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PETITIONER: BASHIR AND OTHERS

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT03/10/1977

BENCH: KAILASAM, P.S. BENCH: KAILASAM, P.S. FAZALALI, SYED MURTAZA

CITATION:  1978 AIR   55            1978 SCR  (1) 585  1977 SCC  (4) 410  CITATOR INFO :  RF         1986 SC2130  (31)  R          1987 SC 149  (21)

ACT: Criminal  Procedure Code 1973--Ss. 167 (2) 437 (1)  and  (5) -Grant  of ba il-Release of an accused because  challan  not filed within 60 days from arrest-Deemed bail-If bail can  be cancelled as soon as challan is filed.

HEADNOTE: The three appellants along with 8 others were prosecuted for offences  u/s. 302 read with s. 149 I.P.C. for  causing  the death  of one Sagru.  The F.I.R. was lodged on  December  2, 1975 and the three appellants and 8 others were arrested  on the same day.  Though the other 8 were released on bail, the bail  applications of the three appellants were rejected  by the Sessions Court because they were alleged to have  caused the  injuries.  The High Court also declined to  grant  them bail by an order dated February 5, 1976.  As no challan  was filed by the police in the case within 60 days from the date of  the arrest of the appellants they were released on  bail on February 23, 1976 u/s 167(2) Cr.P.C. 1973.  Subsequently, the police filed a challan and the Magistrate committed  all the eleven accused to the Sessions Court. An  application  for  cancellation  of the  bail  of  the  3 appellants was filed before the Sessions Court on the ground that  their  petitions for grant of bail  were  rejected  on merits  both  by the Sessions Court and the High  Court  and that since challenge were filed the court should cancel  the bail.   The  Sessions Judge relying on 1975 PLJ  (Cri.)  143 (Ajaib   Singh   v.   State  of  Punjab)   held   that   the considerations for grant of bail at the stage when no report U/s 173 Cr.P.C. was filed was entirely different because  if the report is not produced within 2 months, the Court has no option  but to grant bail to the accused  howsoever  heinous the nature of the offence may be.  Holding that when once  a report  under  s. 173 Cr.P.C. is filed by  the  police,  the court  has  jurisdiction to cancel the  bail,  the  Sessions Court allowed the above application and cancelled the bail. An appeal against the order of the Sessions Judge cancelling the bailwas  dismissed by the High Court. The  view  taken  by the High Court was  challenged  in  the

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appeal beforethis Court  by  special leave on  the  ground that when once the bail is grantedu/s.      1672)   Cr.P.C. it cannot be cancelled on the mere ground that  subsequently the  police had filed a challan but that the bail order  can only be cancelled under the provision of s. 437(5) Cr.P.C. Section 167(2) of the Criminal Procedure Code, 1973 empowers the Magistrate to authorise the detention of the accused  in custody  for  a term, not, exceeding 15 days in  the  whole. The  proviso,  however, provides that  no  Magistrate  shall authorise  the  detention of the accused person  in  custody under that section for a total period exceeding 60 days  and that  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 that every person released  on bail  under that section shall be deemed to be  so  released under  the  provisions of Chapter  XXXIII.   Section  437(1) provides that any person accused of or suspected of the com- mission  of any nonbailable offence may be released on  bail but  that  he  shall  not  be  released  if  there   appears reasonable grounds for believing that he has been guilty  of an  offence punishable with death or imprisonment for  life. Sub-section  (2) of s. 437 empowers the court to release  an accused  if there are not reasonable grounds  for  believing that  the  accused  has committed  a  non-bailable  offence. Section 437(5) provides that any court which has released  a person on bail under sub-s. (1 ) or sub-s. (2) might, if  it considers it necessary, so to do. direct that such person be arrested and may be committed to custody. 586 Allowing the appeal, HELD : (1) As under s. 167(2) a person who has been released on  the ground that he had been in custody for a  period  of over  60 days is deemed to be released under the  provisions of  Chapter XXXIII, his release should be considered as  one u/s  437(1)  or (2).  Section 437(5) empowers the  court  to direct  that  the person so released may be arrested  if  it considers it necessary to do so.  The powers of the court to cancel bail if it considers it necessary is preserved in was s where a person has been released on bail u/s 437(1) or (2) and these provisions are applicable to a person who has been released u/s. 167(2) [589 G-H, 590 A] (2)As  the  provisions  of  s. 437(1),  (2)  and  (5)  are applicable  to a person who has been released  u/s.  167(2), the mere fact that subsequent to his release a challan hasbeen filed  is not sufficient to commit him to custody.  In  this case the bail wascancelled   and  the   appellants   were ordered to be arrested and committed tocustody    on    the ground  that subsequently a charge sheet had been filed  and that before the appellants were directed to be released  u/s 167(2),  their  bail petitions were dismissed on  merits  by Sessions Court and the High Court. [590 B-C] (3)The  court before directing the arrest of  the  accused and committing them tocustody    should    consider    it necessary to do so u/s 437(5).  This may be done bythe court  coming to the conclusion that after the challan  ,lad been filed there are sufficient grounds that it is necessary that he should be arrested and committed to custody.  It  is necessary that the court should proceed on the basis that he has  been deemed to have been released under s.  437(1)  and (2). [590 D-E] Ram Pal Singh and Others v. State of U.P. 1976 Cr.L.J.  288, approved. The  bail u/s. 167(2) Cr.P.C. has the same incidents as  the bail  granted  Linder Chapter XXXIII and is  accordingly  to remain valid till it is cancelled, and the cancellation of a

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bail can only be on the grounds known to law and the receipt of the charge sheet in court can by itself be no ground  for cancellation of the bail. [590 F-G] (4)The cancellation of bail for the reasons stated by  the High Court is not sound. [590 H]

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION :  Criminal Appeal No.  517 of 1976. Appeal  by Special Leave from the Judgment and  Order  dated 27-8-1976  of  the Punjab & Haryana High Court  in  Criminal Misc.  No. 4090-M of 1976. S.   K. Mehta and P. N. Puri for the Appellants. H.   S. Marwah and S. N. Sachthey for the Respondent. The judgment of the Court was delivered by KAILASAM,  J.  This appeal is by special leave by the  three appellants against the judgment of the High Court of  Punjab and  Haryana  in Criminal Miscellaneous No. 4090-M  of  1976 dismissing  an  application  under  section  439,   Criminal Procedure  Code, praying that the appellants be released  on bail  during  the pendency of their trial in  a  case  under section 304 read with section 148, Indian Penal Code. The  facts  of the case are briefly as follows.   The  three appellants,  Bashir,  Kundan  and Sadie,  along  with  eight others  are being prosecuted for offences under section  302 read with section 149, section 587 347 read with section 149 and section 148 read with  section 147  Indian Penal Code, for causing the death of  one  Sagru and  grievous  and simple injuries to three  others.   While eight  others  were released or bail,  the  appellants  were refused bail as it was alleged that they caused injuries  to Sagru.   The  First Information Report of  the  offence  was lodged  on  December 2, 1975 and the  three  appellants  and eight  others  were arrested on the same  day.   Though  the other  eight  accused  were  released  on  bail,  the   bail application  of  the three appellants was  rejected  by  the Sessions  Court on December 15, 1975.  The High  Court  also declined to release them on bail by an order dated  February 5,  1976.  But as no challan was filed by the police in  the case  within sixty days from the date of the arrest  of  the appellants  they were released on bail on February 23,  1976 under  section  167(2)  of  the  Criminal  Procedure   Code. Subsequently  the  police filed challan and  the  Magistrate committed  all the eleven accused to the Sessions Court  and released them including the appellants on bail. The  complainant  filed an application, out  of  which  this appeal arises, before the Sessions Court for cancellation of the  bail to the three appellants on the ground  that  their petitions for grant of bail were rejected on merits both  by the  Sessions Court and the High Court.  The Sessions  Judge relying  on a decision of the Punjab High Court reported  in 1975  PLJ (Cr1.) 143-Ajaib Singh vs.  State  of  Junjab-held that the considerations for grant of bail at the stage  when no  report under section 173, Criminal Procedure  Code,  was filed  were entirely different because if the report is  not produced within two months, the court has no, option but  to grant  bail to the accused howsoever the heinous  nature  of the  offence may be.  Holding that when once a report  under section 173, Criminal Procedure Code, is filed by the police the  court has jurisdiction to cancel, the bail allowed  the application of the complainant and cancelled the bail. An appeal against the order of the Sessions Judge cancelling

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the bail was dismissed by the High Court.  It was  contended before the High Court that when the appellants were released under the proviso to section 167(2) of the Code of  Criminal Procedure  unless there was an allegation of  misconduct  or misuse of the terms of the bail bond by them the bail  order could  not be withdrawn.  It was further contended that  the order of bail could be, cancelled only under the  provisions of section 437(5), Criminal Procedure Code, as the order  of bail  passed  under section 167(2) is deemed to  be  a  bail order passed under Chapter XXXIII, Criminal Procedure  Code. Disagreeing  with the contention of the learned counsel  for the appellants, the High Court held as follows               "The order of bail is passed by the Magistrate               in   such   cases   only   because   of    the               technicalities in law, that is the failure  of               the  investigating  agency  to  discharge  its               duties  in  time  in  presenting  the  challan               against the accused within the period directed               by section 167, Criminal Procedure Code.  This               bail  order is not on merits of the case.   As               soon as that ground for which the court has no               option but               588               to release the accused on bail is fulfilled or               complied with by the investigating agency, the               Magistrate or the court of Session or the High               Court  can  on  that ground  cancel  the  bail               allowed   earlier.  When  such  an  order   of               cancellation  is passed it is to  be  presumed               that the court, while cancelling the bail, has               taken  into consideration the final report  of               the  police  laid against the  accused,  first               information  report, statement  under  section               161,  Criminal Procedure Code, and  the  other               material  collected by the police  during  the               investigation of the case." The view taken by the High Court is challenged in the appeal before  us.   It was submitted that when once  the  bail  is granted  under section 167(2), Criminal Procedure  Code,  it cannot be cancelled on the mere ground that subsequently the police had filed a challan but that the bail order can  only be  cancelled  under  the  provisions  of  section   437(5), Criminal Procedure Code. We will now refer to the relevant provisions of the Criminal Procedure  Code.  Section 167(2) of the  Criminal  Procedure Code, Act 2 of 1974, is as follows :--               "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, authorise 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 the detention of the  accused

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             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;" Sub-section (2) of section 167 and Proviso, (a) thereto make it clear that no Magistrate shall authorise the retention of the accused person in custody under this section for a total period  exceeding sixty days.  On the expiry of  sixty  days the accused person shall be released on 589 bail  if  he is prepared to and does furnish bail.   So  far there is no controversy.  The question arises as to what  is the  position  of the person so released when a  challan  is subsequently  filed  by the police.  The  last  sentence  in proviso  (a) is relevant.  It is "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".   Chapter XXXIII contains provisions  as  to bail  and bonds.  The relevant sub-sections (1) and  (2)  of section 437 are               "(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 he has been guilty  of  an               offence punishable with death or  imprisonment               for life               x                     x                      x               x               (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." Sub-section (1) of section 437 provides as to when bail  may be  taken  in  case of a  non-bailable  offence.   A  person accused of a non-bailable offence may be released by a court but he shall not be so released if there appear  reasonable grounds for believing that he has been guilty of an offence punishable  with  death or imprisonment for life.   The  two provisos to sub-section (1) are not material and need not be considered.   ’Sub-section (2) to section 437 provides  that if  the investigating officer or the court at any stage   of the investigation, inquiry or trial, as the case may be,  is of  opinion  that  there  are  no  reasonable  grounds   for believing  that  the accused has  committed  a  non-bailable offence,  but  there  are  sufficient  grounds  for  further inquiry  into his guilt, pending such inquiry,  the  accused shall be released on bail.  Subsection (5) to section 437 is

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important.  It provides that any Court which has released  a person  on  bail 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.   As  under section 167(2) a person who has been released on the  ground that he had been in custody for a period of over sixty  days is  deemed  to be released under the provisions  of  Chapter XXXIII,  his  release  should be  considered  as  one  under section 437(1) or (2).  Section 437(5) empowers the court to direct  that  the person so released may be arrested  if  it considers it necessary to do so.  The power of the court  to cancel  bail  if it considers it necessary is  preserved  in cases where a person 590 has  been released on bail under section 437(1) or  (2)  and these  provisions  are applicable to a person who  has  been released under section 167(2).  Under section 437(2) when  a person is released pending inquiry on the ground that  there are not sufficient grounds to believe that he had  committed a non-bailable offence may be committed to custody by  court which released him on bail if it is satisfied that there are sufficient grounds for so doing after inquiry is  completed. As  the  provisions  of  section 437(1),  (2)  and  (5)  are applicable  to a person who has been released under  section 167(2)  the  mere  fact that subsequent  to  his  release  a challan  has been filed is not sufficient to commit  him  to custody.   In  this  case the bail  was  cancelled  and  the appellants  were  ordered to be arrested  and  committed  to custody  on the ground that subsequently a  chargesheet  had been  filed and that before the appellants were directed  to be  released under section 107(2) their bail petitions  were dismissed  on  merits  by the Sessions Court  and  the  High Court.  The fact that before an order was passed under  sec- tion 167(2) the bail petitions of the accused were dismissed on  merits is not relevant for the purpose of taking  action under  section  437(5).  Neither is it a valid  ground  that subsequent to release of the appellants a challan was  filed by the police.  The court before directing the arrest of the accused  and committing them to custody should  consider  it necessary  to do so under section 437(5).  This may be  done by the court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a nonbailable 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). The  learned counsel appearing for the respondents  referred to  decisions  of  the  various  High  Courts  in  1976  Cr. L.J.118,  1976 Cr.  L. J. 288, 1977 Cr.  L.J. 104, 1977  Cr. L.J., 394 and 1977 Cr.L.J. 486.  These decisions except  Ram Pal  Singh  and Others v. State of U.P.(1) are  not  on  the point  and therefore need no discussion.  In Rain Pal  Singh and  Others  vs.   State  of U.P.  a  single  Judge  of  the Allahabad  High  Court  held that  the  bail  under  section 167(2),  Criminal Procedure Code, has the same incidents  as the bail granted under Chapter XXXIII, and is accordingly to remain valid till it is cancelled and the cancellation of a bail canonly be on the grounds known to law and the  receipt of the chiargesheet in court can by itself be no ground  for cancellation of the bail.  The view expressed by the learned Judge is correct in law. In the result we hold that the cancellation of the bail  for

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the reasons stated by the High Court is not sound and direct that the appellants be set at liberty. P.H.P. Appeal allowed. (1)  1976Cr.  L.J.288. 591