Bhondal vs State

G.D. Srivastava, J.—Applicant Bhondal has prayed that he may be released on bail during the trial which he is standing in the Court of Sessions under Sections 302, 307, 147 IPC and Section 5 of the Explosives Act. The learned Counsel for the applicant has prayed for bail on a technical ground which raises a point of law of some importance. It appears that the applicant was released on bail under the provisions of Section 167 Code of Criminal Procedure on 23-7-1974 and by an order dated 9-11-1976, the Chief Judicial Magistrate, Allahabad committed the applicant and two others to stand their trial in the Court of Sessions. While committing the applicant, the Chief Judicial Magistrate remanded the applicant to custody until and during his trial before the Court of Sessions. A copy of the committing order is Annexure I to the petition. The relevant provisions with regard to commitment is to be found in section 209 Code of Criminal Procedure and the relevant portion runs as follows :-

When in a case instituted on a police report or otherwise, the accused appears or is brought before he Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall-

(a) Commit the case to the Court of Sessions ;

(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial ;

(c) ...

Now the argument of the learned Counsel for the applicant was that if bail had once been granted, it could not have been cancelled by the committing Magistrate merely because the case was being committed. His contention was that bail could be cancelled only for valid reasons which were settled, namely, chances of jumping bail, threatening or inducing of witnesses etc. Particular reference was made to the words ''subject to the provisions of this Code relating to bail''. It was contended that these words indicated that provisions of the Code relating to bail should be followed even in cases where bail is going to be cancelled at the time of commitment.

It seems to be an admitted position that in the instant case, bail was granted to the applicant not on merits but on a technical ground, that is to say, u/s 167(2) Code of Criminal Procedure. I, therefore, need not dilate on the question whether bail granted on merits can also be cancelled at the time of commitment without any valid reason or not. But in the instant case, the question is whether bail granted on a technical ground could be cancelled at the time of commitment without assigning any reason. The argument of the learned Counsel for the applicant was that/in view of the above mentioned provisions contained in Section 209(6), cancellation of bail at the time of commitment was also governed by the provisions of the Code relating to bail and, therefore, bail granted even on technical ground could not have been cancelled without assigning any valid reason. I have given my anxious consideration to the legal position and, in my opinion, the contention of the learned Counsel for the applicant is not acceptable. If bail has been granted on merits, it is certainly desirable that it should not be cancelled except for valid reasons and this is obviously in consonance with the priniciples of natural justice. But if bail has been granted only on technical ground, these considerations should not apply. This question arose in two reported cases-one is Sheobaran Singh v. State of U.P. 1975 AWC 123 in which Hon''ble K.N. Seth, J. observed that Section 167 Code of Criminal Procedure cannot be interpreted to mean that the order of bail is so sacrosanct that it could not be cancelled and that it would be effective during the trial before the Court of Sessions. A similar view was expressed by Hon''ble Mr. Justice H. N. Kapoor in a case reported as Prem Charan v. State of U.P. 1976 AWC 364 . In Prem Charan''s case, bail had been granted on a technical ground but in the bail order an option was given to the Magistrate to cancel the bail and remand the accused in custody u/s 209 Code of Criminal Procedure. The learned Counsel for the applicant, therefore, wanted to draw a distinction between the instant case and the case of Prem Charan inasmuch as in Prem Charan''s case, an option had been given to the Magistrate to cancel the bail at the time of commitment. In my opinion, this distinction is more apparent rather than real. If the interpretation of Section 209 Code of Criminal Procedure is that bail can be cancelled at the time of commitment only for valid reasons even if it had been granted on technical ground, such an option given to the Magistrate will not be of any help. If the Magistrate does not possess such a power that power cannot be conferred on him by the Sessions Judge. On the other hand, there is clear observation in Prem Charan''s case that bail granted by the Magistrate on technical ground u/s 167(2) Code of Criminal Procedure can be terminated while committing the accused u/s 209 Code of Criminal Procedure. Reliance was placed on the view of Mr. Justice Hari Swarup expressed in the case of Ram Murti and Another Vs. State, . This was a case in which bail granted on a technical ground was cancelled by the Sessions Judge. The learned Judge observed that bail granted even on technical ground can be cancelled only for valid reasons. In this case, however, the learned judge was concerned with the question whether bail granted on technical ground can be cancelled by the Sessions Judge. In other words, it was not a case of cancellation of bail by the Magistrate at the time of commitment. Thus really speaking, the decision in Ram Murti''s case is not in conflict with the decision in the above mentioned two cases. The power given by the Code for cancellation of bail at the time of commitment is to be exercised only by the committing Magistrate and that too at the time of commitment. The Sessions Judge, of course, has no power to cancel the bail after the case has been committed. The Sessions Judge can cancel the bail only under the general provisions contained in Section 437(5) Code of Criminal Procedure. Thus the case of Ram Murti does not decide that the committing Magistrate is not empowered to cancel the bail at the time of commitment even if it has been granted on technical ground.

Another aspect of the matter is that the general power to cancel bail has been incorporated in Section 437(5) Code of Criminal Procedure and this power has, of course, to be exercised according to well settled principles. But the legislature has incorporated another provision for cancellation of bail at the time of commitment which is embodied in Section 209 Code of Criminal Procedure If a bail granted even on technical ground cannot be cancelled except for valid reasons, the provisions of Section 209 Code of Criminal Procedure in that regard would become wholly redundant, obviously because the cancellation of bail on valid grounds is already provided in Section 437(5) Code of Criminal Procedure and there was no need of making a separate provision for cancellation of bail at the time of commitment u/s 209 Code of Criminal Procedure. Thus the legislature did contemplate some cases in which bail may be cancelled for the mere reason that the accused was going to be committed to the Court of Sessions,

Yet another aspect of the matter should also be not lost sight of. The policy of the new Code of Criminal Procedure in regard to the matters of commitment is that the case should be committed to the Court of Sessions as soon as possible and that is why the inquiry procedure of the committing Magistrate has been dispensed with. If before commitment, it is brought to the notice of the committing Magistrate that bail granted to an accused even on technical ground is being abused, the Magistrate will have either to ignore this information and commit the accused or he will have to make an inquiry regarding the allegations of abusing of this liberty. The Magistrate shall not be able to cancel the bail at the time of commitment unless he comes to the conclusion that the accused is abusing the bail. Obviously, therefore, for making such an inquiry, some time will be required and commitment will not be possible without completing that inquiry. In my opinion, the words ''subject to the provisions of this Code relating to bail'' should be interpreted in such a way as not to come in conflict with the aforesaid underlying policy of the Act. Having thus considered all the relevant provisions and the underlying policy of the new Code of Criminal Procedure, I am of the opinion that bail granted by the Magistrate on technical ground can be cancelled by him at the time of commitment without assigning any reasons subject, of course, to the established convention that bail granted by a superior Court shall not be cancelled by the Magistrate at the time of commitment unless it has been abused.

In the result, the application is rejected.