Bombay High Court
Assistant Collector Of Customs (P), ... vs Madam Ayabo Atenda Ciadipo Orisan And ... on 11 October, 1991
Equivalent citations: 1992(1)BOMCR383, 1992CRILJ2349, 1992(59)ELT369(BOM)
ORDER
1. Points of law of some consequences have fallen for decision in this application. The Accused is a Nigerian lady, who is alleged to have been arrested as long backs as on 12-5-1987 by the Customs Officers while attempting to smuggle out of India narcotics valued at Rs. 2,00,000/-. The Accused was placed under arrest on charges punishable under the Narcotic Drugs and Psychotropic Substances Act, 1985. The record indicates that on 9-6-1987, the learned Additional Chief Metropolitan Magistrate, before whom the Accused was produced, ordered her release on bail in the sum of Rs. 1,50,000/- with one surety in the like amount along with certain conditions. The Accused could not avail of the bail and continued to be in custody, though the Court record indicated that there was an order for her release on bail or rather than the original bail order dated 9-6-1987 was still valid.
2. On 13-8-1987, the Customs Department filed a complaint before the learned Chief Metropolitan Magistrate, Bombay, who was at that time the authority competent to entertain such a complaint. Thereupon, the court, as and by way of issuance of process, passed an order entertaining the complaint and issued a non-bailable warrant. The Accused continued to be in custody and the case was thereafter committed to the Court of Session for trial. At that time, the Accused's Advocate made an application to the learned Sessions Judge in which he contended that the bail order passed on 9-6-1987 by the learned Additional Chief Metropolitan Magistrate was still in force in so far as it had not been set aside by any judicial authority and he, therefore, prayed for a direction that the Accused be permitted to avail of that order. The Registrar of the Court took up the contention that the order was of a subordinate Court and, therefore, could not be implemented by the Court of Sessions and accordingly informed the Advocate appearing on behalf of the accused that if the accused desired to be released on bail, it was necessary to obtain a bail order from the Court of Sessions or some Court superior thereto and referred the matter back to the Court. The learned Additional Sessions Judge thereafter heard the arguments, at which time the learned Advocate Mr. Maniyar, produced before the learned Additional Sessions Judge the order passed by this Court in Criminal Application No. 979 of 1990 pertaining to another case but in somewhat similar circumstances, wherein this court had taken the view that it was possible in a given case to hold that an order of bail once granted continues until it has been set aside. Relying on this decision, the learned Additional Sessions Judge once again passed an order of bail on identical terms to the one passed by the learned Additional Chief Metropolitan Magistrate on 9-6-1987. This order is dated 27-11-1990.
3. The Accused in this case is a Nigerian National and the Customs Department apprehended that if she is so much as released from custody that it may be difficult for them to trace the Accused. Counsel for the Department forthwith filed an application before the learned Additional Sessions Judge praying for cancellation of the bail order that had just been passed. On this application, the learned Additional Session Judge granted stay of the operation of his order. The Department thereupon filed the present Criminal Revision Application and obtained an ad interim stay of the operation of the order dated 27-11-1990 granting bail to the Accused.
4. When the Criminal Revision Application came up for hearing, Mr. Maniyar learned Counsel appearing on behalf of the Accused, raised certain submissions on points of law which I shall presently enumerate. I, however, pointed out to Mr. Nadkarni, learned Counsel appearing on behalf of the Department, that it has been contended before this Court in some of the similar cases that any order relating to the grant of bail should be construed as an interlocutory order and, consequently, that the bar under section 397 of the Code of Criminal Procedure would apply to such applications. Mr. Nadkarni submitted that even though it is his contention that the learned Additional Sessions Judge has finally disposed of the application for bail and, therefore, regardless of its timing being at in interlocutory stage of the proceedings that it would not be an interlocutory order, however, in order to err on the safe side, he prays for invocation of the inherent powers of this Court under section 482 of the Code of Criminal Procedure. Mr. Nadkarni has accordingly submitted an application to this effect. I need to record that Mr. Maniyar, learned Counsel appearing on behalf of the Accused, has objected to the maintainability of this application. He has contended that the only provision of law under which cancellation of bail can be asked for is Section 439 of the Code of Criminal Procedure and that, therefore, Mr. Nadkarni cannot be permitted to invoke the inherent powers. The choice as to which of the provisions of the law the Department desires to invoke is ultimately left to the Department and there are instances when it in open to a party to move the High Court for revocation or stay of a bail order which has been improperly passed by a subordinate court, even in exercise of the High Court's powers under section 482 of the Code of Criminal Procedure. Consequently, I have entertained the application because the issues involved in this case are of some importance and it is equally essential to brush aside technicalities and to do substantial justice.
5. Mr. Nadkarni's principal ground of attack as far as the order of the Additional Sessions Judge is concerned proceeds on the footing that the Accused in this case is a young woman, admittedly a foreign national with no known base, links or occupation in this country. That she was free to visit India even as a tourist or for that matter for any other reason is undisputed, but the consideration which this Court has to take into account is the situation that would arise if such a person facing a serious charge were to be released from custody. It is Mr. Nadkarni's submission that regardless of whatever conditions which this Court may impose that experience has shown that the Department has just not been able to trace foreigners who are released on bail because they make themselves scarce by going to different parts of the country itself of by leaving the country clandestinely. What Mr. Nadkarni submits is that if the situation presents a possibility of this type, the release of the Accused on bail would virtually frustrate the entire prosecution and that in that view of the matter, the real issue is as to whether the Court should at all permit the release on bail. His second contention is that having regard to the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act, where an accused person is facing a charge of drug-trafficking, the Department is entitled to contend that both parts of this Section would apply. There is nothing before this Court from which it can be contended that on the present record the Accused is not guilty of the offence with which she is charged and, furthermore, that she will not repeat the same type of offence. On merits, therefore, Mr. Nadkarni submits that the learned Additional Sessions Judge was not justified in taking a technical view of the matter and ordering the release of the Accused in the face of the provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act.
6. As against this position, Mr. Maniyar, in the first place, submitted that the record of this case indicates that the Accused was ordered to be released on bail as early as on 9-6-1987 and that, according to him, unless and until that bail order is set aside under Section 439 of the Code of Criminal Procedure that his client is entitled to avail of the original bail order. He counters the submissions advanced by Mr. Nadkarni, who contended that the interim bail order of 9-6-1987 came to an end in August, 1987 when on filing of the complaint, a non-bailable warrant was issued by the court, by pointing out that subsequent developments in the course of the proceedings do not ipso facto have the legal effect of nullifying the effects of a bail order. Mr. Maniyar's contention is that the issuance of the non-bailable warrant in August, 1987 is a circumstance that will have to be ignored because the earlier bail order ought to have been first cancelled and since the Accused in any case was in custody, no cognizance should be taken of the issuance of the non-bailable warrant. I need to point out that factually this submission is completely misconceived. It is quite implicit when the initial bail order was passed on 9-6-1987 even if that order had been availed of, that the order was to be effective only until the filing of the complaint. On the filing of the complaint, one enters a different stage of the proceeding and even if the Accused was on bail at that point of time, it would have been essential for her to be released on bail by the Court once again, the earlier order having exhausted itself. The bail order of 9-6-1987 would, therefore, be an order that was current or an order that was capable of being availed of only until such time as the filing of the complaint, since under the relevant provisions of law on the filing of the complaint the Court has to enter into a de novo consideration with regard to whether the Accused should be released on bail or whether the Accused should be taken into custody. It follows that the life of the earlier order whether availed of or not availed of, is only of a limited duration up to that point of time. To my mind, therefore, in these circumstances, it was unnecessary for the Court to have passed an roder for revocation of bail under section 439 of the Code of Criminal Procedure before proceeding further when the complaint was filed. Such an order would only have been necessary if the Prosecution applied for revocation of the order of bail passed on 9-6-1987 on the ground that the Accused had given cause for revocation of that order. To my mind, therefore, the premises on which this argument was based, namely, that the bail order was current and continued to be enforceable even when proceedings had come to the Sessions Court proceeds on an entirely wrong and faulty assumption which cannot be upheld. It was precisely for this reason that the learned Additional Sessions Judge reconsidered the issue at the time when the matter was agitated before him. I need to record here that the learned Additional Session Judge has again not granted bail to this Accused on merits, but has granted bail relying on another decision of this Court which proceeded on the aforesaid arguments. That order cannot, therefore, be construed as an order granting bail on merits.
7. The extension of the submissions advanced by Mr. Maniyar is that the provisions of Section 439(2) of the Code of Criminal Procedure cannot apply in any case where an order for release on bail has not been availed of. Mr. Maniyar relies strongly on the wording of the section which states that it shall be open to a superior Court in a case where the Accused has been released on bail, to order that the Accused be arrested and committed to custody. Mr. Maniyar has relied on a decision of a learned single Judge of this Court in Criminal Appln. No. 1712 of 1990 with Criminal Appln. No. 1614 of 1990 dated 20th Nov. 1990 (reported in 1991 Cri LJ 552) delivered by my brother Dhabe, J. The parties in that case had relied on the decision of the Supreme Court in Raghubir Singh's case . Relying on certain observations in that case, it was contended before Dhabe, J. that Section 439(2) of the Code of Criminal Procedure can have no application unless the Accused has, in fact, been released from custody. The argument proceeds on the footing that there can be no question of applying this section unless re-arrest and re-confinement to custody are both possible and if the Accused has not been released then Section 439(2) of the Code of Criminal Procedure cannot apply. Support was drawn heavily from the observations in Raghubir Singh's case and it was contended before Dhabe, J. that an application for cancellation without the Accused having been released is not legally feasible. I need to point out, in the first instance, that every decision is a decision on the facts of that particular case. A careful scrutiny of the Supreme Court judgment in Raghubir Singh's case will indicate that Justice Chinnappa Reddy, J. (as he then was) dealt with a situation of restrictive application, namely where the provisions of Section 167(2) of the Code of Criminal Procedure applied and the accused availed of bail as and by way of default. In this case and several other cases, the Supreme Court has very clearly 7 enunciated the position in law that even if such bail is granted that it shall be open to the Prosecution to apply for cancellation thereof. It is true that in a given case before Dhabe, J., which again related to Section 167(2) of the Code of Criminal Procedure, that the observations in question were made. One will have to construe those observations as being applicable at the highest to the facts of the cases that were being decided before that learned Judge. In any even, there is no question of consideration of the provisions of Section 167(2) of the Code of Criminal Procedure in the proceeding before me and, therefore, to my mind, the observations in that proceedings will not bind the decision in the present case.
8. Dealing with the submission on law advanced by Mr. Maniyar, which is to the effect that under no circumstances can Section 439(2) apply unless an accused has availed of the bail order, to my mind, it would amount to grafting on a clause to the Section which does not exist in it, and it would amount to narrowing down the scope of that Section which is something that is impermissible having regard to the principles of law that govern the interpretation of statues. This is a Section that takes into account circumstances under which a superior Court may interfere with a bail order that has been passed by a subordinate Court or wherein a Court may review an earlier bail order passed by a Court of parallel jurisdiction. The question of cancellation of a bail order presupposes the grant of such bail and an order granting bail as of necessity uses the terminology "the Accused is directed to be released ........". An order directing the release of an accused on bail is an order that becomes effective forthwith unless the Court specifies that it will take effect after a certain amount of time has elapsed. An order for release of an accused on bail, therefore, to my mind, is permissible of reconsideration under section 439(2) of the Code of Criminal Procedure at any point of time after the order is passed.
9. The formalities relating to the release of the Accused, such as the approval of the surety or transmission of the documents to the Jailor where the Accused is confined, etc., may all take a certain amount of time. The law does not take into account these subsequent stages nor does the law take into account a situation whereby for whatever reason the Accused person may not immediately avail of the bail order that is passed. If there is an apprehension in the mind of the prosecuting authority that the Accused will abscond immediately on being released from custody, or in a given case where the prosecuting authority is of the view that the bail order itself is manifestly wrong or unfair, this Section would not provide any bar to the Prosecution from asking for a review of that order and the question as to whether the Accused is physically released or not is quite irrelevant. It is true that Section 439 of the Code of Criminal Procedure refers to rearrest of the Accused and confinement in custody. It is on the basis of this wording that Mr. Maniyar submits that the Section presupposes that the Accused is, in fact, out of custody and, therefore, requires to be rearrested. Mr. Maniyar submits that one cannot do violence to the wording of S. 439(2) of the Code of Criminal Procedure and that one will have to take the wording of the Section as a whole. It is necessary to point out that the clause "any person who has been released on bail under this Chapter" will have to be strictly construed as meaning any person who has been released on bail by a Court. The subsequent part of the Section entitles a Court to direct re-arrest and confinement to custody if the bail order has been availed of and in cases where the bail order has not been availed of, the subsequent part of the Section would be rendered redundant. It is not permissible to interpret this Section in such a way that the two parts of it are necessarily interconnected and cannot be delinked. The Section is required to be interpreted rationally and in keeping with the purpose for which it was put on the statute book. I need to point out that the Code of Criminal Procedure does not make any other specific provision relating to the cancellation of bail and it is, therefore, implicit that all situations in which cancellation is to be applied for would be covered under section 439 of the Code of Criminal Procedure.
10. The other argument advanced by Mr. Maniyar is to the effect that a reference to the judgment of Dhabe, J. referred to by me (1991 Cri LJ 552) (supra) will clearly indicate that if there is a specific provision in the Code of Criminal Procedure, then the inherent powers of this Court under section 482 of the Code of Criminal Procedure ought not to be availed of, Mr. Maniyar submits that the powers under Section 482 of the Code of Criminal Procedure cannot be resorted to if there is any other specific provision in the Code. He relied on the decisions of the Supreme Court referred to in the judgment of Dhabe, J. in support of his arguments. A perusal of those decisions, however, indicates that the opposite provision of law was canvassed before the Supreme Court and what the Supreme Court has, in fact, laid down time and again is that if there is a specific bar to something under a provision in the Code of Criminal Procedure that it is not permissible to get over that bar by having resort to Section 482 of the Code of Criminal Procedure. A reading of Section 482 of the Code of Criminal Procedure will indicate that it is an overriding inherent power vested in the High Court which is a power parallel to the jurisdiction of the High Court under Art. 226 of the Constitution wherein the High Court is invested with certain inherent powers, which is virtually an unfettered jurisdiction to pass all such orders as are necessary in the interest of justice. A situation often arises where specific provisions cannot be pointed out or where essentially the interests of justice require that the High Court has to exercise a sweeping overriding jurisdiction and in these circumstances for the purpose of securing the ends of the justice such powers can be exercised. Those powers are in addition to the Powers of the Court under the Code of Criminal Procedure and they do not in any way limit the powers of the High Court. In my mind, therefore, the submission advanced by Mr. Maniyar that the aforesaid decisions of the Supreme Court act as a fetter on the powers of this Court is not well founded.
11. Coming to the facts of the present case, a strong plea has been advanced that the Accused is a young woman, and that she has been in custody for well over four years up to this point of time. Mr. Maniyar submits that this Court must adopt a humanitarian approach and must take into account the fact that the Accused is a foreign national and a woman and he reinforces his plea with the submission that the conditions in the jail are so difficult that the health of the Accused is in precarious condition. These factors, undoubtedly, do require some consideration, but the legal difficulty in the way of Mr. Maniyar is that they are not factors which could override the stringent provisions of Section 37 of the Narcotic Drugs and Psychotropic Substances Act. On merits, therefore, I am unable to accede to the plea that both the orders should be upheld, but it is still permissible to this Court, on the special facts of this case, to direct the learned Additional Sessions Judge before whom the trial is pending, particularly since this is an incident relating to the year 1987, to take up the matter for hearing at the very earliest and to dispose of the same, in any event, within an outer limit of 3 (three) months.
12. Both the Applications filed by the Customs Department/State are accordingly allowed. The order of the learned Additional Sessions Judge dated 27-11-1990 is set aside and it is clarified that for the reasons set out in this judgment that the initial order of bail granted by the trial Court on 9-6-1987 is no longer operative or enforceable. The rule is accordingly made absolute.
13. Rule made absolute.