Gujarat High Court
Sukar Narayan Bakhia vs Income Tax on 6 August, 1982
JUDGMENT
1. Both these petitions are filed against the order of the learned Metropolitan Magistrate, 10th Court, Ahmedabad, in Criminal Case No. 3041 of 1975, by which the learned Magistrate was pleased to release the petitioner (Original accused No. 13) Sukar Narayan Bakhia (hereinafter referred to as "the concerned accused") on bail with various conditions.
2. In Criminal Revision Application No. 432 of 1982, the conditions are attacked on the ground that they are too severe and request is made that the conditions be relaxed, especially pertaining to giving of, two solvent sureties of Ahmedabad City proper to the tune of Rs. 50,000/- each. The second petition, being Criminal Revision Application No. 433 of 1982, is filed by Original complainant Mr. R. R. Shah, Assistant Commissioner (Acquisition Range), Income-Tax, Ahmedabad making a grievance against the release of the concerned accused on bail even with the conditions attached to the bail order.
3. The case has a chequered history. A complaint was filed by the Income-Tax Department in 1974 against the concerned accused and 22 others, for the offences punishable under Sections 193, 199, 183 and 120B of the Indian Penal Code, on the ground that they attempted to convert their black-money into white money by nefarious means of cross word puzzle. Some of the accused, including the concerned accused, were detained either under MISA or COFEPOSA. Quite often, some of them remained absent and the proceedings could not be started. So, it is a fact that till August, 1982, the case has not started at all. It is a matter of record that on various adjournments, the concerned accused remained present. It is also a matter of record that sometimes when the accused remained absent request for exemption from his attendance in Court was once or twice granted. It is also a matter of record that due to his absence, the Court was required to issue non-bailable warrants, and even in spite of that, he could not be arrested or even brought before the Court, and ultimately the last non-bailable warrant, which, according to the record, is the fifth in number, was issued on 27-7-1982, and on the strength of that warrant, the concerned accused was arrested on 31-7-1982 and was brought before the Court.
4. After the non-bailable warrant was issued on 27-7-1982, the concerned accused alongwith his wife Manekben submitted an application for bail on 28-7-1982 requesting the Court to release them on bail giving various grounds, to which reference will be made at an appropriate stage, because they are the grounds on which Mr. H. K. Thakore, learned Advocate for the concerned accused, has laid much stress to show the circumstances under which the concerned accused could not remain present.
5. It should be noted that the wife of the concerned accused is Manekben. Both of them had applied and the learned Metropolitan Magistrate, in his order dt. 28-7-1982 specifically observed that so far as Manekben is concerned, she is pregnant and due to deliver a child and, therefore, the warrant against her was ordered to be stayed till 15-10-1982 on the condition that she should deposit an amount of Rs. 25,000/- towards the bail amount upto 31-7-1982 and that Manekben should give an undertaking to the Court through her Advocate to remain present in Court on 15-10-1982, and if she would not remain present on that day, amount will be forfeited to the State. The learned Magistrate further observed in the first order that the case was seven years old. Both the accused were absconding. The clear Gujarati words are (Gujarati words not reproduced) and that the concerned accused was a proclaimed absconder. A request was made on behalf of the prosecution to hear the application of the concerned accused on 2-8-1982 : this request was granted because it was impressed before the Court that on the strength of various rulings, one of which was 41 Criminal Law journal 251 it was urged that even in bailable offence the Court is entitled to refuse bail taking into consideration the circumstances pertaining to the case. Therefore, this matter pertaining to the release on bail of the concerned accused was heard afterwards i.e. on 2-8-1982 and by the order dated 3-8-1982, as stated earlier, the learned Magistrate was pleased to release the concerned accused on bail. Therefore, the original complaint has come against that order by way of Criminal Application No. 433 of 1982.
6. On behalf of the complainant, it is the submission of Mr. H. M. Mehta, Central Government Standing Counsel, that the learned Magistrate has committed an error in granting bail to the concerned accused even in spite of the fact that due to the absence of the concerned accused and some of the other accused throughout the period of seven years, the case did not proceed at all. The learned Magistrate, in his impugned order has observed making reference to some facts on record. Accused No. 23 Haribhai Vallabhbhai had presented himself before the Court after remaining in jail for one day, and thereafter he was released on bail of Rs. 5,000/- as cash security by an order dated 27-5-1982. In para 5 he has specifically observed that the concerned accused and his wife Manekben accused No. 14) were not remaining present before the Court. On 28-7-1982 application on behalf of both the accused was given to cancel the non-bailable warrant against them. He has referred to the order passed for Manekben.
7. After considering the arguments, the learned Magistrate observed that there are about 22 other accused in the case. Others are on bail. There is allegation of an attempt to convert black money of Rs. 48 lakhs to white money, and it is stated that the concerned accused is involved for an amount of Rs. 8 lakhs. He also considered that accused Manekben is not in a position to appear before the Court prior to 15-9-82. In fact, this seems to have been considered by the learned Magistrate to appreciate that the trial would not start till 15-9-1982. But it seems that he has committed a mistake because as per his earlier order, Manekben has to appear in Court on 15-10-1982.
8. The learned Magistrate also considered that the offences with which the accused are charged are bailable offences and the main evidence is documentary and, therefore, there is no possibility of any tampering with the evidence, and, therefore, so long as the offences are not proved, it is not proper to penalise the concerned accused by taking strict view. With these considerations, he passed the impugned order.
9. It is the submission of Mr. H. K. Thakore, learned Advocate for the concerned accused, that even after having considered the fact that the case is seven years old, and after having considered the fact that the concerned accused and his wife were proclaimed absconders and were not available before the Court to proceed with the trial, the learned Magistrate extended the period of execution of non-bailable warrant against Manekben and then after due consideration granted bail to the concerned accused and, therefore, now there are no special and compelling reasons to cancel the order.
10. Courts have quite often observed in case of granting or refusing bail, that the main purpose of requiring an assurance in the form of bail and surety from the accused is to see that he remains available for the trial. Under various circumstances, which have not the factual magnitude as in the instant case, Courts have always observed that if there is possibility of accused being available for the trial and also there is no possibility of his jumping out the bail, then, unless there are special compelling circumstances, the Courts should not refuse bail. These precedents clearly show that the first duty of the Court in granting or refusing bail would be to see whether there is possibility of the accused being available for trial in a smooth way and also whether there is any possibility of the accused jumping out the bail or not remaining present in the Court even in spite of his having given bail and surety. It is, therefore, necessary in the instant case to consider the contention by keeping in mind the above referred to principles. Along with that, it cannot be ignored that this is a bailable offence. Every person accused of a bailable offence has a right to be released on bail and it is the duty of the Police Officers as well as the Court to release the person accused of a bailable offence on bail and not to detain him. This requirement, so far as the present case is concerned, was completely fulfilled by the Court, when after the complaint was filed on 27-3-1974, the Court of the Metropolitan Magistrate had issued bailable warrant for Rs. 1,500/- for the concerned accused directing the Police at Daman to take surety bond from him for an amount of Rs. 1,500/- with an undertaking that he would remain present before the Metrapolitan Magistrate, 10th Court, Ahmedabad on 15-4-1974, etc. So, apparently bail was granted because this was a bailable offence and the concerned accused had to remain present in Court on the strength of the undertaking given. Thereafter, because the concerned accused did not remain present, warrants were issued.
11. Extract from the Rozname is produced before me that out 19-9-1978 as the concerned accused was absent, non-bailable warrant was issued. Thereafter, on four adjournments the concerned accused remained present. Then he was absent on two occasions. Then he was present on two occasions, and on three occasions either the Magistrate was on leave or the matter was adjourned. Thereafter, on nine occasions the concerned accused was absent and therefore, on 17-3-1980 non-bailable warrant was issued against him as well as other accused who were absent. Even thereafter on five occasions the concerned accused was absent. On 16-9-1980 because the concerned accused was absent, his Advocate Mr. Gohel assured the court to produce the absentee accused on 30-9-1980. On 30-9-1980 the concerned accused was absent and so it was directed that a non-bailable warrant be issued, which was issued on 9-10-1980. So, this was a third time when the non-bailable warrant was issued. Even then, on 27-10-1980 the concerned accused was absent. Thereafter, on 5-11-1980 non-bailable warrant against the concerned accused was delivered to the Collector, Daman. Thereafter, also the concerned accused remained absent, and the non-bailable warrant was handed-over to the Collector, Daman, and was also affixed on the residence of the concerned accused. On 5-11-1981, non-bailable warrant was also delivered to S.D.P.O. Daman, but thereafter also either it could not be served, or to put in the terms of Mr. Thakore for the concerned accused, though the concerned accused was present at Daman, it was not served, and in terms of Mr. Mehta, it could not be served, and the accused successfully eluded the warrant. Whatever it may be, the warrant could not be served. Again on 27-7-1982 non-bailable warrant was issued by the Magistrate. This was the fifth non-bailable warrant. As this warrant was issued on 27-7-1982, an application was immediately made before the execution of the warrant on 28-7-1982. This long chain of circumstances is relied on by Mr. Mehta to show the peculiar case wherein the court should have exercised powers of refusing or not granting bail even in bailable offence.
12. As against this, it is the submission of Mr. Thakore that on all occasions it cannot be said that the concerned accused was in a position to attend the Court and he did not attend. It is his submission that in fact, the concerned accused could not remain present in court due to circumstances beyond his control, as mentioned in the application to the Magistrate. It is his submission that in the first week of November, 1980, order to detention under the COFEPOSA was issued by Government of Gujarat and therefore, the concerned accused had to file a writ petition in the Calcutta High Court challenging the said order, and by an order of the Calcutta High Court he was directed to stay at his given address at Calcutta, and this order was passed on 8-11-1980 and 11-12-1980 and, therefore, he could not go out of Calcutta. Thereafter, it is the case that the concerned accused was arrested by the Government of Goa, Daman Diu under the COFEPOSA on 8-4-1982 and was detained at Aguada (Goa) Central jail. Thereafter the Advisory Board constituted under the COFEPOSA by its order dated 30-5-1982 directed the concerned accused should be released from Aguada (Goa) Central Jail. But as the concerned accused was to be detained under the Detention order passed by Government of Gujarat, the wife of the concerned accused moved the J.C's. Court of Goa, Daman and Diu at Panaji under Article 226 of the Constitution and obtained a stay order. However, the Judicial Commissioner of Goa, Daman and Diu directed the concerned accused not to leave Daman, and accused No. 14 (wife of the concerned accused) was directed to produce the concerned accused in the Court of Judicial Commissioner at Panaji on 31-7-1982. It is also the contention of Mr. Thakore that the concerned accused was directed to report to the Dy. S.P., Daman every Monday from the date of the older till the date of hearing. This order was passed on 14-7-1982. It is, therefore, submitted that under these circumstances, the concerned accused could not remain present in court.
13. Now, it cannot be overlooked that the concerned accused had engaged an Advocate. He could have remained in communication with his Advocate as he remained on earlier occasions, as is very clear that quite often his Advocate has given applications for time, for exemption and also an under-taking to produce the concerned accused and other accused in Court. But at no time any specific averment was made except on one occasion when the Advocate for the prosecution submitted an application to adjourn the matter for two months, as some of the accused were detained either under MISA or COFEPOSA. When it is the duty of the accused person to remain present in Court in order to facilitate the proper and smooth conduct of a pending criminal case, it is also his duty to inform his Advocate. The concerned accused or his wife at all times had intelligence, understanding and advice to file petitions pertaining to detention order passed against them in the Calcutta High Court. They had the knowledge, instructions and understanding to move against the order of Government of Gujarat, in Judicial Commissioner's Court, Goa, Daman and Diu at Panaji, and in order to get exemption for remaining absent from the Ahmedabad Court and now it is attempted to be shown that it was a mistake that he could not very well understand the magnitude, to inform about his inability to attend the Court.
14. Mr. Thakore has taken specific objection to the petition filed by the complainant. First objection is that this is a revision petition. If the learned Magistrate has passed the impugned order for which he has jurisdiction and discretion, this Court by exercising revisional powers should not interfere with that. In order to support his argument, Mr. Thakore referred me to the decision of the Supreme Court in State of Orissa v. Nakula Sahu - AIR 1979 Supreme Court 663. These were of course the powers to be exercised by the Court under the Code of Criminal Procedure, 1898 (hereinafter referred to as "the Old Code") under Section 439 read with Section 435. It has been observed that although revisional power of the High Court under Section 439 read with Section 435 is as wide at the power of the Court of appeal under Section 423 of the old code, it is now well settled that normally the jurisdiction of the High Court under Section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error in a point of law which has consequent resulted in flagrant miscarriage of justice. In spite of the wide language of Section 435, the It High Court is not expected to act under Section 435 or Section 439 if it is hearing an appeal. It is further observed that where neither in trial Court nor the sessions Court committed any error of fact or law is arriving at their conclusions and the High Court upset their concurred findings in exercise of the revisional jurisdiction and acquitted the accused the order of acquittal passed by the High Court was set aside. It should be noted that this was a case where the question of acquittal of a person on evidence on record and appreciation of that evidence on record was concerned. It was not a case where appreciation of circumstances were available before the Court and the court had exercised discretion in such a way that ultimately ends of justice are met.
15. When the proper occasion would arise, I am going to refer to the details, but the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam Modhkar - AIR 1958 Supreme Court 376, has in para observed :
"The primary object of Criminal procedure is to ensure a fair trial of accused person, but a fair trial has naturally two objects in view. It must be fair to the accused passon and must also be fair to the prosecution."
16. It is, therefore, necessary that when the question of considering the accused person to be released on bail arises, the court has to consider whether there would be scope for fair trial either for the accused or the prosecution. If by any act, the scope of fair trial is curtailed, then can it be said that the High Court in revisional powers could not interfere. In my opinion, it cannot be so, and if circumstance demand Court must interfere.
17. It should be noted that there is power to the sessions court and the High Court under Section 439(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the new code") to direct a person released on bail under Chapter XXXIII to be arrested and commit him to custody. This chapter contains Section 436 which refers to person other than a person accused of a non-bailable offence, meaning a person accused of a bailable offence. So the power under section 439(2) is also invoked by the complainant by this petition. But in order to obviate the difficulty that the concerned accused was involved in a bailable offence, and then in order to further support the contention that in such a case also bail can be refused, specific reliance is placed on the provisions of section 436(2) of the new code, which is to be the following effect :
"436. (2) Notwithstanding anything contained in sub-section (1) where a person has failed to comply with the condition of the bail bond as regards the time and place, of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon the person bound by such bond to pay the penalty thereof under section 446."
18. Now, in this sub-section (2) of section 436 of the new code, if a person failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, and if on a subsequent occasion in the same case the accused appears before the Court or is brought in custody, any such refusal would be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof. So, this provision is brought in help by the prosecution to show that even for a bailable offence under Section 436(2) of the new code, powers of the Court to refuse to release a person on bail would be there.
19. Now, it is a fact that so far as the bond about the concerned accused is there, it is the bond executed by him on 8-11-1974 assuring to attend the Court on 15-4-1975. Question, therefore, would be whether after he had attended the Court in pursuance of that bond, whether recourse to the condition of that bond can be taken. Now, in the bond, over and above appearing before the Court on 15-4-1975, there is also an undertaking that he would remain present on all occasions so long as the case would be conducted in that court or even in Sessions Court, if the case is sent for trial to the sessions Court. Therefore, this is an all embracing condition and if on another occasion the concerned accused remained absent even in a bailable offence, the Court can exercise its power under Section 436(2) of the new Code.
20. Dispute was raised by Mr. Thakore that this was a bond given by the concerned accused before the Daman Police and not before this Court. It should be noted that this bond was taken by the Daman Police at the order of the City Magistrate, 10th Court, Ahmedabad dated 27-3-1974. The jurisdiction to release the concerned accused on bail of Rs. 1,500/- emenated from the order of the City Magistrate, Ahmedabad, and it was a direction to the Police Officer at Daman that the concerned accused should be arrested and thereafter he should be released on bail of Rs. 1,500/- with a condition to attend the Court whenever required. Therefore, it cannot be said that the said bond is not binding to the concerned accused, nor that the Court could not take recourse to section 436(2) to enforce the conditions of that bond.
21. Then an argument was advanced that this provision is in the new code which came in force to on and from 1-4-1974, while the case is filed prior to 1974 and especially the order of bailable warrant was issued by the learned Magistrate on 27-3-1974, and therefore, the provisions of section 436(2) of the new code cannot be brought into operation. Now, it should be noted that the concerned accused executed a bond on 11-4-1974 when the new code came into force. Mr. Thakore has relied on the provisions of Section 484 of the new code. This section refers to repeal of the old code. However, in sub-section (2)(a) thereof it has been provided :-
"(2) Notwithstanding such repeal :
(a) if, immediately before the date on which this code comes into force, there is any appeal, application, trial inquiry or investigation pending, then, such appeal, application, trial inquiry or investigation shall be disposed of continued, held or made as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (V of 1898), as in force immediately before such commencement, (hereinafter referred to as the old code), as if this code had not come into force :
Provided that every inquiry under Chapter XVIII of the old code, which is pending at the commencement of this code, shall be dealt with and disposed of in accordance with the provisions of this code."
22. It is, therefore, the submission of Mr. Thakore that as the complaint was filed before the date on which the new code came into force, then any appeal, application, trial, inquiry or investigation pending shall be disposed of according to the old Code.
23. Now, it is not the case that there was any application pending pertaining to the release or non-release of the concerned accused when the new code came into force. But in order to show that there is a vested right, Mr. Thakore relied on the Full Bench decision of this Court in Hiralal Nansa Bavsar v. State of Gujarat, 15 Gujarat Law Reporter 725, wherein the question before this Court was as to what procedure should be adopted for an appeal, and it was considered that the right of appeal is a substantive right and not a procedural one. Right of appeal is a vested right and the said right vests from the day of commencement of the proceeding as an appeal is considered as a continuation of the proceeding. This Court further considered that the new code came into force from 1-4-1974, repealing the old code, and then considered the provisions of section 484(2) of the new Code, and then considered that if right to appeal was there in the old code and if the proceedings were already pending, meaning thereby, the initial proceeding also, then the appeal would be governed by the new code and the person would have a substantive right of appeal to continue the proceedings upto the final court of appeal. It is, therefore, the submission of Mr. Thakore that when the complaint was filed, the old Code was applicable and for all the aspects pertaining to the case at each stage provisions of the old code would be applicable and not the new code.
24. Mr. Haroo bhai M. Mehta, rightly drew my attention to para 5 of the aforesaid full Bench division on page 734, wherein it has been observed :
"... A party to the prosecution has no vested right in procedural provisions. The intention of parliament is that out of the proceeding mentioned in the section (Section 484 of the old Code) those proceedings in which the party has no vested right are only to be continued or held or made according to the provision of the old code as if the new code has not been in force."
25. This Court specifically observed that so far as investigation is concerned, though that word is mentioned in Section 484(2), investigation is a procedural matter. No accused person has any vested right and, therefore, the accused acquired no vested right till the court takes cognizance of prosecution against him. But there are some vested rights from among those enumerated in Section 484(2) of the new code and they are disposed of finally in accordance with provisions of the old Code.
26. Therefore, it cannot be said that the provisions of the Old Code will be applicable to all the aspects which are not even enumerated in Section 484(2)(a) of the new Code. It is of course true that right to obtain a bail is certainly a substantive right. There is no change so far as the old and the new codes are concerned, so far as right of accused to obtain bail is concerned. There is no change in the offences, so far as the old code and the new code are concerned, particularly in relation to the offences with which we are concerned. Therefore, the substantive right of the accused to claim that the offences for which he is tried are bailable has remained. Can it be said that this aspect should be further carried on to the extent of permitting the accused to remain absent depriving the court of its power to force his attendance by refusing the bail ? Therefore it cannot be said that if under the old code a person is released on bail under a bailable offence and he does not remain present at the time when the provision of Section 436(2) of the new Code are available, that jurisdiction cannot be invoked and that the accused would be permitted to claim that he has a vested right to remain absent even in spite of his having given an undertaking, because he has given an undertaking in a bailable offence when the new code was not available. Now, even though I have touched this point because it was argued at length, according to the accepted principles under the old code, the High Court is not devoid of any jurisdiction to deny bail to a person if he is not facilitating proper conduct of the case before the Court.
27. At this stage it would be worthwhile to refer to the provisions of Section 498 of the old Code. It is as follows :-
"498. (1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High Court or court of Sessions may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced.
(2) A High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may I commit him to custody."
28. Sub-section (2), therefore, authorises the Session Court or the High Court to arrest person admitted to bail. It is practically like section 439(2) of the new Code referred to by me earlier. Before the Bombay High Court in Madhukar Purshottam Mondhkar's case - AIR 1958 Bombay 406 so far as the power under Section 498(2) of the old code for ordering arrest of a person accused of a bailable offence was doubted in para 3 of the judgment by observing :
"... There is no provision corresponding to sub-section (5) of section 497 or sub-section (2) of section 498, the important fact to remember is that, nor is there any provision in the Code which prohibits the High Court from re-arresting a person who has been released on bail in case where he is charged with a bailable offence."
29. This doubt was dispelled by the Supreme Court in an appeal against that (decision in Talab Haji Hussain's case (Supra) (AIR. 1958 SC. 376). In para 8 the Supreme Court has observed :
"In this connection, it would be relevant to consider the effect of the provisions of section 498. Under section 498(1) the High Court or the Court of Sessions may, even in the case of person accused of bailable offence, admit such accused persons to bail or reduce the amount of bail demanded by the prescribed authorities under section 496. Shri Purshottam no doubt attempted to argue that the operative part of the provisions of section 498(1) does not apply to persons accused of bailable offence; but in our opinion, there can be no doubt this sub-section deals with cases of persons accused of bailable as well as non-bailable offenders ...... If a person accused of a bailable offence is admitted to bail by an order passed by the High Court or the Court of Sessions, the provisions or sub-section (2) become applicable to his case; and under these provisions the High Court or the Court of Sessions is expressly empowered to cancel the bail granted by it and to arrest the accused and comit him to custody. This sub-section as we have already pointed out, has been added in 1955 and now there is no doubt that the legislature has conferred upon the High Court or the court of Sessions power to cancel bail in regard to cases of persons accused of bailable offences where such persons have been admitted to bail by the High Court or the Court of Sessions under section 498(1). The result is that with regard to a class of cases of bailable offences falling under section 498(1) even after the accused persons are admitted to bail, express power has been conferred on the High Court or the Court of sessions to arrest them and commit them to custody."
30. So, even under the old code power was there to practically cancel the bail under section 498(2) of the old code. Of course, that section in the old code does not refer to chapter, as in Section 439(2) of the new code but a person admitted to bail under sub-section (1) of section 498. There is of course scope to consider whether Section 498(2) refers to all cases where an accused is admitted on bail or only those cases where the bail is granted by the Sessions Court or the High Court. Though, of course, accused Talab was released on bail by the Chief Presidency Magistrate and the High Court cancelled the order under section 561A of the Old Code, the Supreme Court considered the powers also under section 498(2) of the old code, and still the power to cancel a bail on a bailable offence was considered. Therefore, I am considering other aspects also.
31. The Bombay Court in Talab Haji Hussain's case, AIR 1958 Bombay 406 (supra) against which an appeal was filed to the Supreme Court, which is in AIR 1958 Supreme Court 376, referred to earlier, considered that having provided in section 496 that a person accused of a bailable offence shall be released on bail, the legislature has not provided for, nor has it contemplated a situation which has been just described, meaning thereby, the legislature while enacting the enactment cannot envisage all the eventualities and laws might have some lacuna and, therefore, in order to meet these unforeseen cases and situations and to make good the lacuna if they exist that a code of law reserves to a Court inherent powers. The Bombay High Court, therefore, considered that the legislature could not think of a situation wherein a person in a bailable offence would be in a position to impair or impede the smooth conduct of a case if he is allowed to remain on bail. The Bombay High Court considered that if there has been any express provisions in the code prohibiting the court from arresting any person who has been released on bail under Section 496, then however reluctantly, the Court would have to carry out the mandate of the legislature. But because there was no such mandate the court considered that in a given case the High Court can pass such an order. It was, of course, stated as a caution, that these powers of the High Court are extremely restricted and circumscribed powers. They are not to be availed of as arising from ordinary jurisdiction conferred upon the High Court. It is only in extraordinary and exceptional cases where the High Court is fully satisfied that the court which is trying an accused person charged with a bailable offence will not be in a position to function as a Court, in the sense that it cannot get proper evidence before it and cannot come to a proper conclusion whether the offence has been committed, that it would exercise the inherent jurisdiction conferred upon it by section 561-A. This matter was further carried to the Supreme Court which is reported in AIR 1958 Supreme Court 376 (supra) and the decision of the Bombay High Court was confirmed and the appeal filed by Talab Haji Hussain was dismissed, to which I have already made reference.
32. Mr. H. K. Thakore, however, wanted to submit a distinguishing feature in the case before the Bombay High Court and the Supreme Court. There were two possibilities. One was that the accused before the High Court and the Supreme Court was attempting to tamper with the evidence, and secondly, there was likelihood of his jumping out the bail and going away abroad. But in both the cases the main consideration before the Court was the conduct of the trial in a fair way. It may be impeded by winning over the witnesses or impeded by the accused remaining consistently absent thus depriving the court of the trial at all. The Supreme Court in para 6, to which I have made some reference, has observed :
"... There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trail; and it is for the continuance of such a fair trail that the inherent powers of the High Court are sought to be invoked by the prosecution in cases where it is alleged that the accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trail, that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country."
33. So, because the question of fair trial was considered also on the ground of availability of the accused for the trial, Mr. Thakore wanted to make a distinction that this specifically refers to the accused absconding to another country. It is the submission that there is no case of the prosecution that the concerned accused is to go away abroad. It cannot be gainsaid that the concerned accused who was released on bail and against whom non-bailable warrants were issued initially, jumped the bail by not remaining present and also could not be available for trial. Whatever is considered by the Supreme Court in para 6 of Talab Haji Hussain's case (Supra) cannot be said to be an exhaustive list, but it is merely an illustrative aspect. If on the facts before the court it can be found that in a given case the accused would not be available for trial if he is allowed to be released on bail even on non-bailable offence, then in view of the principles laid down by the Bombay High Court and the Supreme Court, this Court has inherent powers.
34. It is true that this petition is a revision petition. But under the subject clause request is also made to invoke the powers of this court under section 482 of the new Code, which is equivalent to Section 561-A of the old Code, and Mr. Mehta submitted that he is invoking those provisions. Now in view of the decisions of the Bombay High Court and the Supreme Court in Talab Haji Hussain's case (Supra) if this is considered, then it can well be said that this is a case where the facts and circumstances of the situation demand that the Court should exercise its jurisdiction under inherent powers. Now, having considered the circumstances of the case, it clearly transpires from the petition filed by the complainant here before me on sworn affidavit that on various occasions the concerned accused did not remain present. There are 22 other accused also. On some occasion some accused remained present, and on another occasion they remained absent and thus the conduct of the trial is delayed. It is apparent that the prosecution case, as argued by Mr. Mehta, is that the concerned accused is practically the leader of all the other accused. Experience in Court shows that if all the accused are on bail, then proceedings are delayed by absence of one or the other accused, and the court cannot proceed with the trial in absence of any of the accused if exemption is not requested and granted. But if one of them is in jail, especially a person like the concerned accused then those who are concerned with him will see that the trial is taken up speedily and will remain present and by that the progress of the case will not be impaired. This is one of the considerations which has to weigh with the Court.
35. It was also submitted that as stated by the concerned accused, he was detained in Aguada Jail. The Customs authorities from Gujarat were waiting to receive him or rather, to put it correctly, arrest him. Instead of coming by the front door, it is the allegations that he escaped by the back door. It was streneously argued by Mr. Thakore that it was at the sweet will of the concerned accused either to go from the front door or the back door, and when he was released, he was entitled to go from any door which was available to him. Now that availability may be to his own knowledge or some convenience, but the fact remains that he could not be available at the front door, as stated by the complainant on oath. The circumstances narrated above clearly go to show that from 1974 the matter has not proceeded at all. Therefore, the concerned accused does not deserve to be released on bail, at least in order that the proceedings which are pending since 1975 can go on smoothly and expeditiously.
36. I would refer to one argument advanced by Mr. Thakore with a view to persuade me to consider the case of the concerned accused on the lines of other accused. It is his submission that the proclamation about the absconding accused was published not only for the concerned accused but was published also for accused No. 23 Haribhai Vallabhbhai and accused No. 14 Manekben. Both of them are released on bail. I have already considered the order of the learned Magistrate to see as to on what grounds Manekben was released, and that was because she was pregnant. Haribhai Vallabhbhai was released on bail of Rs. 5.000/- on 27-5-1982. It should be noted that as considered by the learned Magistrate in para 4 of the impugned order, Haribhai appeared before the Court of his own accord, meaning thereby, without issuance of any non-bailable warrant against him. He also remained in jail for one day. So it was not a case of blatant unavailability before the court as is apparent in the case of the concerned accused. Therefore, that case cannot be put on similar conditions.
37. It was submitted to me by Mr. Thakore that there are in all 28 accused. The record is voluminous and even during the committal proceedings, long time will be taken by the Court and, therefore, the accused would remain as an under-trial prisoner for a long time and, therefore, it would not be in the interest of justice, even to deny him bail as the trail would not start earlier than 15-10-1982 when Manekben is required to attend the Court. I quite appreciate his anxiety. But it can be said that the trial court should not insist on presence of Manekben and should permit her exemption in peculiar circumstances of her case, and the learned Magistrate should proceed with the matter as expeditiously as possibly and see that within a period of two months the committal proceedings are over. Thereafter, or even before that, by bringing out special circumstances which would be available after the trial starts, the concerned accused can move the Court to be released on bail and that will be considered on merits of the matter. This consideration will certainly depend on whether the delay in hearing is due to the prosecution or the defence. The prime consideration in this order is for a proper and unhampered trial of an old case which is delayed due to absence of the accused and so the accused should also cooperate.
38. In the result, therefore Criminal Revision Application 433 of 1982, filed by Original complainant is allowed and the order of the learned Magistrate releasing the concerned accused (i.e, opponent no. 1) is hereby cancelled. Rule is made absolute.
39. So far as criminal Revision Application No. 432 of 1982 is concerned, as the bail order is cancelled, there is no question of varying the conditions imposed by the learned Magistrate. Therefore, this petition is dismissed and rule is discharged.