for the accusation or even for suspicion. When such an
accused is produced before the Court, the Court has a discretion to grant bail in all non-bailable
cases except those punishable with death or imprisonment for life if there appear to be reasons
to believe that he has been guilty of such offences. The Courts over-see the action of the police
and exercise judicial discretion in granting bail always bearing in mind that the liberty of an
individual is not unnecessarily and unduly abridged and at the same time the cause of justice
does not suffer. After the Court releases a person on bail under sub-section (1) or sub-section
(2) of Section 437, Cr.P.C it may direct him to be arrested again when it considers necessary so
to do. This will be also in exercise of its judicial discretion on valid grounds.
20. Under the first proviso to Section 167(2) no Magistrate shall authorise the detention of
an accused in custody under that section for a total period exceeding 60 days on the expiry of
which the accused shall be released on bail if he is prepared to furnish the same. This type of
release under the proviso shall be deemed to be a release under the provisions of Chapter
XXXIII relating to bail. This proviso is an innovation in the new Code and is intended to speed
up investigation by the police so that a person does not have to languish unnecessarily in prison
facing a trial. There is a similar provision under sub-section (6) of Section 437, Cr. P.C which
corresponds to Section 497 (3A) of the old Code. This provision is again intended to speed up
trial without unnecessarily detaining a person as an undertrial prisoner, unless for reasons to be
recorded in writing, the Magistrate otherwise directs. We may also notice in this connection
sub-section (7) of Section 437 which provides that if at any time after the conclusion of a trial
of any person accused of non-bailable offence and before the judgment is delivered, the Court
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is of opinion that there are reasonable grounds for believing that the accused is not guilty of
such an offence, it shall release the accused, if he is in custody, on the execution of him of a
bond without sureties for his appearance to hear the judgment. The principle underlying Section
437 is, therefore, towards granting of bail except in cases where there appear to be reasonable
grounds for believing that the accused has been guilty of an offence punishable with death or
imprisonment for life and also when there are other valid reasons to justify the refusal of bail.
21. Section 437, Cr.P.C is concerned only with the Court of Magistrate. It expressly
excludes the High Court and the Court of Session. The language of Section 437(1) may be
contrasted with Section 437(7) to which we have already made a reference. While under subsection (1) of Section 437, Cr. P.C the words are: “If there appear to be reasonable grounds for
believing that he has been guilty”, sub-section (7) says: “that there are reasonable grounds for
believing that the accused is not guilty of such an offence”. This difference in language occurs
on account of the stage at which the two sub-sections operate. During the initial investigation
of a case in order to confine a person in detention, there should only appear reasonable grounds
for believing that he has been guilty of an offence punishable with death or imprisonment for
life. Whereas after submission of charge-sheet or during trial for such an offence the Court has
an opportunity to form somewhat clear opinion as to whether there are reasonable grounds for
believing that the accused is not guilty of such an offence. At that stage the degree of certainty
of opinion in that behalf is more after the trial is over and judgment is deferred than at a pretrial stage even after the charge-sheet. There is a noticeable trend in the above provisions of law
that even in case of such non-bailable offences a person need not be detained in custody for any
period more than it is absolutely necessary, if there are no reasonable grounds for believing that
he is guilty of such an offence. There will be, however, certain overriding considerations to
which we shall refer hereafter. Whenever a person is arrested by the police for such an offence,
there should be materials produced before the Court to come to a conclusion as to the nature of
the case he is involved in or he is suspected of. If at that stage from the materials available there
appear reasonable grounds for believing that the person has been guilty of an offence punishable
with death or imprisonment for life, the Court has no other option than to commit him to
custody. At that stage, the Court is concerned with the existence of the materials against the
accused and not as to whether those materials are credible or not on the merits.
22. In other non-bailable cases the Court will exercise its judicial discretion in favour of
granting bail subject to sub-section (3) of Section 437, Cr.P.C if it deems necessary to act under
it. Unless exceptional circumstances are brought to the notice of the Court which may defeat
proper investigation and a fair trial, the Court will not decline to grant bail to a person who is
not accused of an offence punishable with death or imprisonment for life. It is also clear that
when an accused is brought before the Court of a Magistrate with the allegation against him of
an offence punishable with death or imprisonment for life, he has ordinarily no option in the
matter but to refuse bail subject, however, to the first proviso to Section 437(1), Cr.P.C and in
a case where the Magistrate entertains a reasonable belief on the materials that the accused has
not been guilty of such an offence. This will, however, be an extraordinary occasion since there
will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of
commission by the person of such an offence.
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23. By an amendment in 1955 in Section 497, Cr.P.C of the old Code the words “or
suspected of the commission of were for the first time introduced. These words were continued
in the new Code in Section 437(1), Cr.P.C. It is difficult to conceive how if a police officer
arrests a person on a reasonable suspicion of commission of an offence punishable with death
or imprisonment for life (Section 41, Cr.P.C of the new Code) and forwards him to a Magistrate
[Section 167(1), Cr.P.C of the new Code] the Magistrate at that stage will have reasons to hold
that there are no reasonable grounds for believing that he has not been guilty of such an offence.
At that stage unless the Magistrate is able to act under the proviso to Section 437(1), Cr.P.C
bail appears to be out of the question. The only limited inquiry may then relate to the materials
for the suspicion. The position will naturally change as investigation progresses and more facts
and circumstances come to light.
24. Section 439(1), Cr.P.C. of the new Code, on the other hand, confers special powers on
the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is
no ban imposed under Section 439(1), Cr.P.C against granting of bail by the High Court or the
Court of Session to persons accused of an offence punishable with death or imprisonment for
life. It is, however, legitimate to suppose that the High Court or the Court of Session will be
approached by an accused only after he has failed before the Magistrate and after the
investigation has progressed throwing light on the evidence and circumstances implicating the
accused. Even so, the High Court or the Court of Session will have to exercise its judicial
discretion in considering the question of granting of bail under Section 439(1), Cr.P.C. of the
new Code. The over-riding considerations in granting bail to which we adverted to earlier and
which are common both in the case of Section 437(1) and Section 439(1), Cr.P.C of the new
Code are the nature and gravity of the circumstances in which the offence is committed; the
position and the status of the accused with reference to the victim and the witnesses; the
likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own
life being faced with a grim prospect of possible conviction in the case; of tampering with
witnesses; the history of the case as well as of its investigation and other relevant grounds
which, in view of so many valuable factors, cannot be exhaustively set out.
25. The question of cancellation of bail under Section 439(2), Cr.P.C of the new Code is
certainly different from admission to bail under Section 439(1), Cr.P.C The decisions of the
various High Courts cited before us are mainly with regard to the admission to bail by the High
Court under Section 498, Cr.P.C (old). Power of the High Court or of the Sessions Judge to
admit persons to bail under Section 498, Cr.P.C (old) was always held to be wide without any
express limitations in law. In considering the question of bail justice to both sides governs the
judicious exercise of the Court’s judicial discretion. The only authority cited before us where
this Court cancelled bail granted by the High Court is that of The State v. Captain Jagjit Singh
[AIR 1962 SC 253]. The Captain was prosecuted along with others for conspiracy and also
under Sections 3 and 5 of the Indian Official Secrets Act, 1923 for passing on official secrets
to a foreign agency. This Court found a basic error in the order of the High Court in treating the
case as falling under Section 5 of the Official Secrets Act which is a bailable offence when the
High Court ought to have proceeded on the assumption that it was under Section 3 of that Act
which is a non-bailable offence. It is because of this basic error into which the High Court felt
that this Court interfered with the order of bail granted by the High Court.
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26. In the present case the Sessions Judge having admitted the appellants to bail by
recording his reasons we will have to see whether that order was vitiated by any serious
infirmity for which it was right and proper for the High Court, in the interest of justice, to
interfere with his discretion in granting the bail.
27. Ordinarily the High Court will not exercise its discretion to interfere with an order of
bail granted by the Sessions Judge in favour of an accused.
28. We have set out above the material portions of the order of the Sessions Judge from
which it is seen that he did not take into proper account the grave apprehension of the
prosecution that there was a likelihood of the appellants tampering with the prosecution
witnesses. In the peculiar nature of the case revealed from the allegations and the position of
the appellants in relation to the eyewitnesses it was incumbent upon the Sessions Judge to give
proper weight to the serious apprehension of the prosecution with regard to tampering with, the
eyewitnesses, which was urged before him in resisting the application for bail. The matter
would have been different if there was absolutely no basis for the apprehension of the
prosecution with regard to tampering of the witnesses and the allegation rested only on a bald
statement. The manner in which the above plea was disposed of by the Sessions Judge was very
casual and even the language in the order is not clear enough to indicate what he meant by
observing that “the witnesses … themselves already tampered with their evidence by making
contradictory statements …” The learned Sessions Judge was not alive to the legal position that
there was no substantive evidence yet recorded against the accused until the eyewitnesses were
examined in the trial which was to proceed unimpeded by any vicious probability. The
witnesses stated on oath under Section 164, Cr.P.C that they had made the earlier statements
due to pressurisation by some of the appellants. Where the truth lies will be determined at the
trial. The High Court took note of this serious infirmity of approach of the Sessions Judge as
also the unwarranted manner bordering on his prematurely commenting on the merits of the
case by observing that “such deposition cannot escape a taint of unreliability in some measure
or other”. The only question which the Sessions Judge was required to consider at that stage
was whether there was prima facie case made out, as alleged, on the statements of the witnesses
and on other materials. There appeared at least nothing at that stage against the statement of
ASI Gopal Das who had made no earlier contradictory statement. “The taint of unreliability”
could not be attached to his statement even for the reason given by the learned Sessions Judge.
Whether his evidence will ultimately be held to be trustworthy will be an issue at the stage of
trial. In considering the question of bail of an accused in a non-bailable offence punishable with
death or imprisonment for life, it is necessary for the Court to consider whether the evidence
discloses a prima facie case to warrant his detention in jail besides the other relevant factors
referred to above. As a link in the chain of criminal conspiracy the prosecution is also relying
on the conduct of some of the appellants in taking Sunder out of police lockup for making what
is called a false discovery and it is but fair that the Panch witness in that behalf be not allowed
to be got at.
29. We may repeat the two paramount considerations, viz. likelihood of the accused fleeing
from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the
case in a Court of Justice. It is essential that due and proper weight should be bestowed on these
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two factors apart from others. There cannot be an inexorable formula in the matter of granting
bail. The facts and circumstances of each case will govern the exercise of judicial discretion in
granting or cancelling bail.
30. In dealing with the question of bail under Section 498 of the old Code under which the
High Court in that case had admitted the accused to bail, this Court in The State v. Captain
Jagjit Singh, while setting aside the order of the High Court granting bail, made certain general
observations with regard to the principles that should govern in granting bail in a non-bailable
case as follows:
It (the High Court) should then have taken into account the various considerations, such
as. nature and seriousness of the offence, the character of the evidence, circumstances
which are peculiar to the accused, a reasonable possibility of the presence of the accused
not being secured at the trial, reasonable apprehension of witnesses being tampered with,
the larger interests of the public or the State, and similar other considerations, which arise
when a Court is asked for bail in a non-bailable offence. It is true that under Section 498
of the Code of Criminal Procedure, the powers of the High Court in the matter of granting
bail are very wide; even so where the offence is non-bailable, various considerations such
as those indicated above have to be taken into account before bail is granted, in a nonbailable offence.
We are of the opinion that the above observations equally apply to a case under Section 439 of
the new Code and the legal position is not different under the new Code.
31. We are satisfied that the High Court has correctly appreciated the entire position and
the Sessions Judge did not at the stage the case was before him. We will not, therefore, be
justified under Article 136 of the Constitution in interfering with the discretion exercised by the
High Court in cancelling the bail of the appellants in this case.
32. Before closing, we should, however, make certain things clear. We find that the case is
now before the committing Magistrate. We are also informed that all documents have been
furnished to the accused under Section 207, Cr.P.C. of the new Code. The Magistrate will,
therefore, without loss of further time pass an appropriate order under Section 209, Cr.P.C The
Court of Session will, thereafter, commence trial at an early date and examine all the eyewitnesses first and such other material witnesses thereafter as may be produced by the
prosecution as early as possible. Trial should proceed de die in diem as far as practicable at least
so far as the eyewitnesses and the above referred to Panch witness are concerned. We have to
make this order as both Mr Mulla and Mr Mukherjee submitted that trial will take a long time
as the witnesses cited in the charge-sheet are more than 200 and it will be a punishment to keep
the appellants in detention pending the trial. We have, therefore, thought it fit to make the above
observation to which the learned Additional Solicitor General had readily and very fairly
agreed. After the statements of the eye-witnesses and the said Panch witness have been
recorded, it will be open to the accused to move the Sessions Judge for admitting them to bail,
pending further hearing. The appeals are dismissed with the above observations. The stay orders
stand vacated
