Patna High Court
Dhena Suren vs The State on 1 November, 1976
Equivalent citations: 1977CRILJ781
ORDER Madan Mohan Prasad, J.
1. This is an application for bail. It appears that a first information was lodged on the 11th of May, 1975, alleging, in so far as this petitioner is concerned, that he had gone to a certain field in possession of the prosecution party along with 40 to 50 persons, all with bows and arrows and other weapons, and ordered them all to assault the prosecution party, himself shooting an arrow which hit one Soukat Ali in the neck, resulting in his death, and several other persons were also assaulted. As a result, the petitioner was arrested on 13th of May, 1975. He filed a petition for bail, and by an order dated the 21st of July, 1975, in view of the provisions of Section 167(2) of the Code of Criminal Procedure, bail was granted to the petitioner "till submission of final form". On the 20th of December, 1975, charge-sheet was submitted by the police against the petitioner and others. On that very date this case was transferred to a Magistrate, Mr. J.L. Chowdhary. On the 4th of March, 1976, the petitioner filed an application that he had been granted bail and should be allowed to continue on the same bail; and order to that effect was passed by the Magistrate. Thereafter, it appears that the case came to be in seisin of another Magistrate who, it is said, succeeded Mr. Chowdhary on his transfer. On the 11th of May, 1976, some other accused prayed for bail on the ground that the main assailant, namely, the petitioner himself had been released on bail. The learned Magistrate rejected their prayer and considered the case of the petitioner as well. He ordered cancellation of the bail and directed him to be taken in custody. The accused then absented himself, and on the 26th of May 1976 the order of cancellation of bail was reiterated and non-bailable warrant of arrest was issued against him and also notice to the bailors. The petitioner then went up to the Sessions Judge for grant of bail, who by his order dated the 15th of June, 1976, refused the prayer. Hence this application.
2. Mr. Samaiyar, learned Counsel for the petitioner, has raised the only point that the bail once granted under Section 167(2) of the Code could not be cancelled by the Magistrate who came to be in seisin of the case subsequently on the ground that final form had been submitted against the petitioner. In this connection, it has also been urged that the initial order granting bail limiting the same "until the submission of the final form" was itself illegal. Reliance has been placed on two decisions of a learned Single Judge of the Allahabad High Court in Ram Murti v. State 1976 Cri LJ 211 (All) and Ram Pal Singh v. State of U.P. 1976 Cri LJ 288 (All).
3. It may be stated at the outset that the petitioner made no grievance against the condition in the order by which he was allowed bail, though conditional, on the 21st of July, 1975. The facts of the case reported in 1976 Cri LJ 288 (All) were different, inasmuch as the petitioners had gone up to that Court against the order by which it was made conditional. In the other case, 1976 Cri LJ 211 (All) also the facts were different. No reason had been assigned by the Magistrate for cancelling the bail, and it was done only because final form had been submitted. The two decisions have, therefore, no application to the present case.
4. In the present case, the bail order being conditional under Section 167(2) of the Code, the learned Magistrate found that bail had not been granted on merits, but because final form had not been submitted till then, and that after the submission of the final form the petitioner had never made any prayer for bail on merit and considering the case on merits, it appeared from the final form, and the first information report, that the allegations against the petitioner were very serious, because he took a leading part in the crime and gave the fatal blow to the deceased. On merits, therefore, he was not inclined to allow the petitioner to remain on the bail granted to him initially and directed him to be taken in custody.
5. Even if it be assumed that the condition, namely, grant of bail for a particular period could not be laid down, and assuming that the order be deemed to be unconditional, the question arises whether in case where bail has not been granted on the merit of the case but in view of the provision, contained in Section 167(2) of the Code, it is open to the Magistrate to cancel the bail, if he finds, on merit, from the evidence discovered subsequently that the person concerned should not be allowed to remain enlarged on bail. The point appears to be one of first impression. Counsel for the parties have not been able to find out any decision on the point except the ones referred to above. The decisions of the learned single Judge of the Allahabad High Court, and I say so with very great respect, do not show the consideration of the question as to whether subsequent discovery of evidence against a person can be taken into account for the cancellation of bail. The learned Judge has held that the grounds for cancellation must be normal grounds which have been accepted so far. The fact cannot, however, be lost sight of that this provision of Section 167(2) is a new provision, not to be found in the earlier Codes. There can also be no dispute that a bail granted under Section 167(2) is irrespective of the merits and only en the ground that a person cannot be detained for more than sixty days during investigation. It is obvious that such an order of bail is an order before the submission of he final form. It is also well known that final form is submitted after the police has collected all the evidence available and formed its opinion as to whether the person complained against should be sent up for trial It seems to me, therefore, that in view of the changed nature of things the grounds which were available to the Courts for the cancellation of the bail prior to the Code of 1973 are not exhaustive now. I may mention here that even under the old law, subsequent discovery of evidence against an accused already granted bail was a good ground for rescission of the order (see Emperor v. B.B. Singh AIR 1943 Oudh 419 : 44 Cri LJ 770. It is clear that the change brought about in 1973 made it mandatory for the Courts to grant bail, in cases which attract the provisions of Section 167(2), I have not the least doubt that it should be well within the jurisdiction of the Court to determine at later stage whether or not, in view of the discovery of further material against the accused and the submission of charge-sheet, he should be allowed to remain on the bail granted previously. I am, therefore, inclined to think that even though bail had been granted by one Magistrate under Section 167(2) of the Code, it was open to the other Magistrate to cancel the bail on the basis of materials available to him after the submission of the final from (charge-sheet) against the petitioner.
6. it is true that proviso (a) to Section 167(2) of the Code lays down that every person released on bail under this section shall be deemed, to be so released under the provisions of Chapter XXXIII for the purpose of that Chapter, Obviously, this order will be deemed to be an order under Chapter XXXIII. It will appear, however, that the powers of cancellation of the bail which the Courts had under Section 497(5) of the old Code are still there contained in Sub-section (5) of Section 437, of the new Code. The Legislature has not prescribed specifically as to what are the grounds on which a person already on bail may be re-arrested and committed to custody. The old provision had, however, been widely interpreted by Courts, but, as I have said in the situation which obtains now after the passing of the new Code, namely, release of a person on a ground irrespective of the merits of the case, the law has to be differently interpreted, keeping in view the change brought about. I find it difficult to accept that the intention of the Legislature was that even though a person was granted bail, irrespective of the merits, because of the delay in investigation, such an order is not to be interfered with at any later stage. I find support in the view which I have taken from an observation of Untwalia, J., speaking for the Supreme Court in Natbar Parida v. State of Orissa. 1975 BECJ 380 : 1975 Cri LJ 1212 (SC). The learned Judge said;
Of course, it has been provided in proviso (a) that the accused released on bail under Section 167 will be deemed to be so released under the provisions of Chapter XXXIII and for the purposes of that Chapter. That may empower the Court releasing him on bail, if it considers necessary so to do, to direct' that such person be arrested and committed to custody as provided in Sub-section (5) of Section 437 occurring in Chapter XXXIII.
7. Coming now to the facts of the instant case, it appears, as I have already stated, that the Magistrate initially allowed bail under Section 167(2) of the Code, the next Magistrate, to whom it was transferred, without applying his mind to the merits of the case, allowed him to remain on the same bail; but ultimately the Magistrate who came to be in seisin of the case considered the case on merits and cancelled the bail. Irrespective, therefore, of the question as to whether the Magistrate had the right to attach a condition to the initial bail and whether it was necessary for the petitioner to make a fresh prayer for bail after the submission of the final form, the fact remains that the order dated the IIth of May. 1976, was passed on merits of the case against the petitioner which disentitled him to remain on bail already granted to the petitioner. I am of the view, that if there are good materials, the order granting bail under Section 167(2) may be reconsidered and the bail cancelled. In the present case, the petitioner is said to have given a fatal blow, leading a mob of about fifty persons which attacked several persons, and these allegations have found support from the investigation, leading ultimately to the submission of the charge-sheet. There were, therefore, good reasons for the learned Magistrate to cancel the bail already granted to the petitioner.
8. For the reasons aforesaid, I do not find any justification for setting aside the order of the Magistrate or for issuing an order that the petitioner be released on bail. This application is accordingly dismissed.