10 September 2004
Supreme Court
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U.O.I. Vs STATE OF ASSAM

Case number: Crl.A. No.-000608-000608 / 1999
Diary number: 12290 / 1998
Advocates: Vs CORPORATE LAW GROUP


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CASE NO.: Appeal (crl.)  608 of 1999

PETITIONER: Union of India and Anr.                                  

RESPONDENT: The State of Assam                                               

DATE OF JUDGMENT: 10/09/2004

BENCH: ARIJIT PASAYAT & PRAKASH PRABHAKAR NAOLEKAR

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

This is an interesting litigation where Union of India has  questioned the stand taken by the State of Assam. State’s appeal was  accepted by learned Single Judge of the Guwahati High Court. The  controversy lies in a very narrow compass.  The issue is whether an  application under Section 438 of the Code of Criminal Procedure, 1973  (in short the ’Code’) could be filed in respect of offences  contemplated under the provisions of Railway Property (Unlawful  Possession) Act, 1966 (in short the ’Act’). A learned Single Judge held  that the offences were bailable after referring to Section 8 of the  Act.  A review application was filed for suitable modification on the  ground that Section 8 of the Act has not been properly analysed.  Reliance was placed on a decision of learned Single Judge of the Madras  High Court which was reported in brief in State vs. Sundara Pandian  (1979 Crl. Law Journal NOC 194). The review application was rejected on  the ground that a case for review was not made out and the view  originally expressed was correct.

In support of the appeal learned counsel for the Union of India  submitted that the learned Single Judge has not kept in view the  provisions contained in Section 8 in the proper perspective.  The High  Court has erroneously come to hold that the accused had a right to get  bail provided he was willing to offer surety/security. It was held that  only when the accused is not in a position to provide security or  surety then only he can be sent to the Magistrate having jurisdiction.  It was submitted that effect of the proviso to sub-section (2) of  Section 8 has not been kept in view.   

Learned counsel for the State of Assam supported the judgment of  the learned Single Judge in Crl. Original application No.620/1995 and  in Crl. Misc. case no. 219/95.  

The controversy revolves round the provisions contained in  Section 8 of the Act and the same reads as under :                 

"8. Inquiry how to be made against arrested persons  \026 (1) When any person is arrested by an officer of  the Force for an offence punishable under this Act  or is forwarded to him under Section 7, he shall  proceed to inquire into the charge against such  person. (2)     For this purpose the officer of the Force may  exercise the same powers and shall be subject to the

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same provisions as the officer in charge of a police  station may exercise and is subject to under the  Code of Criminal Procedure, 1898 (5 of 1898), when  investigating a cognizable case:

       Provided that \026

(a)     if the officer of the Force is of  opinion that there is sufficient  evidence or reasonable ground of  suspicion against the accused person, he  shall either admit him to bail to appear  before a Magistrate having jurisdiction  in the case, or forward him in custody  to such Magistrate;

(b)     if it appears to the officer of the  Force that there is not sufficient  evidence or reasonable ground of  suspicion against the accused person, he  shall release the accused person on his  executing a bond, with or without  sureties as the officer of the Force may  direct, to appear, if and when so  required before the Magistrate having  jurisdiction, and shall make a full  report of all the particulars of the  case to his official superior.

A bailable offence is defined under Section 2(d) of the Criminal  Procedure Code, 1973 (in short the ’Code’).  A bare reading of the  proviso to sub-section (2) of Section 8 makes the position clear that  three situations are envisaged.  Two of the three situations are  relatable to clause (a) of the proviso. If the officer of the Force is  of the opinion that there is sufficient evidence or reasonable ground  of suspicion against the accused persons he shall (a) either admit him  to bail to appear before a Magistrate having jurisdiction in the case  or (b) forward him in custody to such Magistrate.

Learned Single Judge appears to have taken the view that the  direction that can be given by the officer having jurisdiction of the  case is as a corollary of accused’s right to get bail. The  interpretation is clearly erroneous.  It has been observed that the  discretion to decide whether it is bailable or not cannot be left to  the discretion of the officer.  The view overlooks the clear language  of the proviso and the jurisdiction to exercise the discretion is  statutorily provided.  The exercise of such discretion is also  controlled by the prescription regarding forming of opinion as regards  sufficiency of material or otherwise.   

The controversy can be looked at from another angle.  In Schedule  I of the Code, offences are classified.  Part I deals with offences  under the Indian Penal Code and Part II deals with "Classification of  offences against other laws". Undisputedly the present case is covered  by Part II. While classifying offences on the basis of punishments  prescribed for offences punishable with imprisonment for 3 years and  upwards but not more than 7 years, it is provided that the offences  shall be cognizable and non-bailable.  However, an exception has been  made by Section 5 of the Act, making the offence non-cognizable. Except  that exception, Schedule I of the Code applies under Section 3 of the  Act for the first offence the imprisonment may extend upto five years  and for subsequent offences also similar term is fixed.  Only for  special and adequate reasons to be recorded the minimum can be one year  and two years respectively.                 

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There are two options given to the officer to form opinion i.e.  whether there is sufficient evidence or reasonable ground of suspicion  against the accused persons.  It nowhere deals with the right of the  accused to get bail. The third category is contemplated by clause (b)  of the proviso.  It inter alia, provides that when it appears to the  officer that there is no sufficient evidence or reasonable suspicion,  he shall release the accused person on his executing a bond with or  without surety as the officer of the Force may direct to appear if and  when so required before the Magistrate having jurisdiction and shall  make a full report of all the particulars of the case to his superior  officer. This category deals with a case where there is absence of  sufficient evidence or reasonable ground of suspicion.  In such case  concerned officer has the power to release accused person on his  executing bonds.  Therefore, the High Court was not justified in  holding that all the offences under the Act are bailable. Such view is  contrary to the provisions contained in Section 8 of the Act.  

Learned Single Judge was, therefore, not justified in holding  that since the offences have been specifically made bailable under the  Act, they are bailable.  The conclusion is indefensible. That being so,  we set aside the judgment of the Single Judge in Crl. Original  Application no.620/1995 and Crl. Misc. case no.219/95 dated 27.6.96.     Appeal is allowed.