Dayanidhi Sarangi and Others vs State of Orissa

K.B. Panda, J.—The sole point for consideration in this revision is: can a Magistrate who has, in a proceeding, granted bail to the accused persons charged of bailable offences in a subsequent stage of the proceeding, due to some developments, cancel the same and remand the accused persons to jail custody?

On behalf of the Petitioners, eight in number, it was contended by Mr. B.L.N. Swamy, that the trying Magistrate is incompetent to do so, but It is only the Sessions Judge and the High Court, which can exercise that power u/s 439(2), Code of Criminal Procedure 1973, while the learned Additional Standing Counsel contended that every Court releasing any accused on bail has inherent power of cancelling it, if circumstances so demand. A series of decisions have been cited by either side in support of its stand which are dealt with hereinbelow.

In Lachman Singh and Others Vs. Surendra Bahadur Singha and Others , an accused was let off on bail by City Magistrate in a bailable offence. On Police report, the District Magistrate cancelled the bail and instructed the police to obtain warrant of arrest for the accused. It was held that the order of the District Magistrate who was not in seisin of the case was without jurisdiction and in disregard of the law. It did not empower even the trying magistrate to cancel the bail in a case in which the accused was as a matter of right, entitled to be on bail. The utmost which the Court before which the case was pending could order was to enhance the amount of bail. Evidently this supports the Petitioner''s contention. K. Bomanji Wookerji v. State of Mysore AIR 1955 Mys. 96, lays down that.

There is no provision for cancellation of bail by the sessions Judge when the offence alleged is bailable and the bail is granted u/s 496 and the bail amount is reduced by Sessions Judge u/s 498. An order cancelling a bail is permissible u/s 561-A of the Code. But Section 561-A cannot be invoked in such a case as it relates only to the powers of the High Court and not other Courts. Where, therefore, it is alleged that the accused by his absence is hindering the case from being proceeded with it is open to the trial magistrate to apply the provisions of Section 82 of the Code.

Talab Haji Hussain v. Madhukar Purshottam Monddar and Anr. A.I.R 1958 S.C. 37 lays down that -

Under Section 561-A the High Court has inherent power to cancel the bail granted to a person accused of a bailable offence and in a proper case, such power can be exercised in the interests of justice.

Retail Bhanji Mithani v. Asst. Collector of Customs, Bombay and Anr. AIR 1976 S.C. 1938, lays down thus:

The Code of Criminal Procedure makes no express provision for the cancellation of a bail granted u/s 496. Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond the High Court has inherent power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This overriding inherent power can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody. Such a power exists and is preserved by Section 561-A. The person so committed to custody cannot ask for his release on bail u/s 496 but the High Court may by a subsequent order admit him to bail again. (Distinction between grant of bail in non-bailable offences and that in bailable offences pointed out).

In the instant case, the facts are that G.R. Case No. 1290 of 1974 was instituted against the accused persons on charges under Sections 147, 324/149 and 323/149, Indian Penal Code which are bailable offences. The date of occurrence is 8-8-1974. In ordinary course the accused were enlarged on bail. Subsequently the informant Brundaban Sarangi on 26-7-1976 filed a petition for cancellation of bail bonds of the accused persons alleging that they were threatening the witnesses for which they are unable to appear in the Court and depose in his favour. Three prosecution witnesses, namely Jadu Mallik, Hari Sarangi and Dijabar Das filed three affidavits dated 17-9-1976 alleging that the Petitioners held a meeting in the village on 18-7-1976 and asked them not to attend Court and depose against them. They threatened the witnesses with dire consequences if they deposed in the case. The accused persons also have filed some counter affidavits to the effect that they have not threatened the witnesses as alleged by the informant. On 12-11-1976 the Sub-divisional Judicial Magistrate, Bhubaneswar allowed the petition filed by the informant and cancelled the bail bonds of the accused persons and ordered them to be remanded to jail custody. It is in this background that the present revision has been filed by the accused Petitioners.

The citations relied on by the learned Additional Standing Counsel in seriatim are Pannalal Lahoti and Ors. v. Hyderabad State A.I.R 1951 Hyd. 113, which says:

Section 561-A affirms the inherent power of the High Court and is silent as regards any such power of the Subordinate Courts. This omission does not mean that such courts cannot when necessary exercise any inherent power. According to the Hyderabad Code of Criminal Procedure no such restriction exists and it cannot be said that the Court cannot exercise its inherent powers. For every Court, whether civil or criminal must be deemed to possess, as inherent in its very Constitution all such powers as are necessary to do the right and to undo a wrong in the course of the administration of justice. Madhukar Purshottam Monddar and Anr. v. Talab Haji Hussain and Anrs. A.I.R 1958 Bom. 496, which was confirmed by the Supreme Court in Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another, , postulates thus:

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 power....

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Having provided in Section 496 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 u/s 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 of Sub-section (2) of Section 498, the important fact to remember is that (sic ?) 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.

In Panna Lal v. B.K. Sinha AIR 1167 All. 394, it is held as follows:

It may be that there is no specific provision for the cancellation of the bond and the rearrest of a person accused of a bailable offence, but that does not mean that Section 496 entitles such an accused person to be released on bail even though it may be shown that he is guilty of conduct entirely subversive of a fair trial in the Court. We do not read Section 496 as conferring on persons accused of a bailable offence such an unqualified, absolute and indefeasible right to be released on bail.

Emperor Vs. Rautmal Kanumal Marwadi, , mostly approaches the case under consideration. Here one magistrate released the accused on bail. Another magistrate to whose Court the case was transferred finding the accused tampering with the prosecution witnesses directed his re-arrest. The division Bench held that:

....every judge or magistrate trying a criminal case has inherent power to see that the trial is properly conducted and that the ends of justice are not defeated, and if facts are.... brought to its attention, which suggest that unless the person who is being tried is placed under arrest the ends of justice will be defeated the Court has inherent power to direct his arrest. In the present case the learned magistrate was satisfied that the accused person had been tampering with a prosecution witness and in order to prevent a repetition of the offence I think that the learned magistrate was entitled to direct that the accused be arrested notwithstanding the order for his release on bail. It is no answer to say as the learned Sessions Judge does that an application could be made to the sessions Court or the High Court, because those Courts might not be available in an emergency to make an immediate order. In my judgment therefore the order of the learned magistrate was right and the order made by the Sessions Judge releasing the accused on bail was wrong. We therefore, set aside the order of the learned Sessions Judge and restore the order of the Honorary First class magistrate

Accepting the views expressed in Emperor Vs. Rautmal Kanumal Marwadi, , and Madhukar Purshottam Mondkar and Another Vs. Talab Haji Hussain and Others, , I am of opinion that power is inherent in any Court and when circumstances justify Court is competent to cancel the bail which it has granted earlier and need not refer the matter either to the Sessions Judge or to the High Court for the same. In the instant case, the learned magistrate on the basis of affidavit filed held that the accused persons have forfeited the lability granted to them and has passed the impugned order. The distinction does not lie in whether a case is bailable or non-bailable. The determining feature whether the accused by his behaviour and conduct has forfeited the concession shown to him. I accept the contention advanced on behalf of the State on the basis of above analysis and authority on the point and confirm the order of cancellation of bail passed against the Petitioners. The case is of the year 1974. The learned magistrate is directed to dispose it of as early as possible.

It was contended on behalf of the Petitioners that the learned lower Court has not taken into consideration the affidavits filed by the Petitioners denying the allegations made against them. It is a question of affidavits against affidavits. If at any later .stage of the proceeding the learned magistrate is satisfied that the allegations made by the complainant against all or any of the accused persons are frivilous, it is up to him to consider the matter in the light of facts disclosed. But Since the present petition was fought out on a point of law, without bringing any distinction on facts as against each individual accused I am not inclined to go into that aspect and I leave it to the judicious discretion of the trying Court.

The petition is dismissed.

Petition dismissed.