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PETITIONER: GURCHARAN SINGH & ORS.

       Vs.

RESPONDENT: STATE (DELHI ADMINISTRATION)

DATE OF JUDGMENT06/12/1977

BENCH: GOSWAMI, P.K. BENCH: GOSWAMI, P.K. TULZAPURKAR, V.D.

CITATION:  1978 AIR  179            1978 SCR  (2) 358  1978 SCC  (1) 118  CITATOR INFO :  R          1978 SC 961  (25)  R          1978 SC1016  (1)  R          1978 SC1095  (1)  RF         1980 SC1632  (29)  R          1984 SC1503  (9)  D          1985 SC 969  (12)

ACT: Constitution  of  India-Art. 136-When  Supreme  Court  would interfere with order cancelling bail by High Court. Criminal Procedure Code 1973-Sections 437, 439 and 497-Bail- Principles for grant of-Cancellation of.

HEADNOTE: The  prosecution is launched against the  appellant  accused who are ranging, from the Deputy inspector General of Police to the Police Constables on the ground that they were  party to a criminal conspiracy to kill Sunder and caused his death by drowning him in Yamuna River pursuant to the  conspiracy. Sunder  was said to be a notorious dacoit who was wanted  in several  cases  of murder and dacoity alleged to  have  been committed by him in Delhi and elsewhere.  It is stated  that by May 1976 Sunder became a security risk for Sanjay Gandhi. The   appellants  were  arrested  in  connection  with   the prosecution between 10th June 1977 and 12th July 1977.   The Magistrate  declined to release them on  bail.   Thereafter, they  approached the Sessions Judge under s. 439(Z) of,  the Cr.  P. C. 1973.  The Sessions Judge granted bail to  the  4 appellants.  Thereafter the State moved the High Court under s.  439(2)  against  the order of  the  Sessions  Judge  for cancellation of the bail.  The Sessions Judge while granting the bail held that the arguments of the prosecution that  if the appellants were released on bail they would misuse their freedom   to  tamper  with  the  witnesses  was  not   quite convincing.   The learned Judge further held that there  was little  to  gain by tampering with the  witnesses  who  have themselves  already tampered with their evidence  by  making contradictory statements in respect of the same transaction. The learned Judge also held that there was inordinate  delay in   registering  the  case  and  that  there   was   little probability  of  the  appellants  fleeing  from  justice  or tampering  with the witnesses and also having regard to  the

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character  of evidence the court was inclined to grant  bail to  the appellants.  The High Court while setting aside  the orders of the Sessions Judge observed, that considering  the nature of the offence, character of the evidence,  including the  fact  that  some of the  witnesses  during  preliminary enquiry  did  not fully support the  prosecution  case,  the reasonable apprehension of witnesses being tampered with and all  other factors relevant for consideration for  grant  or refusal  of bail in a non-bailable offence  punishable  with death  or imprisonment for life there was no option  but  to cancel the bail. In an appeal by special leave the appellants contended: (1)The  old Criminal Procedure Code refers to  an  accused being "brought before a Court" whereas s. 437(1) of Cr.   P. C.  1973 uses the expression "brought before a  Court  other than the High Court or a Court of Sessions".  Therefore, the limitations laid down in s. 497(1) to the effect that "shall not  be so relevant if there appears reasonable  ground  for believing  that he has been guilty of an offence  punishable with  death or imprisonment for life" are not in the way  of the High Court or the Court of Sessions in dealing with bait under s. 439 of the Code. (2)Under section 439(2) the High Court could not entertain application  for  cancellation of bail and it was  only  the court  of  sessions  that was competent  to  deal  with  the matter. (3) On facts the High Court was not justified in  cancelling the bail. Dismissing the appeal, HELD  :  (1)  The change in language u/s.  437(1)  does  not affect the true legal position.  Under the new Code as  well as  the old one an accused after being arrested is  produced before the Magistrate.  There is not a provision in the 359 code Whereby an accused is for the first time produced after initial  arrest before the Court of Sessions or  before  the High  Court.  It is not possible to hold that  the  Sessions Judge or the High Court certainly enjoying wide powers  will be oblivious of the considerations of the likelihood of  the accused being guilty of an offence punishable with death  or imprisonment for life. [363 C.D, E] (2)A  Court  of Sessions cannot cancel a  bail  which  has already   been  granted  ,by  the  High  Court  unless   new circumstances  arise during the progress of the trial  after the  accused  person has been admitted to bail by  the  High Court.  If,  however, a Court of Sessions  had  admitted  an accused  person to bail the State has two options.   It  may move  the Sessions Judge if certain new  circumstances  have arisen which were not earlier known to the State.  The State may as well approach the High Court being the superior court under  s.  439(2) to commit the accused  to  custody.   This position follows from the subordinate position of the  court of Sessions vis-a-vis the High Court.  Under s. 397 the High Court  and  the  Sessions Judge have  concurrent  powers  of revision.   However, when an application under that  section has.  been  put in by person to the High ,Court  or  to  the Sessions  Judge  no further application by the  same  person shall be entertained by either authority. [364 B-E, F] (3)Chapter  XXMII contains provisions in respect  of  bail and bonds. Section436  provides  for invariable  rule  for bail in case of bailable offences subjectto          the specified exception under sub-s. (2).  Section 437  provides as  to  when  bail may ’be taken  in  case  of  non-bailable offences.    It   makes  a  distinction   between   offences punishable  with death or imprisonment for life on the  ,one

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hand and the rest of the offences on the other hand. [364 C] (4)With  regard  to  the  first  category  if  there   are reasonable grounds for believing that an accused has been so guilty in other non-bailable cases judicial discretion  will always be exercised by the court in favour of granting  bail subject   to  s.  437(3)  with  regard  to   imposition   of conditions, if necessary.  In case of non-bailable  offences punishable with death or imprisonment for life reasons  have to  be  recorded for releasing a person on bail.   The  only limited  enquiry by the Magistrate at that stage relates  to the  materials  for  the  suspicion.   The  position   would naturally  change on investigation progress and  more  facts and   circumstances   come  to   light.    The   over-riding considerations  in granting bail are the nature and  gravity of the circumstances in which the offence is committed,  the position  and  the status of the accused with  reference  to victim  and  the witnesses, the likelihood  of  the  accused fleeing   from  justice,  of  repeating  the   offence,   of jeopardising  his own life being faced with a grim  prospect of  possible conviction in the case, of tampering  with  the witnesses,  the  history  of  the case as  well  as  of  its investigation and other relevant grounds which in view of so many variable factors, cannot be exhaustively set-out. 1365 A-C, D, 366 F-H, 367 A-H. 368 A] The  State v. Captain Jagjit Singh, [1962] (3) S.C.R.,  622, referred to. (5)Ordinarily,  the  High  Court would  not  exercise  its discretion to interfere with an order of bail granted by the Sessions  Judge  in favour of the accused. @In  the  present case,  the Sessions Judge did not take into  proper  account the  grave  apprehension of the prosecution that  there  was likelihood of the appellants ,tampering with the prosecution witnesses.   In  the  peculiar nature of the  case  and  the position of the appellants in relation to the eye  witnesses it  was  incumbent upon the Sessions Judge  to  give  proper weight  to the serious apprehension of the prosecution  with regard to the tampering with the eye witnesses.  The  manner in  which  the above plea was disposed of  by  the  Sessions Judge was very casual.  The facts and circumstances of  each case  will  govern the exercise of  judicial  discretion  in granting  or cancelling bail.  The High Court has  correctly appreciated  the entire position and the Sessions Judge  did not at the stage the case was before him.  This court  would not, therefore, be justified u/Art. 136 of the  Constitution in  interfering  with the discretion exercised by  the  High ,Court in cancelling the bail. [368 C-D-H, 370 A-B] The  Court,  however, directed that the  Magistrate  without loss of further time, should pass an appropriate order under s.  209  Cr.   P.  C.  and  that  Court  of  Sessions  would thereafter commence trial at an early date and examine  all, the  eye witnesses first and such other  material  witnesses thereafter as may be produced by the prosecution as early as possible and that trial should proceed 360 day  to day as far as practicable.  The Court also  observed that after the statements of the eye witnesses and the Panch witness  have been recorded it would be open to the  accused to move the Sesions Judge for admitting them to bail. [370 C-E]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 456 of 1977.

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Appeal  by Special Leave from the Judgment and  Order  dated 19th  of September 1977 of the Delhi High Court in  Criminal Misc. (M).     No. 456 of 1977 and Criminal Appeal No. 457 of 1977 Appeal  by Special Leave from the Judgment and  Order  dated 19-9-1977 in the Delhi High Court in Criminal Misc. (M)  No. 474 of 1977. A.N.  Mulla,  D. C. Mathur, S. K. Gambhir, Miss  B.  Ram- krithiani  and Miss Manju Jathey for the Appellants  in  Cr. A.456/77. D.Mokerjee,  D.  C. Mathur, S. K. Gambhir, Miss  B.  Ram- krikhiani,  Miss Manju Jehey for the Appellants in Crl.   A. 457/77. Soli J. Sorabjee, Addl, Solicitor General and R. N. Sachthey for the Respondent in both the appeals. The Judgment of the Court was delivered by GOSWAMI, J. These two appeals by Special Leave are  directed against  the  judgment and order of the  Delhi  High  Court. cancelling  the  orders of bail of each  of  the  appellants passed by the learned Sessions Judge, Delhi.  They were  all arrested in pursuance of the First Information Report lodged by  the Superintendent of Police, C.B.I. on 10-6-77 in  what is now described as the "Sunder Murder Case".  The report at that  stage  did not disclose names of accused  persons  and referred  to  the  involvement of "some  Delhi  Police  Per- sonnel".   Sunder was said to be a notorious dacoit who  was wanted  in  several cases of murder and dacoity  alleged  to have  been committed by him in Delhi and elsewhere.   It  is stated that by May, 1976, Sunder became a "security risk for Mr.  Sanjay  Gandhi".   It appears Sunder  was  arrested  at Jaipur  on  31-8-1976  and was in police  custody  in  Delhi between 2nd of November 1976 and 26th of November 1976 under the orders of the Court of the Additional Chief Metropolitan Magistrate, Shahdara, Delhi, It  is alleged that the appellants ranging from  the  Deputy Inspector General of Police and the Superintendent of Police at the top down to some police constables were a party to  a criminal  conspiracy to kill Sunder and caused his death  by drowning  him in the Yamuna in pursuance of the  conspiracy. According to the prosecution, the alleged murder took  place on the night of 24th of November 1976. The  appellants were arrested in connection with  the  above case  between  June  10,  1977 and July  12,  1977  and  the Magistrate  declined to release them on  bail.   Thereafter, they approached the learned 361 Sessions  Judge  under Section  439(2),  Criminal  Procedure Code,  1973  (briefly the new Code) and secured  release  on bail of the four appellants, namely, Gurcharan Singh (Supdt. of Police), P. S. Bhinder (D.I.G. of Police), Amarjit  Singh (Inspector)  and Constable Paras Ram on 1st August 1977  and of the eight other police personnel on 11th August 1977. Charge  sheet  was submitted on 9th August 1977  against  13 accused  including  all the appellants under  Section  120-B read with Section 302, I.P.C. and under other Sections.  The 13th  accused  who  was also a policeman  has  been  evading arrest. The Delhi Administration moved the High Court under  Section 439(2), Cr.  P.C. against the orders of the learned Sessions Judge  for cancellation of the bail.  On September 19,  1977 the  High Court set aside the orders of the  Sessions  Judge dated 1-8-1977 and 11-8-1977 and the bail bonds furnished by the  appellants were cancelled and they were ordered  to  be taken  into  custody  forthwith.   Hence  these  appeals  by Special  Leave  which  were  argued  together  and  will  be

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disposed of by this judgment. In  order  to appreciate the submissions, on behalf  of  the appellants,  of Mr. Mulla followed by Mr. Mukherjee it  will be appropriate to briefly advert to certain relevant facts. On  the allegations, this is principally a case of  criminal conspiracy  to  murder a person in police custody  be  he  a bandit.   The  police personnel from  the  Deputy  Inspector General  of  Police  to police Constables  are  said  to  be involved as accused. Before  the F.I.R. was lodged on 10th June 1977,  there  had been  a preliminary inquiry conducted by the C.B.I.  between 6th  of  April 1977 and 9th of June 1977  bearing  upon  the death  of  Sunder.  Fifty three witnesses were  examined  in that inquiry and six of them were said to be eye  witnesses. Those eye witnessess were all police personnel.  During this preliminary  inquiry, all the six alleged eye witnesses  did not  support the prosecution case, but gave  statements  ill favour  of  the accused.  However, as  stated  earlier,  the F.I.R.  was  lodged on 10th of June 1977  and  investigation proceeded  in  which statements of witnesses  were  recorded under  Section  161,  Cr.  P.C.  The  appellants  were  also arrested  and  suspended during the period between  10th  of June  1977 and 12th of July 1977.  During the course of  the investigation, seven witnesses including six persons already examined  during  the preliminary inquiry,  gave  statements implicating  the  appellants  in support of  the  theory  of prosecution.   The  witnesses  were also  forwarded  to  the Magistrate for recording their statements under Section 164, Cr.   P.C. All the seven witnesses, it is stated,  continued to support the prosecution case in their statements on  oath recorded under Section 164, Cr.  P.C. Six eye witnesses  who made  such  discrepant  statements  and  had  supported  the defence  version  at  one stage,  explained  that  some  the accused, namely, D.S.P. ’R.  K. Sharma and Inspector Harkesh had exercised pressure on them to 362 make such statements in favour of the defence.  The  seventh eye  witness  A.S.I. Gopal Das, who had  not  been  examined earlier,  made  statements under Section 164, Cr.   P.C.  in favour of the prosecution. It is in the above background that the Delhi  Administration moved the High Court for cancellation of the bail granted by the   Sessions   Judge  alleging  that   there   was   grave apprehension  of  the witnesses thing tampered with  by  the accused  persons on account of their position and  influence which they wielded over the witnesses.  The learned Sessions Judge adverting to this aspect had, while granting bail, ob- served as follows :-               "The argument of the learned Public Prosecutor               that if released on bail, the petitioner  will               misuse  their  freedom  to  tamper  with   the               witnesses is not quite convincing.  After all,               there is little to gain by tampering with  the               witnesses   who,  have,  themselves,   already               tampered   with  their  evidence   by   making               contradictory  statements  in respect  of  the               same transaction."               The  learned  Sessions Judge  ended  his  long               discussion as follows:-               "To   sum  up,  after  reviewing  the   entire               material  including  the  inquest  proceedings               held   by   the   Sub-Divisional    Magistrate               statements  recorded  by the  CBI  during  the               preliminary enquiry and under section 161, Cr.               P.C. and the statements recorded under section

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             164,  Cr.   P.C.  and  having  regard  to  the               inordinate delay in registering this case  and               to  the  circumstances that  there  is  little               probability  of  the petitioners  flying  from               justice or ’tampering with the witnesses,  and               also   having  regard  to  the  character   of               evidence,  I am inclined to grant bail to  the               petitioners." The  High Court, on the other hand, set aside the orders  of the Sessions Judge observing as follows :-               "Considering   the  nature  of  the   offence,               character  of the evidence including the  fact               that some of the witnesses during  preliminary               inquiry did not fully support the  prosecution               case; the reasonable apprehension of witnesses               being  tampered  with and  all  other  factors               relevant for consideration, while  considering               the  application for grant or refusal of  bail               in  a  non-bailable offences  punishable  with               death  or  imprisonment for life,  I  have  to               option  but to cancel the bail.  I am  of  the               considered  view  that  the  Learned  Sessions               Judge did not exercise his judicial discretion               on  relevant  well recognised  principles  and               factors which ought to have been considered by               him." Section  437 of the new Code corresponds to Section  497  of the Code of Criminal Procedure, 1898 (briefly the old  Code) and  Section 439 of the new Code corresponds to Section  498 of the old Code.  Since there is no direct authority of this Court with regard to 363 ’Section  439, Cr.  P.C. of the new Code, Counsel  for  both sides  drew our attention to various decisions of  the  High Courts under Section 498, Cr.  P.C. of the old Code,. Mr.  Mulla drew out particular attention to some  change  in the  language  of  Section 437(1), Cr.   P.  C.  (new  Code) compared  with Section 497(1) of the old: Code.   Mr.  Mulla points out that while Section 497(1), Cr.  P. C. of the  old Code, in terms, refers to an accused being "brought before a court",  Section  437(1),  Cr.   P.C.  uses  the  expression "brought before a court other than the High Court or a Court of Session".  From this, Mr. Mulla submits that  limitations with regard to the granting of bail laid down under  Section 497(1)  to  the  effect that the accused "shall  not  be  so released  if there appears reasonable grounds for  believing that he has been guilty of an offence punishable with  death or  imprisonment  for life" are not in the way of  the  High Court  or  the Court of Session in dealing with  bail  under Section  439 of the new Code.  It is, however, difficult  to appreciate  how  the change in the  language  under  Section 437(1)  affects the true legal position.  Under the  new  as well  as  the old Code an accused after  being  arrested  is produced  before  the Court of a Magistrate.   There  is  no provision  in the Code whereby the accused is for the  first time  produced  after  initial arrest before  the  Court  of Session  or  before  the High Court.   Section  437(1),  Cr. P.C., therefore, takes care of the situation arising out  of an accused being arrested by the police and produced  before a  Magistrate.   What  has been the rule  of  production  of accused person after arrest by the police under the old Code has been made explicitly clear in Section 437(1) of the  new Code by excluding the High Court or the Court of Session. From the above change of language it is difficult to reach a conclusion  that the Sessions Judge, or the High Court  need

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not  even bear in mind the guidelines which  the  Magistrate has necessarily to follow in considering bail of an accused. It  is not possible to hold that the Sessions Judge  or  the High   Court,  certainly  enjoying  wide  powers,  will   be oblivious.  of the considerations of the likelihood  of  the accused being guilty of an offence punishable with death  or imprisonment for life.  Since the Sessions Judge or the High Court will be approached by an accused only after refusal of bail by the Magistrate, it is not possible to hold that  the mandate  of the law of bail under Section 437, Cr. P.C.  for the  Magistrate will be ignored by the High Court or by  the Sessions Judge. It  is submitted by Mr. Mukherjee that u/s 439(2) Cr.   P.C. of  the  new Code, the High Court could  not  entertain  the application  for  cancellation of bail and it was  only  the Court of Session that was competent to deal with the matter. Section  439 of the new Code confers special powers on  High Court  ,or Court of Session regarding bail.  This  was  also the position under Sec. 498 Cr.  P.C. of the old Code.  That is to say, even if a Magistrate refuses to grant bail to  an accused person, the High Court or the  Court of Session  may order  for  grant of bail in  appropriate  cases.  Similarly under Section 439 (2) of the new Code, the High Court or 364 the  Court  of Session may direct any person  who  has  been released  oil bail to be arrested and committed to  custody. In  the  old  Code, Section 498(2) was  worded  in  somewhat different  language when it said that a High Court or  Court of  Session may cause any person who been admitted  to  bail under  subsection (1) to be arrested and may commit  him  to custody.   In other Words, under Section 498(2) of  the  old Code,  a  person who had been admitted to bail by  the  High Court  could  be  committed  to custody  only  by  the  High Court.Similarly, if a person was admitted to bail by a Court of Session,it  was only the Court of Session that  could commit him to custody.This restriction upon the power  of entertainment of an applicationfor committing a  person, already  admitted to bail, to custody, is lifted in the  new Code  under Section 439(2). under Section 439(2) of the  new Code a High Court may commit a person released on bail under Chapter  XXXIII by any Court including the Court of  Session to  custody,  if it thinks appropriate to do so.   It  must, however, be made clear that a Court of Session cannot cancel a  bail  which has already been granted by  the  High  Court unless  new circumstances arise during the progress  of  the trial  after an accused person has been admitted to bail  by the  High  Court.   If,  however, a  Court  of  Session  had admitted  an  accused  person to bail,  the  State  has  two options.  it  may  move the Sessions Judge  if  certain  new circumstances  have arisen which were not earlier  known  to the  State and necessarily, therefore, to that  Court.   The State may as well approach the High Court being the superior Court under Section 439(2) to commit the accused to custody. When,  however, the State is aggrieved by the order  of  the Sessions   Judge  granting  bail  and  there  are   no   new circumstances  that  leave copied up  except  those  already existed,  it  is futile for the State to move  the  Sessions Judge  again  and it is competent in law to  move  the  High Court  for cancellation of the bail.  This position  follows from the subordinate position of the Court of Session vis-a- vis the High Court. It is significant to note that under section 397, Cr.   P.C. of the new Code while the High Court and the Sessions  Judge have  the  concurrent powers of revision,  it  is  expressly provided  under sub-section 3 of that section that  when  an

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application  under that Section has been made by any  person to  the  High Court or to the Sessions  Judge,  not  further application  by  the  same person shall  be  entertained  by either of them.  This is the position explicitly made  clear under  the  new  Code  with  regard  to  revision  when  the authorities   have  concurrent  powers.   Similar  was   the position  under section 435 (4), Cr.  P.C. of the  old  Code with  regard to concurrent revision powers of  the  Sessions Judge  and the District Magistrate.  Although under  section 435(1), Cr.  P.C. of the old Code the High Court, a Sessions Judge  or  a District Magistrate had  concurrent  powers  of revision, the High Court’s jurisdiction in revision was left untouched.  There is no provision in the new Code  excluding the  jurisdiction  of  the High Court  in  dealing  with  an application   under  section  439(2).   Cr.   P.C.   officer incharge  of  a  police station to a person  accused  of  or suspected  of the commission of an offence  punishable  with death  or imprisonment for life, if there appear  reasonable grounds   for  believing  that  he  has  been   so   guilty. Naturally,  therefore, at the stage of investigation  unless there are some materials to justify an officer or the  court to believe- 365 that  there are no reasonable ground for believing that  the person accused of or suspected of the commission of much  an offence has been guilty of the same, there is a ban  imposed u/s 437(1) Cr.  P.C. against granting of bail.  On the other hand,  if  to  either the officer  incharge  of  the  police station  or  to  the court there  appear  to  be  reasonable grounds to believe that the accused has been guilty of  such an  offence  there will be no question of the court  or  the officer  granting  bail to him.  In all  other  non-bailable cases  judicial  discretion win always be exercised  by  the court  in favour of granting bail subject to sub-sec.  3  of Sec.  437 Cr.  P.C. with regard to imposition of  conditions if  necessary.   Under  sub-sec. 4 of S. 437  Cr.   P.C.  an officer or a court releasing any person on bail under sub-s. 1  or  sub-s.  2 of that section is required  to  record  in writing  his or its reasons for so doing.  That is  to  say, law  requires that in non-bailable offences punishable  with death or imprisonment for life. reasons have to be  recorded for  releasing  a  person on bail,  clearly  disclosing  how discretion has been exercised in that behalf. Section  437  Cr.  P.C. deals, inter alia  with  two  stages during  the  initial period of the investigation of  a  non- bailable  offence.  Even the officer incharge of the  police station may, by recording his reasons in writing, release  a person accused of or suspected of the commission of any non- bailable  offence provided there are no  reasonable  grounds for believing that the accused has committed a  non-bailable offence.  Quick arrests by the police may be necessary  when there  are sufficient materials for the accusation  or  even for suspicion.  When such an accused is produced before  the court, the court has a discretion to grant bail in all  non- bailable  cases  except  those  punishable  with  death   or imprisonment  for  life, if there appear to  be  reasons  to believe  that  he  has been guilty of  such  offences.   The Courts  over-see  the  action of  the  police  and  exercise judicial discretion in granting bail always bearing in  mind that  the liberty of an individual is not unnecessarily  and unduly  abridged and at the same time the cause  of  justice does not suffer.’ After the court releases a person on  bail under  sub-s.  1 or sub-Sec. 2 of S. 437 Cr.   P.C.  it  may direct him to be arrested again when it considers  necessary so  to  do.  This will be also in exercise of  its  judicial

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discretion on valid grounds. Under  the  first proviso to s. 167(2) no  Magistrate  shall authorise the detention of an accused in custody under  that section  for a total period exceeding 60 days on the  expiry of  which  the accused shall be released on bail  if  he  is prepared to furnish the same- This type of release under the proviso shall be deemed to be a release under the provisions of Chapter XXXIII relating to bail.  This proviso is an  in- novation  in  the  new  Code and is  intended  to  speed  up investigation  by the police so that a person does not  have to  languish unnecessarily in prison facing a trial.   There is  a similar provision under sub-s. 6 of s. 437  Cr.   P.C. which  corresponds  to s. 497 (3A) of the  old  Code.   This provision.  is  again  intended to speed  up  trial  without unnecessarily detaining a person as an under-trial prisoner, unless for reasons to be recorded in writing, the Magistrate otherwise directs.  We may also 366 notice in this connection sub-s. 7 of s. 437 which  provides that  if at any time after the conclusion of a trial of  any person  accused  of  nonbailable  offence  and  before   the judgment  is delivered, the court is of opinion  that  there are reasonable grounds for believing that the accused is not guilty of such an offence, it shall release the accused,  if he is in custody, on the execution of him of a bond  without sureties  for  his  appearance to hear  the  judgment.   The principle underlying S. 437 is, therefore, towards  granting of bail except in, cases where there appear to be reasonable grounds for believing that the accused has been guilty of an offence  punishable with death or imprisonment for life  and also  when  there  are other valid reasons  to  justify  the refusal of bail. Section  437 Cr.  P. C. is concerned only with the court  of Magistrate.   It expressly excludes the High Court  and  the court  of  session.   The  language of s.  437  (1)  may  be contrasted  with s. 437 (7) to which we have already made  a reference.  While under sub-sec. (1) of s. 437 Cr. P. C. the words  are : "If there appear to be reasonable  grounds  for believing that he has been guilty".  Sub-s. (7) says : "that there are reasonable grounds for believing that the  accused is  not  guilty  of such an offence".   This  difference  in language  occurs  on account of the stage at which  the  two sub--sections operate.  During the initial investigation  of a  case  in order to confine a person  in  detention,  there should only appear reasonable grounds for believing that  he has  been  guilty  of an offence punishable  with  death  or imprisonment for life.  Whereas after submission of  charge- sheet  or during trial for such an offence the court has  an opportunity  to form some-what clear opinion as  to  whether there are reasonable grounds for believing that the  accused is not guilty of such an offence.  At that stage the  degree of  certainty  of opinion in that behalf is more  after  the trial  is over and judgment is deferred than at a  pre-trial stage  even  after the chargesheet.  There is  a  noticeable trend  in the above provisions of law that even in  case  of such non-bailable offences a person need not be detained  in custody for any period more than it is absolutely necessary, if there are no reasonable grounds for believing that he  is guilty of such an offence.  There will be,, however, certain overriding considerations to which we shall refer hereafter. Whenever  a  person is arrested by the police  for  such  an offence, there should be materials produced before the court to come to a conclusion as to the nature of the case lie  is involved  in or he is suspected of.  If at that  stage  from the materials available there appear reasonable grounds  for

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believing  that  the person has been guilty  of  an  offence punishable  with death or imprisonment for life,  the  court has no other option than to commit him to custody.  At  that stag&,  the  court is concerned with the  existence  of  the materials  against the accused and not as to  whether  those materials are credible or not on the merits. In  other  non-bailable cases the court  will  exercise  the judicial  discretion in favour of granting bail  subject  to sub  s. 3 of s. 437 Cr.  P.C. if it deems necessary  to  act under  it.  Unless exceptional circumstances are brought  to the   notice   of  the  court  which   may   defeat   proper investigation  and a fair trial, the court will not  decline to  grant bail to a person who is not accused of an  offence punishable with death or imprisonment for life.  It is  also clear that when an accused is brought 367 before the court of a Magistrate with the allegation against him of an. offence punishable with death or imprisonment for life,  he  has  ordinarily no option in the  matter  but  to refuse  bail  subject, however, to the first proviso  to  s. 437(1)  Cr.   P.  C.  and in a  case  where  the  Magistrate entertains  a  reasonable belief on the materials  that  the accused has not been guilty of such an offence.  This  will, however,  be an extra ordinary occasion since there will  be some  materials  at  the stage of initial  arrest,  for  the accusation  or  for strong suspicion of  commission  by  the person of such an offence. By  an  amendment in 1955 in sec. 497 Cr.  P.C. of  the  old Code the words "or suspected of the commission of’ were  for the  first time introduced.  These words were  continued  in the  new  Code  in  s. 437(1) Cr.P.C.  It  is  difficult  to conceive  how  if  a police officer arrests a  person  on  a reasonable suspicion of commission of an offence  punishable with death or imprisonment for life (S. 41 Cr.  P.C. of  the new  Code) and forwards him to a Magistrate (S.  167(1)  Cr. P.C. of the new Code) the Magistrate at that stage will have reasons  to  hold that there are no reasonable  grounds  for believing  that he has not been guilty of such  an  offence. At  that  stage = the Magistrate is able to  act  under  the proviso to s. 437(1) Cr.  P.C. bail appears to be out of the question.   The only limited inquiry may then relate to  the materials  for the suspicion.  The position  will  naturally change  as  investigation  progresses  and  more  facts  and circumstances come to light. Section  439(1), Cr. P.C. of the new Code on the other  hand confers specialpowers on the High Court or the Court of Session in respect of bail.  Unlike u/s. 437(1) there is  no ban imposed u/s. 439(1), Cr.  P.C. against granting of  bail by the High Court or the Court of Session to persons accused of  an offence ’ punishable with death or  imprisonment  for life.   It is, however, legitimate to suppose that the  High Court  or  the  Court of Session will be  approached  by  an accused  only after he has failed before the Magistrate  and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its  judicial  discretion  in considering  the  question  of granting  of  bail u/s 439(1), Cr.  P. C. of the  new  Code. The over-riding considerations in granting bail to which  we adverted to earlier and which are common bote in the case of Section 437(1) and Section 439(1), Cr.  P.C. of the new Code are the nature and gravity of the circumstances in which the offence  is  committed, the position and the status  of  the accused with reference to the victim and the witnesses;  the likelihood,   of  the  accused  fleeing  from  justice;   of

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repeating  the offence; of jeopardising his own  life  being faced  with  a grim prospect of possible conviction  in  the case;  of tampering with witnesses; the history of the  case as  well as of its investigation and other relevant  grounds which,  in  view  of so many  variable  factors,  cannot  be exhaustively set out. The question of cancellation of bail u/s. 439(2), Cr.  P. C. of  the  new Code is certainly different from  admission  to bail  u/s.  439(1), Cr. P. C. The decisions of  the  various High Courts cited before us 368 are mainly with regard to the admission to bail by the  High Court under section 498, Cr.  P.C. (old).  Power of the High Court  or  of the Sessions Judge to admit  persons  to  bail under  section  498, Cr.  P.C. (old) was always held  to  be wide   without  any  express  limitations  it],   law.    In considering  the  question  of bail justice  to  both  sides governs  the  judicious  exercise of  the  court’s  judicial discretion.   The only authority cited before us where  this Court  cancelled bail granted by the High Court is  that  of The  State  v.  Captain Jagjit Singh(1).   The  Captain  was prosecuted  along with others for conspiracy and also  under section 3 and 5 of the Indian Official Secrets Act, 1923 for passing on official secrets to a foreign agency.  This Court found  a  basic  error in the order of  the  High  Court  in treating the case as falling under section 5 of the Official Secrets Act which is a bailable offence when the High  Court ought to have proceeded on the assumption that it was tinder section  3 of that Act which is a non-bailable offence.   It is  because  of this basic error into which the  High  Court fell  that  this  Court interfered with the  order  of  bail granted by the High Court. In  the present case the Sessions Judge having admitted  the appellants to bail by recording his reasons we will have  to see whether that order was vitiated by any serious infirmity for which it was right and proper for the High Court, in the interest  of  justice, to interfere with his  discretion  in granting the bail. Ordinarily  the High Court will not exercise its  discretion to  interfere with an order of bail granted by the  Sessions Judge. in favour of an accused. We have set out above the material portions of the order  of the  Sessions  Judge from which it is seen that he  did  not take  into  proper  account the grave  apprehension  of  the prosecution  that there was a likelihood of  the  appellants tampering  with the prosecution witnesses.  In the  peculiar nature  of  the case revealed from the allegations  and  the position of the appellants in relation to the eye  witnesses it  was  incumbent upon the Sessions Judge  to  give  proper weight  to the serious apprehension of the prosecution  with regard to tampering with the eye witnesses, which was  urged before  him  in resisting the- application  for  bail.   The matter would have been different if there was absolutely  no basis for the apprehension of the prosecution with regard to tampering  of the witnesses and the allegation- rested  only on a bald statement.  The manner in which the above plea was disposed  of by the Sessions Judge was very casual and  even the  language in the order is not clear enough  to  indicate what  he  meant  by observing  that  "the  witnesses........ themselves  already tampered with their evidence  by  making contradictory statements............ ". The learned Sessions Judge was not alive to the legal position that there was  no substantive evidence yet recorded against the accused  until the  eye witnesses were examined in the trial which  was  to proceed unimpeded by any vicious probability.  The witnesses

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stated  on oath u/s. 164.  Cr.  P.C. that they had made  the earlier  statements  due to pressurisation by  some  of  the appellants.  Where the truth lies (1)  [1962] 3 S.C.R. 622. 369 will  he determined at the trial.  The High Court took  note of this serious infirmity of approach of the Sessions  Judge as  also the unwarranted manner bording on  his  prematurely commenting on the merits of the case by observing that "such deposition  cannot escape a taint of unreliability  in  some measure  or  other".  The only question which  the  Sessions Judge  was  required to consider at that stage  was  whether there  was  prima facie case made out, as  alleged,  on  the statements  of the witnesses and on other materials.   There appeared  at  least  nothing  at  that  stage  against   the statement  of  ASI  Gopal  Das  who  had  made  no   earlier contradictory statement.  "The taint of unreliability" could not be attached to his statement even for the reason  given. by  the learned Sessions Judge.  Whether his  evidence  will ultimately be held to be trustworthy will be an issue at the stage  of trial.  In considering the question of bail of  an accused  in a nonbailable offence punishable with  death  or imprisonment  for  life, it is necessary for  the  court  to consider  whether the evidence discloses a prima facie  case to warrant his detention in jail besides the other  relevant factors  referred  to  above.  As a link  in  the  chain  of criminal  conspiracy the prosecution is also relying on  the conduct  of some of the appellants in taking Sunder  out  of Police  lockup for making what is called a  false  discovery and it is but fair that the Panch witness in that behalf  be not allowed to be got at. We  may  repeat  the  two  paramount  considerations,   viz. likelihood  of  the  accused fleeing from  justice  and  his tampering  with  prosecution evidence relate to  ensuring  a fair  trial  of  the  case in a court  of  justice.   It  is essential  that due and proper weight should be bestowed  on these  two  factors  apart from others.   There  cannot  ban inexorable  formula  in the matter of  granting  bail.   The facts  and  circumstances  of  each  case  will  govern  the exercise  of judicial discretion in granting  or  cancelling bail. In  dealing with the question of bail under Section  498  of the  old  Code under which the High Court in that  case  had admitted  the  accused to bail, this Court in The  State  v. Captain Jagjit Singh, (supra) while setting aside the  order of  the  High  Court granting  bail,  made  certain  general observations  with  regard  to the  principles  that  should govern in granting bail in a non-bailable case as follows               "It  (the High Court) should then  have  taken               into account the various considerations,  such               as, nature and seriousness of the offence, the               character of the evidence, circumstances which               are  peculiar  to the  accused,  a  reasonable               possibility of the presence of the accused not               being   secured  at  the   trial,   reasonable               apprehension of witnesses being tampered with,               the  larger  interests of the public  or  the,               State, and similar other considerations, which               arise when a court is asked for bail in a non-               bailable  offence.  It is true that  under  s.               498  of  the Code of Criminal  Procedure,  the               powers  of  the High Court in  the  matter  of               granting bail are very wide; even so where the               offence   is   non-bailable,   various    con-               siderations such as those indicated above have

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             to  be  taken  into  account  before  bail  is               granted in a non-bailable offence."               370 We  are of the opinion that the above  observations  equally apply  to a case under Section 439 of the new Code  and  the legal position is not different under the new Code. We   are  satisfied  that  the  High  Court  has   correctly appreciated  the entire position and the Sessions Judge  did not  at  the stage the case was before him.   We  will  not, therefore,   be   justified  under  Article   136   of   the Constitution  in interfering with the discretion.  exercised by  the High Court in cancelling the bail of the  appellants in this case. Before  closing,  we should, however,  make  certain  things clear.   We find that the case is now before the  committing Magistrate.   We are also informed that all  documents  have been furnished to the accused u/s. 207, Cr.  P.C. of the now Code.   The  Magistrate will, ,therefore,  without  loss  of further  time pass an appropriate order under  Section  209, Cr.P.C. The Court of Session will thereafter, commence trial at an early date and examine all the eye witnesses first and such other material witnesses thereafter as may be  produced by  the  prosecution  as early as  possible.   Trial  should proceed  de die in  diem as far as practicable at  least  so far  as  the eye witnesses and the above referred  to  Panch witness  are concerned.  We have to make this order as  both Mr. Mulla and Mr. Mukherjee submitted that trial will take a long  time  as the witnesses cited in the charge  sheet  are more  than  200  and it will be a  punishment  to  keep  the appellants  in  detention  pending  the  trial.   We   have, therefore,  thought it fit to make the above observation  to which  the learned Addl.  Solicitor General had readily  and very  fairly  agreed.   After  the  statements  of  the  eye witnesses and the said Panch witness have been recorded,  it will  be open to the accused to move the Sessions Judge  for admitting them to bail, pending further hearing. the appeals are dismissed with the above observations.  The Stay  Orders stand vacated. P.H.P.             Appeal dismissed.  371