Narainasawmy Naicken and Another vs Emperor

This is an application for bail. The petitioners were arrested by the Police u/s 151, Criminal Procedure Code, on the ground that the Police

apprehended that they were about to commit house-breaking and theft. The petitioners were produced before the Sub-Magistrate of Udumalpet.

He was of opinion that proceedings should be instituted against the petitioners u/s 107 of the Criminal Procedure Code to take security from them

for keeping the peace and sent them up to the Joint Magistrate of Pollachi. The Joint Magistrate, before whom proceedings u/s 107 are pending,

considered it necessary to detain them in custody pending the proceedings, and he rejected their application to release them on bail. ''I he Sessions

Court of Coimbatore also dismissed an application made to it for bail. It is contended before us that the Joint Magistrate was bound to release the

petitioners on bail and that he had no discretion to refuse to do so, It is also urged that if he had such discretion, the circumstances of the case did

not justify his refusal of bail. The Joint Magistrate has given very good reasons for his opinion that it was necessary to detain the petitioners in

custody until the completion of the inquiry u/s 107 and the Sessions Judge has concurred in that opinion. We are unable to say that the discretion

has been exercised wrongly, if the Magistrate was not bound to discharge the petitioners on bail. The question, therefore, for our decision is

whether he was bound to do so. Mr. Rangachariar for petitioners relies on Section 496 of the Criminal Procedure Code which according to him

entitles any person, (other than a person accused of a non-bailable offence), who appears or is brought up before a Court, to be released on bail.

We agree that the petitioner would be entitled to bail under this section, if there were no other section disentitling him to it, but Section 107, Clause

(4), provides that a Magistrate before whom a person is sent under that section ""may in his discretion detain such person in custody until the

completion of inquiry hereinafter prescribed."" The petitioner in this case was admittedly a person sent under the, section to the Joint Magistrate.

The clause expressly gives power to the Magistrate to detain the person in custody until the completion of the inquiry. The contention on behalf of

the petitioner is that this provision must be taken to be qualified by Section 496. It is argued for the Crown, on the other hand, that the general

provision in Section 496 must be taken to be subject to the special provision contained in Clause (4)- of Section 107. Mr. Ranga-chariar contends

that the rule laid down in Section 496 is intended to give an absolute right of bail in all cases where an accused person is in custody, whether under

an order of Court or otherwise, but this contention appears to us to be untenable. Section 344 lays down that in cases where it becomes necessary

or advisable to postpone the commencement of or adjourn any inquiry or trial, the Court may by a warrant remand the accused, if in custody. The

explanation to the section provides that if sufficient evidence has been obtained to raise a suspicion that the accused may have committed the

offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. It will be observed that

the explanation refers to cases where further evidence may be obtained by a remand, the object of the remand being to obtain further evidence. It

cannot be held that an accused person is entitled to bail where he is remanded under this provision, for to allow bail in such a case would frustrate

the very object for which the remand is ordered by the Court. A similar observation would apparently apply where an order for remand is made

under Clause 2 of Section 107. It cannot, therefore, be held that Section 496 gives an absolute right to bail to any person who appears or is

brought up before a Court and is not charged with a non-bailable offence, but it must be read along with any other provision giving a special right

of detention to a Court, and Clause 4 of Section 107 gives'' such special power. That provision may be compared with Section 337, Clause (3),

which gives a Magistrate tendering a pardon to an approver the power to detain him in custody until the termination of the trial by the Court of

Session or High Court. The power is qualified by restricting it to cases where an approver is not on bail, but no such qualification is made in

Section 107. It is, no doubt, true that a person charged with a non-bailable offence is, except in cases falling within Sections 334 and 167, entitled

to bail, but the same considerations are not necessarily applicable to the two cases. The object of detaining in custody a person charged with an

offence is generally to secure his appearance for being dealt with according to law on the charge made against him, and the taking of bail would

secure that object; bat in cases of proceedings u/s 107 taken for the purpose of preventing a person from committing a breach of the peace, the

Legislature may have regarded it as necessary to take steps to prevent him from doing so before the Magistrate decides whether it is necessary to

take security from him. This object would not be secured by merely securing his appearance at the inquiry to be made under the section There may

be cases where a person charged u/s 107 may appear to be so dangerous a character that it would be desirable to detain him in custody until the

inquiry against him is completed. Mr. Rangachariar points out that no provision for such detention is made, where a person charged u/s 107 is not

sent up to the inquiring Magistrate by another Magistrate, but the inquiring Magistrate himself orders the arrest of the person charged. It is, no

doubt, true that Section 114 only empowers the Magistrate to order the arrest of the person concerned, and does not provide that he may detain

him in custody until the completion of the enquiry; but assuming that a person so arrested is entitled to be released on bail u/s 496, we do not think

that this anomaly is sufficient to justify us in not giving effect to the clear words of Section 107, Clause (4), which entitles the Magistrate to detain

the person concerned in custody in cases to which that clause is applicable. The question is not covered by any previous decision. It was left

expressly undecided in Chidambaram Pillay v. Emperor 31 M.P 315 : 3 M.L.T. 311 : 7 Cri. L.J. 360. In Mewa Lal Thakur v. Emperor 11

C.W.N. 415 : 5 Cri.L.J. 194 all that was held was that bail cannot be demanded from a person against whom proceedings u/s 107 are

contemplated but no proceedings have been drawn up or issued. In Raghunandan Parshad v. Emperor 33 C.P 80 : 8 C.W.N. 779 : 1 Cri. L.J.

775 the Calcutta High Court held that, except in the special circumstances referred to in Clauses 3 and 4 of Section 107 and which were

admittedly not applicable to that case, the law did not empower a Magistrate to detain a person in custody until the completion of the inquiry and

that the Magistrate was bound to grant bail. On the whole, we are of opinion that in this case the Joint Magistrate had the right to refuse to enlarge

the petitioner on bail and we, therefore, dismiss this petition.