Matia Chalan and Others vs State of Orissa

S.K. Ray, C.J.—This is an application by four Petitioners for bail u/s 482 read with Section 439, Code of Criminal Procedure. They are accused of offences u/s 302/307/34, Indian Penal Code which are said to have been committed on 23-6-1977. F. I. R. was lodged on the following day and these Petitioners were apprehended being suspected of commission of the aforesaid non-bailable offences. As no charge-sheet was submitted u/s 173, Code of Criminal Procedure within 60 days of their arrest by the police, they were released on ball under the provisions of Section 167(2) proviso (a) Code of Criminal Procedure by order of the Magistrate dated 17-9-1977.

After completion of the Investigation, the police submitted charge-sheet on 31-1-1978 accompanied with all documents or relevant extracts thereof on which the prosecution proposed to rely, other than those already sent to the Magistrate during investigation and statements recorded u/s 161 of all the persons whom the prosecution proposed to examine as witnesses. Copies of police papers were also supplied to the defence counsel in Court on 13-2-1978. A petition for bail on behalf of the Petitioners and a petition for cancellation of bail by Assistant Public Prosecutor were filed that day.

It appearing to the Magistrate that the offences with which the Petitioners were charged were triable exclusively by the Court of Sessions in pursuant to the provisions of Section 209, Code of Criminal Procedure, committed their to the Court of Session on 13-2-1978, cancelled the bail granted earlier u/s 167(2) by exercising his power u/s 437(5), Code of Criminal Procedure and remanded them to the jail custody during and until the conclusion of the trial in the Court of Sessions. The Petitioners, therefore, filed a petition for bail before the Sessions Judge, Bolangir which was later converted to a petition of appeal against the order of the S D. J. M. cancelling bail. The Sessions Judge not only rejected the appeal petition but even considering the prayer for bail independently otherwise than by way of appeal refused the same.

The Petitioners have thereupon filed this application in this Court for bail. The principal contention of the learned Counsel for the Petitioners is that when the Petitioners have been released under the proviso to Section 167(2), Code of Criminal Procedure, that bail order cannot be withdrawn or cancelled, unless there are allegations of misconduct or misuse of the terms of the bail bond. To enable a Magistrate to cancel bail under the provisions of Section 437(5), be must come to the conclusion from the materials collected after the chalan is filed that there are sufficient grounds to believe that the accused had committed a non-bailable offence and further that it was necessary that they should be arrested and committed to custody. Secondly, it is alternatively contended that considering all the materials collected by the police, the nature and gravity of the offences with which they are charged, the position and status of the accused with reference to the victim and the witnesses, the likelihood of the accused fleeing from justice, or of repeating the offences, or jeo- pardising his own life being faced with a grim prospect of possible conviction in the case, or of tampering with witnesses, this is a fit case where bail should be granted.

To determine the first contention it is necessary to set out the relevant provisions of the Code of Criminal Procedure, namely, Section 167(2), 209 and 437(1), (2) and (5).

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(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, athorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction

Provided that -

(a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise to detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail; and every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;

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

(a) commit the case to the Court of Session;

(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) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence,;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session.

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(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 High Court or Court of Session, he may be released on bail, but he shall not be so released if

there appear reasonable grounds for believing that be has been guilty of an offence punishable with death or imprisonment for life.

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail; Provided further 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 en titled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

(2) If it appears to such officer or Court at any stage of the investigation inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

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(5) Any Court which has released a person on hail under Sub-section (1) or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

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Proviso (a) to Sub-section (2) of Section 167, Code of Criminal Procedure makes it incumbent on the Magistrate to release the accused on bail on expiry of 60th day of his detention in custody under that section, if the latter is prepared to and does furnish bail. Such release of the accused is obviously not after considering the merits of the materials collected by the police. The Magistrate has no occasion to consider such materials. According to this proviso every person released on bail under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter. Thus the release of the accused on bail shall be deemed to be either under Sub-section (1) or Sub-section (2) of Section 437. These two Sub-sections deal with the power of a Magistrate to grant bail in cases of non-bailable offences and the limitations upon such power. If some materials have been produced by the police before the Magistrate without filing the chalan at the time of the release of the accused, under proviso (a) to Section 167(2) such release may be considered to be one under Sub-section (1) of Section 437 if it appears to the Magistrate that there are no reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, and it would be considered to be one under Sub-section (2) if it appears to the Magistrate that there are no reasonable grounds for believing that the accused has committed a non-bailable offence but that there are sufficient grounds for further enquiry. However, there are no data on record to conclusively determine whether the release u/s 167(2) would be deemed to be one either under Sub-section (1) or Sub-section (2) of Section 437. The inconclusiveness of this aspect of the matter would, however, have no relevancy bearing on construction of Sub-section (5) of Section 437 pursuant to which the Magistrate has directed the arrest and remand of the Petitioners read with Section 209. On a plain reading of Sub-section (5) of Section 437 it is reasonably clear that the Magistrate has jurisdiction to direct an accused to be arrested and committed to custody if he considers it necessary so to do. Reading that provision along with Section 209 it is further clear that after reaching satisfaction that the offence with which the accused is charged is triable exclusively by the Court of Session and is punishable either with death or imprisonment for life, the Magistrate, while committing the case to the Court of Session, is bound to remand the accused to custody during and until the conclusion of the trial in the Sessions Court, subject, however, to the provisions of Code of Criminal Procedure relating to bail, that is to say, subject to the provisions of Code of Criminal Procedure other than Section 437 under which the accused may be released on bail either by Sessions Court or High Court. He cannot remand the accused on bail, granted by him under Sub-sections (1) and (2) of Section 437, to custody unless he cancels the bail. The necessity to cancel bail under Sub-section (5) arises on account of various exigencies. It may arise when the materials collected by the police present reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life in which case the law is mandatory that the accused shall not be released on bail. It may arise when the Magistrate decides to commit the case to the Court of Session when he is bound, under la w, to remand the accused to custody. It may also arise If there is credible evidence of the accused on bail tampering with evidence or that his being at large is not 10 the interests of justice or fair trial or on other grounds which are not possible to exhaustively enumerate. In the instant case when the Magistrate was satisfied on a consideration of the police report and accompanying materials that the offences with which the Petitioners were charged were triable exclusively by the Court of Session, he is bound to commit the case to the Court of Session after performing preliminary functions, like cancelling bail and remanding the accused to custody or after granting them bail. It is at that stage he has a duty to consider whether the accused should be allowed to continue on same bail to which they were admitted u/s 167(2), Code of Criminal Procedure or to be granted fresh bailor bail is to be cancelled and the accused be taken Into custody. His active consideration in this regard must necessarily be directed to materials collected up to that date. A perusal of the case diary shows that more numerous materials had been collected by the time of filing the charge-sheet then were existing at the time of granting statutory bail u/s 167(2), Code of Criminal Procedure. If on consideration of all materials gathered up to the time of filing the chalan the Magistrate considers it necessary to do so, he may cancel the bail and remand the accused to custody while committing the case to the Court of Session. The learned Counsel for the Petitioners wants to give a restricted meaning to the expression ''if it considers it necessary so to do by saying that such necessity must arise only on the basis of allegation; of misconduct or misuse of the terms of the bail bond like tampering of evidence or that there a reasonable apprehension of the accused jumping his bailor that his further continuance on bail is not conducive to the fair trial and the like. His further contention, relying upon the decision of the Supreme Court in Bashir v. State of Haryana AIR 1972 S.C. 55, is that the Magistrate''s conclusion that there are reasonable grounds for believing that the accused have been guilty of offences punishable with death or imprisonment for life must be based on materials which have been collected or come into existence after the chalan is filed, and not on materials collected before its filing. He relies for this upon the following passage in Bashir''s case:

The Court before directing the arrest of the accused and committing them to custody should consider it necessary to do so u/s 437(5). This may be done by the Court coming to the conclusion that after the chalan bad been filed there are sufficient grounds that the accused bad committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice, But it is necessary that the Court should proceed on the basis that he has been deemed to have been released under Sections 437(1) and (2):

This passage does not throw any light on the interpretation to be given to the expression ''if it considers it necessary so to do. It also does not, to our mind, specify that what the Magistrate is to consider is only ground based upon the materials collected after the chalan has been filed. All that this passage means is that after the chalan is filed the Court must take into consideration all the materials produced along with the chalan, otherwise it would be unauthorisedly limiting the power of the Magistrate u/s 437(5) which is unrestricted as to the time or materials with respect to which such power is to be exercised, if that expression is attributed the meaning the Petitioners'' learned Counsel wants to do, There could obviously be no material collected after the chalan is filed if the Magistrate is to consider whether to cancel the bailor not on the date of filing of the chalan. A question may arise as to whether materials collected before the release of the accused u/s 167(2) could be reviewed in conjunction with the materials collected thereafter. Though we are of tentatively of opinion that all materials collected before and after should be considered cumulatively, yet such a case does not arise for decision in this case, The meaning of the aforesaid extracted passel from Bashir''s case1is made clear by another passage occurring before it in the judgment which reads,

As the provisions of Section 437(1), (2) and (5) are applicable to a person who has been released u/s 167(2) the mere effect that subsequent to his release a challan has been filed is not sufficient to commit him to custody.

In context of this, what their Lordships meant was that mere filing of a chalan would not entitle the Magistrate to cancel bail, but a consideration of totality of materials produced by the date of such filing must disclose sufficient grounds for believing that the accused had committed a non-bailable offence. If the Magistrate is satisfied on the basis of such ''other materials'' that the accused has committed a non-bailable offence punishable with death or imprisonment for life, he must necessarily cancel the statutory bail u/s 167(2) as it would be acting against the legal ban imposed on him u/s 437(1), Code of Criminal Procedure, unless the case falls within the ambit of its proviso, to allow him to continue on the same bail. Bashir''s case1, to our mind, does not support the contention of the Petitioner''s learned Counsel.

The Supreme Court in State (Delhi Administration) Vs. Sanjay Gandhi, , has observed,

Cancellation of bail necessarily involves the review of a decision already made and can by any large be permitted only if, by reason of supervening circumstances, it would ''be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial.

This observation applies to normal cases of cancellation of bail where the accused has been admitted to bail earlier on a consideration of the merits of the case, either by the Magistrate u/s 437(1) or (2) or by the Sessions Judge or the High Court u/s 439, Code of Criminal Procedure. In cases of release of an accused u/s 167(2) no decision is rendered for enlarging the accused on bail and, therefore, the normal rule envisaged in the extracted passage of the Supreme Court is inapplicable. It would apply where the accused has been admitted to bail either u/s 437(1) or u/s 439 and such bail is sought to be cancelled u/s 437(5) or u/s 439(2), Code of Criminal Procedure. The process of investigation is a long drawn process. It starts with the lodging of F.I.R. with the police and ends with the filing of the final form or charge-sheet. Grant of bail u/s 437(1) or 439 (1) is at one stage of investigation and cancellation of bail u/s 437(5) or 439(2) is at another stage of investigation. The position changes as investigation progresses land more circumstances come to light. The overriding considerations in granting bail under Sub-section (1) of Section 437 or Section 439(1), Code of Criminal Procedure are, inter alia, the nature and gravity of the circumstances in which the offence is committed, the likelihood of the accused fleeing from justice and his tampering with prosecution evidence relating to ensuring a fair trial in a Court of justice. These considerations can arise when materials are produced. There can be, therefore, no controversy that where the accused has been admitted to bail u/s 437(1) or (2) and 439(1), Code of Criminal Procedure it cannot be cancelled unless new circumstances come into existence warranting such cancellation. This is what the Supreme Court has said. Applying the same principle to cases of statutory bail u/s 167(2), Code of Criminal Procedure it will be open to the Magistrate to cancel the bail u/s 437(5), Code of Criminal Procedure by reason of supervening circumstances coming into existence subsequently. The Magistrate had jurisdiction power, in the instant case, to cancel bail under Sub-section (5) of Section 437 where the original bail was not granted on consideration of the merits of the case, but on the basis of mandate of the statute on account of non-filing of the charge-sheet within sixty days of the apprehension.

For these reasons we are of opinion that the first contention must fail.

The alternative prayer for admitting the Petitioners to bail has been made u/s 439 read with Section 482, Code of Criminal Procedure., So far as this Court is concerned, it is not bound by the legal ban imposed on a Magistrate acting u/s 437(1). We have, therefore, perused the records regarding the evidence collected against the Petitioners for the purpose of determining whether it IS a fit case to enlarge all the Petitioners on bail pending sessions trial. We find that there are eye-witnesses of commission of murder against the first three Petitioners, namely, Matia Chalan, Chakrabag Chalan and Kartikeswar Chalan. The evidence is that two of them pinned down the deceased on the ground while the third one gave the fatal stroke with the sharp end of the-axe on the head of the deceased. The first three Petitioners have been named in the F.I.R. So far as Petitioner No. 4 is concerned he has not been named so as one of the assailants of the deceased. In that view of the matter, we are inclined to grant bail to Petitioner No. 4, Ghasiram Chalan. His petition is, therefore, allowed and he, namely, Ghasiram Chalan be released on bail of Rs. 5,000/- with two sureties for the like amount to the satisfaction of the Sessions Judge, Balangir. The petition for bail of first three, namely, Matia Chalan, Chakrabag Chalan and Kartikeswar Chalan is rejected.

J.K. Mohanty, J.

I agree.

Ordered accordingly.