Sher Singh vs State of Punjab

A.P. Chowdhri, J.

Facts necessary for the disposal of this petition under section 439 of the Code of Criminal Procedure are that in connection with FIR No. 122 dated December 30, 1986, U 302/201/404/148/149/379 of the Indian Penal Code, Police Station Mandi Gobindgarh, Sher Singh, one of the accused, was granted pardon. He moved the trial Court on two occasions for bail but his applications were rejected. He also made an unsuccessful attempt to secure bail from this Court in Cri. Misc. No. 10706M of 1990.

It has been stated that all the accused in the aforesaid case are on bail. The statement of the approver as PW 1 was concluded in the trial Court on August 31, 1989. The case is still pending at the stage of prosecution evidence and long adjournments are being granted and at the speed at which the trial is progressing, it will take considerably long period to conclude the trial. Already the petitioner had been in custody for over 31/2 years. Learned counsel for the petitioner has contended that in the circumstances of the case the petitioner may be enlarged on bail in exercise of the inherent powers of this Court under section 482 of the Code of Criminal Procedure to prevent failure of justice in the case of the petitioner. He seeks support from the law laid down in a Full Bench decision in Prem Chand v. The State, 1985(2) Recent Criminal Reports 386. The learned Judges of the Full Bench took the view that after the evidence of the approver had been recorded, no useful purpose was served in his further detention in the jail and bail can be granted in exercise of the inherent powers of the High Court. The learned Judges took the view that the provision that bail shall not be granted to the approver till the conclusion of trial was intended for the security of the approve over himself and there was no reason to suppose that machinery of law and order would not be able to give the necessary protection to the approver in the event of his release on bail.

The contention appears to have an appealing simplicity. I am, however, bound by a Division Bench decision of this Court in A.L. Mehra v. The State, AIR 1958 Punjab 72, in which it was held the provisions relating to bail contained in Sections 497 and 498 of the old Code (Sections 437 and 439 of the Present Code) did not override the provisions of Subsection (3) of Section 337, analogous to Section 306 of the new Code. It was not within the competence of the Court to admit an approver to bail when the law declares in unambiguous language that an approver shall not be released until the decision of the case. It was further held in A.L. Mehra''s case (supra) that the High Court has no inherent power to admit an approver to bail even if he is able to produce facts at the hearing sufficient to entitle him to bail. The view taken by the Bench was that inherent powers, if any, had been expressly taken away by the enactment of subsection (3) of Section 337 analogous to Section 304(4)(b)(b)of the Act of 1973. Therefore, there is no question of the grant of bail to the petitioner until the termination of the trial.

It may, however, be observed that while disposing of Cri. Misc. No. 10706M of 1990, S.S. Grewal, J had directed that the trial shall be expedited. The said direction does not appear to have had the desired effect. In order to avoid further hardship to the petitioner, it is directed that the trial shall be conclude as far as possible within the next three months. A copy of this order be got noted from the Presiding Officer of the Court where the case in under trial. On the disposal of the case, how shall send a brief report to the Court with regard to the compliance of this order. The petition is disposed of with these observations.

JUDGMENT accordingly