Madhya Pradesh High Court
State Of Madhya Pradesh vs Chintaman And Ors. on 10 August, 1988
Equivalent citations: 1989CRILJ163
ORDER R.C. Lahoti, J.
1. In Sessions Trial No. 16/85, the Sessions Judge Bhind held the non-applicants guilty of offences punishable under Sections 326/149, 323/149 and 148 I.P.C. and sentenced to various terms of imprisonment the longest being five years' rigorous imprisonment. They preferred an appeal. Vide order dated 13-1-87 passed in Criminal Appeal No. 281/86 this Court directed the execution of the sentences of imprisonment to be suspended under Section 389(1), Cr. P.C. subject to their furnishing personal bonds in the sum of Rs. 10,000/- each with one solvent surety in the like amount. The non-applicants/appellants furnished bail bonds and are thus at liberty pending appeal.
2. On 9-9-87, an application under Section 439(2) read with Section 482, Cr. P.C. has been filed by the State under instructions of the Law Department praying for cancellation of the bail and for further direction committing the accused/appellants to custody pending appeal on the ground that subsequent to being enlarged on bail, they have made an abuse of the privilege, they are threatening the complainant and are indulging in other criminal activities creating a terror in the village. The non-applicants have controverted the allegations by filing reply on affidavit sworn by one Keshavsingh.
3. A preliminary objection has been raised to the entertainability of the application on behalf of the non-applicants. It is submitted that Section 439(2), Cr. P.C. which makes a provision for cancellation of bail is limited in its application to such persons only who have been released on bail under Chap. XXXIII of the Code of Criminal Procedure, 1973. His further submitted that no provision for cancellation of bail is to be found in Section 389, Cr. P.C. which is a self-contained provision and hence a prayer for cancellation of bail of a convict (who ceases to be an 'accused') whose sentence has been directed to be suspended under Section 389, Cr. P.C., cannot be entertained by having resort to the provisions of Section 439(2) Cr. P.C. It is insisted that the prayer for cancellation of bail should be rejected in limine.
4. The learned Counsel for the complainant has relied on a decision of the Madras High Court in Public Prosecutor v. George Williams to counter the submission of the counsel for the non-applicants, wherein it has been observed that the provisions of Section 497(5) read with Section 561A of the Code of Criminal Procedure, 18%, gives ample power to the High Court to deal effectively with accused persons released on bail pending appeal who by their continuing to commit the crimes denied in the appeal memorandum render themselves liable to re-arrest and committal to custody. It is obvious that provisions similar to those in Section 497(5) will attach themselves analogously to Section 426 bail cases also, in order to prevent abuse of process of Court and to secure the ends of justice."
It has been further held-
It will be atrocious if the High Court which grants bail to an appellant, pending his appeal, on his application protesting his innocence, is not empowered to cancel his bail, and rearrest him, and commit him to custody when he is proved to have abused the process of the Court, by getting bail on false pretences, and misbehaves and proves himself unworthy of continuing on bail.
5. In my opinion, a prayer for cancelling the bail furnished pursuant to an order for suspension of sentence can be entertained and such powers can be exercised by the High Court without having resort to the provisions contained in Section 439(2), Cr. P.C. 1973, (equivalent to Section 498(2) of the old Cr. P.C. and pari materia with Section 497(5) thereof).
6. Once a person has been held guilty of having committed an offence, he cannot claim suspension of sentence pending his appeal and consequent release on bail as a matter of right. The power to enlarge on bail after conviction, though discretionary, is not so wide as is under Chap. XXXIII relating to bails before conviction. By passing an order under Section 389, Cr. P.C., the sentence is not set aside, but is merely suspended i.e. kept in abeyance and the appellant remains a convict for all practical purposes. The indulgence is shown because the appellate Court feels that the guilt is required to be rejudged and pending such adjudication if the appellant has served out the sentence or a substantial part of it, in the event of his ultimate acquittal, the suffering may become irreversible. That is why the suspension of the sentence is to be accompanied by reasons to be recorded by the Court in writing. Such suspension of sentence is intended to last ordinarily until adjudication of appeal on merits. In other words, it is an interim order, temporary in nature as opposed to such orders with which a finality is attached. In the very nature of the jurisdiction conferred by Section 389, Cr. P.C. it is inherent that the order may be recalled at any lime provided that there may be reasons for doing so and in a judicial manner. The power to create includes the power to destroy and also the power to alter what is created unless the law vesting the power is accompanied by a limitation to the contrary either express or necessarily to be implied looking to the purpose and scope of the power conferred.
7. It is, therefore, held repelling the contention of the learned Counsel for the non-applicants that this Court is not powerless in cancelling the bail and recalling the order of suspension of sentence passed earlier under Section 389(1), Cr. P.C.
8. However, this is not all. The Court would not act on assertions or counter-assertions by either party and lightly cancel the bail, which was granted by order dated 13-1-87 passed after hearing both the parties. As held in State through Delhi Administration v. Sanjay Gandhi , "Cancellation of bail necessarily involves the review of a decision already made (Para 13)....", and, "The power to take back in custody an accused who has been enlarged on bail has to be exercised with care and circumspection. (Para 24)."
9. Before disposing of the application, a summary enquiry, not a trial, would be appropriate, because rules of natural justice cannot be forgone. The State through its representative, the complainant and the accused/non-applicants would appear before the Chief Judicial Magistrate, Bhind on 23-8-1988. No separate notice of date shall be necessary and within a fortnight thereafter the C.J.M. would hold a summary enquiry for ascertaining the truthfulness of the averments made in the application for cancellation of bail. The C.J.M. would afford opportunity of adducing evidence to all the three, but without giving either party a tool for delaying the enquiry. After holding the enquiry, and after hearing the parties, the C.J.M. would record his findings about the allegations made in the application. The papers forming part of Criminal Misc. Case No. 1304/87 be transmitted to the C.J.M. Bhind post-haste so as to reach on or before 23-8-88, who would return his report so as to reach this Court before 12-9-88. On receipt of the report of the C.J.M. along with the record, the case shall be posted for hearing and orders before this Court on 12-9-88.