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PETITIONER: RATILAL BHANJI MITHANI

       Vs.

RESPONDENT: ASSTT.  COLLECTOR OF CUSTOMS, BOMBAY & ANR.

DATE OF JUDGMENT: 04/05/1967

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. WANCHOO, K.N. (CJ) SHELAT, J.M. BHARGAVA, VISHISHTHA MITTER, G.K.

CITATION:  1967 AIR 1639            1967 SCR  (3) 926  CITATOR INFO :  R          1982 SC 710  (21)

ACT: Constitution   of  India,  Arts.  21  and   225-High   Court cancelling bail in exercise of inherent powers-Whether  such powers  violative  of Art. 21-Or whether  ’law’  within  the meaning of Art. 21.

HEADNOTE: The  appellant  along  with others was being  tried  for  an offence under s. 120B of the Indian Penal Code read with  s. 167  (81)  of  the Sea Customs Act, 1878, and s.  5  of  the Imports  and Exports Control Act, 1947.  Although he was  at first  released  on bail by the Presidency  Magistrate,  the High Court, by an order dated March 6, 1967 in the  exercise of  its inherent powers cancelled the previous bail  orders, as it found that the appellant was interfering and tampering with  certain  foreigners whom the prosecution  intended  to examine  as  witnesses.  The High Court,  however,  reserved liberty to the appellant to move the court on or after  June 26,  1967 far a fresh order of bail as it  was  contemplated that within the time so fixed, the prosecution would examine the foreign witnesses. In  the appeal to this Court, the appellant  challenged  the order  of  the High Court on the ground  that  the  inherent powers  of  the  High  Court  were  not  conferred  by   any legislation or statute, and the deprivation of the  personal liberty  of the appellant by an order of the High  Court  in the exercise of its inherent powers was violative of Art, ’- II of the Constitution HELD : The High Court ’has the inherent power to cancel bail granted  to  a person accused of a bailable  offence.   This jurisdiction  should  be invoked in exceptional  cases  only when  the High Court is satisfied that the ends  of  justice will be defeated unless the accused is committed to custody. [928A-B] The  order  of  the  High  Court  cancelling  the  bail  and depriving   the  appellant  of  his  personal  liberty   was according to procedure established by law was not  violative

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of Art. 21. [931C] The  existing  powers and jurisdiction of  the  High  Court, including  its  inherent  powers,  had  been  confirmed  and continued  by s. 223 of the Government of India  Act,  1935, and Art. 225 of the Constitution.  When the Constitution  or any  enacted  law has embraced and  confirmed  the  inherent power   and  the  jurisdiction  of  the  High  Court   which previously  existed,  that power and  jurisdiction  has  the sanction of an en-acted ’law’ within the meaning of Art. 21. [929H; 93A-B] Case law discussed. [On   the  facts  the  court  noted  that  there  had   been unnecessary   delay  in  the  examination  of  the   foreign witnesses and directed that the appellant should be released on bail on June 26, 1967.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 64 of 1967.  927 Appeal  by special leave from the judgment and  order  dated March 3, 1967 of the Bombay High Court in Criminal  Applica- tion No. 24 of 1967. A . K. Sen, S. G. Sheth and I. N. Shroff, for the appellant. N. S. Bindra and S. P. Nayyar, for the respondents. The Judgment of the Court was delivered by Bachawat, J. The appellant along with other persons is being tried  for  an offence under Sec. 120B of the  Indian  Penal Code  read with Sec. 167(81) of the Sea Customs  Act,  1878, and  Sec.  5 of the Imports and Exports Control  Act,  1947. The offence is bailable.  The appellant was released on bail under orders of Magistrates dated May 11, 1960 and April  1, 1961.   A large number of witnesses have been  examined  but the  trial  has not yet been concluded.  By an  order  dated March  3/6, 1967, the High Court of Maharashtra, Bombay,  in the exercise of its inherent jurisdiction cancelled the bail orders and directed him to surrender to his bail.  From this order, the present appeal has been filed by special leave. In  Talab  Haji Hussain v. Madhukar Purshottam  Mondkar  and another(1), this Court held that a High Court has the  inhe- rent power to cancel a bail granted to a person accused of a bailable offence where such an order is necessary to  secure the  ends of justice or to prevent the abuse of  process  of any Court, and this power is preserved by Sec. 561-A of  the Code of Criminal Procedure. On  behalf of the appellant it was strenuously  argued  that this case was wrongly decided.  Having heard full arguments, we find no reason for departing from our earlier decision. In  the  matter of admission to bail, the Code  of  Criminal Procedure  makes  a distinction between  bailable  and  non- bailable offences.  The grant of bail to a person -  accused of a non-bailable offence is discretionary under Sec. 497 of the  Code  and  the person released on  bail  may  again  be arrested  and committed to custody by an order of  the  High Court,  the Court Session and the Court granting  the  bail. Under  See. 498 of the Code the High Court and the Court  of Session  may release any person on bail and by a  subsequent order  cause any person so admitted to bail to  be  arrested and  committed to custody.  A person accused of  a  bailable offence  is  treated differently; at any  time  while  under detention  without  a  warrant  and  at  any  stage  of  the proceedings before the Court before which he is brought,  he has  the right under Sec. 496 of the Code to be released  on

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bail.    The  Code  makes  no  express  provision  for   the cancellation   of   a   bail   granted   under   Sec.   496. Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is (1)  [1958 S.C.R. 1226] 9 2 8 intimidating,  bringing  or tampering with  the  prosecution witnesses  or is attempting to abscond, the High  Court  has the  power to cause him to be arrested and to commit him  to custody for such period as it thinks fit.  This jurisdiction springs  from  the over-riding inherent powers of  the  High Court and can be invoked in exceptional cases only when  the High  Court is satisfied that the ends of justice  will  be, defeated  unless the accused is committed to  custody.   For the  reasons given in Talab Haji Hussain’s case(1), we  hold that  this  inherent power of the High Court exists  and  is preserved  by Sec. 561-A of the Code.  The person  committed to custody under the orders of the High Court cannot ask for his  release on bail under sec. 496, but the High Court  may by a subsequent order admit him to bail again. Counsel for the appellant argued that the inherent power  of the  High  Court  is not conferred  by  any  legislation  or statute, and the deprivation of the personal liberty of  the appellant  by an order of the High Court in the exercise  of its  inherent  -powers is violative  of  the  constitutional protection under Art. 21 of the Constitution. Art. 21 is in these terms               "No  person shall be deprived of his  life  or               personal liberty except according to procedure               established by law." The  term ’law’ in Art. 21 was the subject of  an  elaborate discussion  in  A.  K. Gapalan v. The  State  of  Madras(-). Kania  C.J. at pp. 111-113 said that the term ’law’ in  that Article  must mean the law of the State or enacted law,  and not  rules of natural justice.  Fazl Ali J. who was  in  the minority,  said at page 169 that ’law’ must include  certain principles of natural justice.  Patanjali Sastri J. at p.  1 99  said that ’law’ in Art. 21 means positive or  State-made law’.   Mahajan J. at page 226 expressed no opinion  on  the point.  Mukherjea J. at p. 278 said that "in article 21  the word ’law’ has been used in the sense of State-made law  and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice." Das J. said at page  309  that  "there  is no  scope  for  introducing  the principles  of natural justice in Article 21 and  ’procedure established  by law’ must mean procedure established by  law made by the State which, as defined, includes Parliament and the Legislatures of the States." As explained by four of the learned  Judges in A. K. Gapalan’s case(1),  the  expression ’law’ in Art. 21 means enacted or Statemade law, and not the general principles of natural _justice. In  Pandit  M. S. M. Sharma v. Shri Sri  Krishna  Sinha  and others(1),  this Court held that a deprivation  of  personal liberty  of any person by a Legislative Assembly of a  State in exercise (1)   [1958]  S.C.R.  1226.                              (2) [1950] S.C.R. 88. (3)  [1959] Stipp.  I S.C.R.8 6.  929, of  its power to punish for its contempt is according  to  a procedure  established by law and does not  contravene  Art. 21.   Art.194(3)  of  the Constitution  provides  that  "the powers,  privileges  and  immunities  of  a  House  of   the Legislature  of  a  State,  and  of  the  members  and   the committees of a House of such Legislature, shall be such  as

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may from time to time be defined by the Legislature by  law, and,  until  so  defined, shall be those  of  the  House  of Commons of the Parliament of the United Kingdom, and of  its members   and  committees,  at  the  commencement  of   this Constitution."   Article   194(3)  thus   confers   on   the Legislative  Assembly.  of  a State  the  existing  inherent powers enjoyed by the British House of Commons including the power  to punish for its contempt.  Art. 208 (1  )  empowers the  Legislative  Assembly  to  make  rules  regulating  its procedure.   As explained in Pandit Sharma’s case(1),  these powers  and  the procedure prescribed by the rules  has  the sanction  of  enacted  law and an  order  of  committal  for contempt   of  the  Assembly  is  according   to   procedure established  by  law.  Das C.J., speaking for  four  learned Judges  said  at  page 861 : "Art,  194(3)  confers  on  the Legislative Assembly those powers, privileges and immunities and Art. 208 confers power on it to frame rules.  The  Bihar Legislative  Assembly  has framed rules in exercise  of  its powers under that Article.  It follows, therefore, that Art. 194(3)  read  with  the rules so framed has  laid  down  the procedure  for  enforcing  its powers,  privileges  and  im- munities.   If, therefore, the Legislative Assembly has  the powers,  privileges and immunities of the House  of  Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the  Committee of  Privileges, such deprivation will be in accordance  with procedure  established  by  law and  the  petitioner  cannot complain  of  the breach, ’I ’Actual or threatened,  of  his fundamental  right  under  Art. 21." Subba  Rao  J.  in  his minority  judgment  in that case and the  Court  in  Special Reference  No.  1  of 1964 2 did not  say  anything  to  the contrary an this point. Now the question is whether the inherent power of tile  High Court  is conferred by or has the sanction of  enacted  law. From  its  very inception the High Court has  possessed  and enjoyed  its inherent powers including the power to  prevent the   abuse  of  the  process  of  any  Court   within   its jurisdiction  and  to  secure the ends  of  justice.   These powers  inherent in the High Court and spring from its  very nature and constitution as a court of superior jurisdiction. All  the existing powers of the High Courts  were  preserved and continued by legislation from time to time,.  Sec. 561-A of  the  Criminal Procedure Code declared that  "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 (1) [1959] Supp.1 S.C.R. 806. (2) [1965] 1 S.C.R. 413. 9 30 to  give effect to any order passed under this Code,  or  to prevent  the abuse of process of any Court or  otherwise  to secure the ends of justice." The section was inserted in the Code  by Act XVIII of 1923 to obviate any doubt  that  these inherent  powers  have  been taken away ’by  the  Code.   In terms,  this  section  did not confer  any  power,  it  only declared  that nothing in the Code shall be deemed to  limit or  affect the existing inherent powers of the  High  Court, see King Emperor v. Khwaja Nazir Ahmad(1).  Then came  other enactments  which were framed differently.  Sec. 2 2 of  the Government of India Act, 1935, provided :               "Subject  to  the provisions of this  Part  of               this  Act, to the provisions of any  Order  in               Council  made under this or any other Act  and               to   the   provisions  of  any  Act   of   the               appropriate  Legislature enacted by virtue  of

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             powers  conferred on that Legislature by  this               Act,   the   jurisdiction  of  and   the   law               administered in, any existing High Court,  and               the respective powers of the judges thereof in               relation  to the administration of justice  in               the  court, including any power to make  rules               of  Court and to regulate the sittings of               the Court and of members thereof sitting alone               or  in division courts, shall be the  same  as               immediately  before the commencement  of  Part               III of this Act." The  Section enacted that the jurisdiction of  the  existing High Courts and the powers of the judges thereof in relation to  the  administration of justice "shall be"  the  same  as immediately before the commencement of Part III of the  Act. The  statute confirmed and re-vested in the High  Court  all its existing powers and jurisdiction including its  inherent powers.   Then  came  the Constitution.   Art.  225  of  the Constitution provides :               "225.   Subject  to  the  provisions  of  this               Constitution and to the provisions of any  law               of the appropriate legislature made by  virtue               of  powers  conferred on that  Legislature  by               this  Constitution, the jurisdiction  of,  and               the  law  administered in, any  existing  High               Court,  and  the,  respective  powers  of  the               Judges    thereof   in   relation    to    the               administration   of  justice  in  the   Court,               including any power to make rules of Court and               to  regulate the sittings of the Court and  of               members  thereof sitting alone or in  Division               Courts,  shall  be  the  same  as  immediately               before the commencement of this Constitution. The  proviso to the article is not material and need not  be read.   The  irticle  enacts that the  jurisdiction  of  the existing High Courts and the powers of the judges thereof in relation to administration of justice "shall be" the same as immediately  before the cornmencement of  the  Constitution. The Constitution confirmed and (1)  L.R. 61 I.A. 203,213.  931 re-vested  in  the High Court all its  existing  powers  and jurisdiction including its inherent powers, and its power to make  rules.  When the Constitution or any enacted  law  has embraced and confirmed the inherent powers and  jurisdiction of  the High Court which previously existed, that power  and jurisdiction has the sanction of an enacted saw" within  the meaning of Art. 21 as explained in A. K. Gopalan’s(l)  case. The inherent powers of the High Court preserved by Sec. 561- A of the Code of Criminal Procedure are thus vested in it by "law"  within  the meaning of Art. 21.   The  procedure  for invoking the inherent powers is regulated by rules framed by the  High Court.  The power to make such rules is  conferred on the High Court by the Constitution.  The rules previously in  force  were  continued in force by Article  372  of  the Constitution.   The  order of the High Court  canceling  the bail and depriving the appellant of his personal liberty  is according  to  procedure  established  by  law  and  is  not violative of Art. 21. The  High  Court cancelled the previous bail orders,  as  it found that the appellant was intimidating and tampering with certain  German  citizens whom the prosecution  intended  to examine  as  witnesses.  This finding is challenged  by  the appellant.   Normally, it is not the practice of this  Court to  re-examine findings of fact in an appeal under Art.  136

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of  the Constitution.  Having heard full arguments,  we  are not  inclined  to interfere with the findings  of  the  High Court.  The High Court reserved liberty to the appellant  to move  the High Court on or after June 26, 1967, for a  fresh order of bail.  It was contemplated that within the time  so fixed,  the prosecution will examine the  German  witnesses. On March 13, 1967, the appellant surrendered to his bail and since then he is in jail custody.  The prosecution has  been given ample opportunity to examine the witnesses before June 26, 1967, without any interference from the appellant.  From the correspondence placed before us, it appears that  during the  pendency of this appeal the prosecution  has  refrained from taking steps for the examination of the German witness. This Court did not pass any order staying the proceedings or admitting   the  appellant  to  bail.   The  delay  in   the examination  of  the  witnesses is caused  entirely  by  the laches  of the prosecution.  Even if the prosecution  cannot now examine the witnesses by June 26, 1967, we see no reason why the appellant should remain in custody after that  date. We direct that the appellant be released on bail on June 26, 1967, whether or not the prosecution witnesses are  examined by that date.  The bail will be given to the satisfaction of the  Presidency Magistrate, 23rd Court,  Esplanade,  Bombay, before   whom  the  case  is  pending.   Subject   to   this modification, the appeal is dismissed.                         Order modified and Appeal dismissed. R.K.P.S. (1)  [1950] S.C.R. 88. 932