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PETITIONER: PAMPAPATHY

       Vs.

RESPONDENT: STATE OF MYSORE

DATE OF JUDGMENT: 28/07/1966

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. HIDAYATULLAH, M. SHELAT, J.M.

CITATION:  1967 AIR  286            1966 SCR  477

ACT: Code  of Criminal Procedure (Act 5 of 1898), s.  561A-Appeal to High Court aganst conviction-Accused released an bail  by High Court-If bail can be cancelled by High Court.

HEADNOTE: The appellants were released on bail by the High Court under s.   426 Cr.  P.C., pending disposal of their appeal in  the High Court. On an   application  by  the  State   that   the appellants  were misusing their liberty and committing  acts of violence, the bail was cancelled by the High Court in the exercise  of  its inherent powers under s.  561-A,  Cr.   P. Code. On the question whether the High Court had such power, HELD:-The inherent power of the High Court under s.  561 A,  Ct. P.C., can be exercised either for giving  effect  to any  order under the Criminal Procedure Code or  to  prevent abuse  of the process of a court or otherwise to secure  the ends of justice; but such power cannot be invoked in respect of   any   matter  covered  by  a  specific   provision   or inconsistent  with  any specific provision of  the  Criminal Procedure  Code.   Under  ss. 497 and 498,  Cr.   P.C.,  the Legislature has made express provision for the  cancellation of bail in certain cases, but there is no express  provision when an appellant is released on bail under s, 426 Cr.  P.C. The  omission  must  be due to inadvertence  and  cannot  be regarded as deliberate, otherwise the subsequent conduct  of the  appellant,  however reprehensible it may be,  will  not justify  the  High  Court in canceling the  order  of  bail. Since  the  allegations against the  appellant  prima  facie indicate  abuse  of the Process of the Court, s.  561  A  is attracted  to  the case and the High Court was  entitled  to cancel the bail. [481 F-H; 482 D, F] Lala  Jairam  Das  v.  King  Emperor,  L.R.  72  I.A.   120, explained.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION:- Criminal Appeals Nos.  121 and 122 of 1966.

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Appeals  by special leave from the judgment and order  dated March 14, 1966 of the Mysore High Court in Criminal Revision Petitions Nos. 120 and 123 of 1966 respectively. M.K.  Ramamurthi, R. K. Garg and S. C. Agarwala, for  the appellants (in both the appeals). R.Gopalakrishnan  and B. R. G. K. Achar, for the  respon- dents (in both the appeals). The Judgment of the Court was delivered by RAMASWAMI  J. The appellants- Pampapathy and Shekarappa were tried  in the Court of Sessions at Chitradurga for  offences under  ss. 147, 148, 307, 323, 302 read with s. 149  and  s. 325 read 478 with s. 149 of the Indian Penal Co& and convicted of all the offences  other  than under s. 307 and s. 302 read  with  s. 149, Indian Penal Code.  The case of the prosecution was that the appellants,  along with  others,  some  of  whom  were  dismissed  workers   of Devangiri Cotton Mills and Shri Ganeshar Textiles Mills  and some  of  whom  were  office  bearers  and  members  of  the Devangiri  Cotton  Mills  Employees’  Association  and  Shri Ganeshar  Textiles Mills Workers Union, conspired  with  the common object of committing murder and other offences with a view  to  strengthen their Associations and  to  weaken  the rival Unions which had the sympathy of the Mill Managements. It was alleged that they intended to create fear in the mind of the Management of the Mills in order to gain their object of  getting  more  bonus  and  get  the  dismissed   workers reinstated.  It was stated that they formed themselves  into an unlawful assembly, armed themselves with deadly  weapons, and  attacked the deceased Heggappa and other loyal  workers on the night of March 19, 1964 causing the death of Heggappa and  injuries  to  4 persons.  The Sessions  Judge,  by  his judgment   dated  December  7,  1964  convicted   both   the appellants for offences under ss. 147, 148, 322 .324 and 325 read  with  s.  149,  Indian  Penal  Code.   The  appellants preferred appeals to the Mysore High Court and on  admission of  the appeals they were directed to be released  on  bail. On March 7, 1966, the State made two applications under  ss. 498(2) and 561A, Criminal Procedure Code for cancellation of the  bail granted to the two appellants.  In support of  the two   petitions  an  affidavit  was  filed  by  the   Deputy Superintendent   of  Police,  Devangiri  Division   Sri   K. Srinivasa  Alwa,  stating  that  the  two  appellants   were misusing their liberty ever since they were enlarged on bail by  doing acts of violence, creating trouble by  instigating the  labour  unions of Devangiri Cotton Mills  and  Shankara Textile  Mills to paralyse the smooth working of the  Mills. It was alleged  that they bad constituted themselves as ring leaders  of the Employees’ Association and were  engaged  in taking  part in unlawful assemblies at different  times  and committed offences against the peaceful workers of the Mill. The  appellants filed a counteraf fidavit denying that  they were  acting in a manner likely to cause breach of peace  or endanger  the lives of the workers.  On March 14,  1966  the Mysore High Court allowed the applications of the State  and ordered  that the bail granted to the appellants  should  be cancelled  and  they should be rearrested and  committed  to jailcustody. These appeals are brought, by special leave, from the  order of  the Mysore High Court dated March 14, 1966  in  Criminal Petitions Nos. 120 and 123 of 1966. The  question  of  law arising for  determination  in  these appeals  is whether, in the case of a person convicted of  a bailable offence where bail has been granted to him under s.

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426 of the Criminal 479 Procedure Code, it can be cancelled in a proper case by  the High  Court in exercise of its inherent power under s.  561A of the Crimitial Procedure Code? It  is  necessary at the outset to  reproduce  the  relevant provisions  of  the Criminal Procedure  Code.   Section  426 relates  to the suspension of the sentence or order  of  the trial court pending appeal and the release of the  appellant on bail.  The section reads as follows:-               "426.  (1) Pending any appeal by  a  convicted               person,  the Appellate Court may, for  reasons               to  be recorded by it in writing,  order  that               the   execution  of  the  sentence  or   order               appealed against be suspended and, also, if he               is in confinement, that he be released on bail               or on his own bond.               (2)The  power conferred by this section  on               an  Appellate Court may be exercised  also  by               the High Court in the case of any appeal by  a               convicted   person  to  a  Court   subordinate               thereto.               (2-A) When any person other than a person con-               victed of a non-bailable offence is  sentenced               to imprisonment by a Court, and an appeal lies               from  that  sentence, the Court  may,  if  the               convicted  person satisfies the Court that  he               intends to present an appeal, order that he be               released  on bail for a period  sufficient  in               the  opinion  of the Court to  enable  him  to               present  the appeal and obtain the  orders  of               the Appellate Court under sub-section (1)  and               the sentence of imprisonment shall, so long as               he  is  so released on bail, be deemed  to  be               suspended.               (2-B)  Where  a High Court is  satisfied  that                             convicted person has been granted spec ial leave               to  appeal  to the Supreme Court  against  any               sentence  which the High Court has imposed  or               maintained,  the  High  Court may,  if  it  so               thinks fit, order that pending the appeal  the               sentence   or   order  appealed   against   be               suspended,  and  also, if such  person  is  in               confinement, that he be released on bail.               (3)When   the   appellant   is   ultimately               sentenced to imprisonment, or imprisonment for               life, the time during which he is so  released               shall  be excluded in computing the  term  for               which he is so sentenced." Section 496 deals with persons accused of bailable offences. It provides that "when a person charged with the  commission of  a  bailable  offence is  arrested  or  detained  without warrant by an I officer in charge of a police station or  is brought before a court and is prepared at any time, while in the  custody  of  such  officer  or  at  any  stage  of  the proceedings before such court, to give bail, 480 such  person shall be released on bail".  Section 497  deals with  the  question  of granting bail in the  case  of  non- bailable offences.  It reads as follows:-               "497.  (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

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             police  station,  or  appears  or  is  brought               before  a Court, 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 :-               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.               (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 with-               out sureties for his appearance as hereinafter               provided.               (3)               (3-A)               (4)               (5)A High Court or Court of Session and, in               the  case of a person released by itself,  any               other Court may cause any person who has  been               released under this section to be arrested and               may commit him to custody." Section  498(1)  confers on the High Court or the  Court  of Session  power to direct admission to bail or  reduction  of bail in all cases where bail is admissible under ss. 496 and 497  whether  in  such  cases there  be  an  appeal  against conviction  or not.  Sub-section (2) of s. 498 empowers  the High  Court or the Court of Session to cause any person  who has  been admitted to bail under sub-s. (1) to  be  arrested and  committed  to custody.  Section 561A was added  to  the Code in 1923 and it reads as follows:-               "561-A.  Nothing in this Code shall be  deemed               to  limit or affect the inherent power of  the               High  Court  to  make such orders  as  may  be               necessary  to give effect to any  order  under               this Code, or to prevent abuse of the  process               of  any Court or otherwise to secure the  ends               of justice." 481 It was argued by Mr. Ramamurthy on behalf of the  appellants that after the High Court had once made an order  suspending the  sentence and granting bail to the appellants  under  s. 426, Criminal Procedure Code it had no power to cancel  that order  subsequently  and recommit the  appellants  to  jail- custody.   It was submitted that there was no express  power granted to the appellate court to cancel its order regarding the suspension of sentence pending the appeal and the  order of  release of the appellants on bail.  It was  pointed  out that  under  s.  497(5)  the  legislature  has  specifically conferred  power  on  specified courts to  cancel  the  bail granted  to a person accused of a non-bailable offence.   It was also pointed out by learned Counsel that under s. 498(2) the  legislature has conferred power on the High  Court  and the  Court  of  Session to cancel the  bail  granted  to  an accused  person  under  s. 498(1) and  ordering  him  to  be arrested  and  committed to jailcustody.  The  argument  put

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forward  on  behalf  of  the  appellants  is  that  if   the legislature intended to confer such a power on the appellate court  under s. 426 it would have been very easy for  it  to add an appropriate sub-section and make an express provision for  such  a power.  The omission to make  such  an  express provision  is, according to Mr. Ramamurthy, not a result  of inadvertence but it is deliberate, and if that is so it will not be permissible to take recourse to the provisions of  s. 561A to clothe the appellate court with power to cancel  the bail  in  a case falling under s.  426,  Criminal  Procedure Code.   It  was argued by Mr. Ramamurthy that  even  if  the appellants committed acts of violence during the period they were  enlarged  on bail and repeated the  very  offence  for which  they  had been convicted the bail bond could  not  be cancelled but the further conduct of the accused may justify another prosecution tinder the Indian Penal Code and that it would  not justify the rearrest of the appellants.   In  our opinion, there is no justification for the argument put for- ward on behalf of the appellants.  It is true that in s. 498 and  ss.  497(5) and 498 the legislature  has  made  express provision for the cancellation of a bail bond in the case of accused  persons released on bail during the course  of  the trial  but  no such express provision has been made  by  the legislature  in  the  case of a con.  evicted  person  whose sentence has been suspended under s. 426 and there has  been an  order  of release of the appellant on  bail.   There  is obviously  a lacuna but the omission of the  legislature  to make  a specific provision in that behalf is clearly due  to oversight   or  inadvertence  and  cannot  be  regarded   as deliberate.  If the contention of the appellants is sound it will  lead to fantastic results.  The argument is that  once an  order of suspension of sentence is made under s. 426  by the  appellate  court  and the appellant is  ordered  to  be released  on bail. the subsequent conduct of the  appellant. howsoever  reprehensible  it  may  be.  cannot  justify  the appellate  court in revoking the order of bail and  ordering the  rearrest  of the appellant.  The appellant  may  commit further acts of violence-, he may perpetrate once again  the very same offences 482 for  which he has been convicted; he may even  threaten  and criminally intimidate the prosecution counsel who may be in- charge  of the case in the appellate court’. he may  attempt to  abscond to a foreign country to escape the trial; or  he may  commit acts of violence in revenge against  the  police and  prosecution witnesses who have deposed against  him  in the trial court, but the appellate court will have no  power to  cancel the suspension of sentence and the order of  bail made  under  s.  426.   Criminal  Procedure  Code.   Such  a situation  could not have been in the contemplation  of  the legislature  and,  in our opinion, the omission to  make  an express  provision  in  that behalf  is  manifestly  due  to oversight   or  inadvertence.   In  a  situation   of   this description  the High Court is not helpless and in a  proper case  it may take recourse to the inherent  power  conferred upon it under s. 561A of the Criminal Procedure Code. The  inherent power of the High Court mentioned in s.  561A. Criminal Procedure Code can be exercised only for either  of the  three purposes specifically mentioned in  the  section. The  inherent  power  cannot be invoked in  respect  of  any matter  covered by the specific provisions of the Code.   It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code.  It is only if  the  matter in question is not covered by  any  specific provisions of the Code that s. 561A can come into operation.

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No legislative enactment dealing with procedure can  provide for  all  cases  that  can  possibly  arise  and  it  is  an established  principle that the Courts should have  inherent powers,  apart from the express provision of law, which  are necessary to their existence and for the proper discharge of the  duties imposed upon them by law.  This  doctrine  finds expression  in s. 561A which does not confer any new  powers on  the High Court but merely recognises and  preserves  the inherent  powers  previously  possessed  by  it.   We   are, therefore,  of  the opinion that in a proper case  the  High Court has inherent power under s. 561 A. Criminal  Procedure Code to cancel the order of suspension of sentence and grant of  bail  to  the appellant made  under  s.  426.   Criminal Procedure Code and to order that the appellant be rearrested and committed to jail-custody. We  should  like  to add that, even  before  s.  498(2)  was enacted, there was a consensus of judicial opinion in favour of the view that, if the accused person is released on  bail under  s.  498(1), his bail bond could be cancelled  and  he could  be  ordered to be arrested and committed  to  custody under the provisions of s. 561A of the Code (Mirza  Mohammad Ibrahim  v.  Emperor(1).  Seoti v. Rex(1),  Bachchu  Lal  v. State(1), Munshi Singh v. State(1) and The Crown Prosecutor, Madras  v. Krishnan(1)).  These decisions proceed  upon  the view that the exercise of inherent power (1) A.T.R. 1932 All.534. (2) A.I.R. 1948 All.366. (3) A. I.R. 1951 All.836 (5) I.L.R. [1946] Mad. 62. (4) A.I.R. 1962 All. 39. 483 to   cancel  bail  under  s.  561A  was  not   regarded   as inconsistent  with the provisions of s. 498(1) of the  Code. It  is  true that all these decisions referred to  cases  of persons  charged  with  non-bailable  offences;  but  it  is significant  that the provisions of s. 497(5) did not  apply to these cases and the appropriate orders were passed  under the purported exercise of the inherent power under s. 561A. In  the  course of argument Mr. Ramamurthy  strongly  relied upon  the decision of the Judicial Committee in Lala  Jairam Das  v. King-Emperor(1).  It was contended on behalf of  the appellants that the High Court has no power to grant bail to a  convicted person under s. 498 of the  Criminal  Procedure Code  and  therefore the provisions of s. 498(2)  cannot  be invoked  to the present case.  This argument is  undoubtedly correct  and  is supported by the decision of  the  Judicial Committee.   It was further contended by Mr.  Ramamurthy  on the  basis  of  this decision that Ch.  XXXIX  of  the  Code together with s. 426 was intended to contain a complete  and exhaustive statement of the powers of a High Court to  grant bail, and excludes the existence of any additional  inherent power in a High Court relating to the subject of bail.   But the  actual  decision  of  the  Judicial  Committee  has  no application to the facts of the present case.  The  question before  the  Judicial  Committee was  whether  the  Code  of Criminal  Procedure  confers any power on a  High  Court  in India  to grant bail to a person who has been convicted  and sentenced to imprisonment and to whom the Judicial Committee has given special leave to appeal against his conviction  or sentence.   It was held by the Judicial Committee  that  the High  Courts had no such power under the Criminal  Procedure Code  and  could  not grant bail to a person  who  has  been convicted  and  sentenced to imprisonment and  to  whom  the Judical Committee has given special leave to appeal  against his  conviction  and sentence.  The question  presented  for

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determination in the present case, namely, whether  inherent power of the High Court could be exercised for  cancellation of bail, was not the subject-matter of consideration  before the  Judicial Committee and that question did not  obviously arise  in the case before them.  The ratio decidendi of  the decision  of the Judicial Committee is  therefore  different and has no application to the present case.  We  accordingly reject the argument by Mr. Ramamurthy on this aspect of  the case. We   pass  on  to  consider  the  next  contention  of   the appellants,  viz., the case does not fall under s.  561A  of the Criminal Procedure Code and that it is not a proper case in  which the High Court should cancel bail even  though  it has  power under s. 561A to do so.  We are unable to  accept the argument of Mr. Ramamurthy as correct.  An affidavit was filed  before the High Court on behalf of the State  by  the Deputy  Superintendent  of Police.   Devangiri  Division  in which it was stated that the appellants were (1)72 I.A. 120. 484 misusing  the  liberty granted to them ever since  they  had been  enlarged  on  bail by  committing  acts  of  violence, creating  trouble  by  instigating  the  labour  unions   of Devanagiri Cotton Mills and other mills in Devanagiri with a view  to paralyse the smooth working of the Mills.   It  was also alleged that the appellants had constituted  themselves as  ring  leaders  of the Employees’  Association  and  were taking  part in unlawful assemblies at different  times  and had  committed offences against the peaceful workers of  the Mill.  OnDecember  31,  1965  Crime No.  360  of  1965  was registeredagainst the appellants for commission of  the offencesunder ss. 143, 448 and 324, Indian Penal Code.  On February 11, 1966 Crime No. 53 of 1966 was registered,in which  one of the appellants was alleged to  have  committed offences  under  ss.  341 and 323, Indian  Penal  Code.   On February  12, 1966 yet another Crime No. 54 of 1966 was  re- gistered  against the appellants for the commission  of  the offence  under ss. 143, 147, 341, 323 and 324, Indian  Penal Code.   The allegation against the appellants therefore  was that  they were misusing the liberty granted to them by  the appellate court and were indulging in acts of violence.   It is true that counter-affidavits were filed by the appellants denying the allegations made by the State but the High Court apparently  took the view that the allegations  against  the appellants on behalf of the State were well-founded and  the bail granted to them by the High Court should be  cancelled. In our opinion, the allegations made against the  appellants would prima facie indicate abuse of the process of the Court and the provisions of s. 561A are attracted to the case  and the  High  Court  was entitled to cancel  the  bail  of  the appellants  under  the provisions of that section.   In  our opinion,  Mr.  Ramamurthy  has  failed  to  make  good   his submission on this aspect of the case.  For these reasons we hold that there is no merit in these appeals which are accordingly dismissed. Appeal dismissed. M/85SCI,500-30-6-67-GIPS