These 28 applicants were granted bail by the Court of Session on 7-8-1978 under proviso (a) to section 167 (2) of the Code of Criminal Procedure wee investigation had not been completed by the police and challan filed within sixty days of their arrest. The accusation against the applicants was for offences punishable under sections 147, 148, 302 read with sections 34 and 149 of the Indian Penal Code and other minor offences of causing simple hurts. The challen came to be filed later and while committing the applicants to the Courts of Session on 20-10-1978, the Magistrate has cancelled the bail and taken them into custody.
2. The applicants went to the Court of Session in revision against the order of cancellation of bail. The Sessions Court refused to interfere and hence this application under section 482 of the code either to direct that the petitioners should continue on bail as they were prior to the order of commitment dated the 20th October, 1978, or in the alternative, to grant them bail under section 439 of the code.
3. The learned counsel appearing for the applicants had cited before the Sessions Judge the authority of the Supreme Court reported in Bashir and others v. State of Haryana, AIR 1978 SC 55 and had contended that the bail could be cancelled only under the provisions of section 437 (5) of the Code if the prosecution laid grounds before the Court to hold that the privilege was being abused by the accused in any manner and that they had done something to forfeit the privilege, say, that they had tampered with evidence, were suborning witnesses, giving threats or were conducting themselves in a manner that their remaining at large was not in public interest or in the interest of justice. The bail granted under section 167 (2) of the Code was as if bail granted under Chapter XXXIII of the Code, that is, deemed to have been granted under section 437 (1) or 437 (2) of the Code.
4. The learned Sessions Judge was of the view that if after the challan was put up and from the police papers there appeared reasonable grounds for believing that the accused had been guilty of an offence punishable with death or imprisonment for life, the committing Magistrate would be quite justified in cancelling bail under section 437 (5) of the Code and remand him/them to custody until the conclusion of trial by the Court of Session. That he could do so reading section 209 (b) and section 437 (1) of the Code together. A person against whom there were reasonable grounds to believe that he had committed a henious crime, should not normally be enlarged on bail, that being the import of Section 437 (1) of the Code, he could be taken into custody even if he was earlier let off on bail on a technical ground that the police had not completed investigation within sixty days of his arrest. Such was the dictum given by this Court in Dashrath v. State of M. P., 1978 JLJ 261 and Lalloo and others v. State of M. P., 1977 MPLJ 801 = 1978 JLJ 387 which the learned Sessions Judge preferred to follow. He said, the view of this Court did not run counter to the dictum laid in Bashir's case by the Supreme Court.
5. This is how I understand Bafhir's case. If grant of bail under section 167 (2) of the Code is deemed to be a bail granted under section 437 (I), I must bodily lift that provision and read it along with section 437 (I). This is how I propose to read the two provisions together:
“437. When bail may be taken in case of non-bailable offence. -- (I) When any person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:
Provided that the Court shall not authorise the detention of the accused person for a total period exceeding sixty days if the investigation has not been completed and challan filed and that the accused person shall be forthwith released if he is prepared and does furnish bail. (See section 167 (2) of the Code of Criminal Procedure).
6. Reading the two provisions together, therefore, spells out this meaning that though there are reasonable grounds for believing that an accused person has committed a crime for which the punishment was death or imprisonment for life, he has a statutory right to be released on bail if the investigation had not been completed within sixty days of his arrest and if the challan had not been filed within this prescribed period. Imagine a situation where the case diary relating to investigation during the sixty days of the accused person's detention, does furnish sufficient evidence to come to a Prima facie conclusion that the person had committed a crime punishable with death or imprisonment for life but the challan cannot be put up for certain reasons, say some link evidence is considered necessary and is in the process of collection or some expert opinion is awaited, the Magistrate is yet bound to release him on bail under section 167 (2) of the Code. While releasing him on bail, he cannot impose a condition that soon after the challan is filed, he should be put under arrest because though he was satisfied that there were grounds for believing that he was guilty of an offence punishable with death or life imprisonment and, therefore, not entitled to bail for reason of prohibition contained in section 437 (1), yet he was bound to grant bail under section 167 (2) of the Code which he was reluctantly doing. The Magistrate in granting bail could not make it operative only till the challan was put up. (See: Rampal v. State Of U.P., 1976 Cri LJ 288 approved in Bashir's case. To quote the placitum:
“A condition attached to an order granting bail under section 167(2) proviso (a) to the effect that 'the order shall be deemed to be vacated and cancelled as soon as the charge-sheet is received' is illegal. The provision makes it clear that a person released under section 167(2) shall be deemed to be released on bail under the provisions of Chapter XXXIII which deals with the grant of bail. The bail granted under section 167(2) has thus the same incidents as the bail granted under Chapter XXXIII, and is accordingly to remain valid till it is cancelled and the cancellation can be only on the grounds known to law. The receipt of charge-sheet in Court can by itself be no ground for cancellation of the bail.”
7. The situation does not change even at the time of commitment of the case to a Court of Session. Section 209(b) says that where the Magistrate finds the offender exclusively triable by the Court of Session, he shall “subject to the provisions of this Code relating to bail, remand the accused to custody during and until the conclusion of the trial.” It would be relevant to refer to Form 42 of Schedule V of the Code (Old). The bond which the accused is called upon to execute for his appearance before the Magistrate shall run as under:
“Shall attend at the Court of the Magistrate on every day of the preliminary inquiry into the offence charged against him and, should the case be sent for trial by the Court of Session, that he shall be and appear, before the said Court to answer the charge against him.”
The remand to custody under section 209 is made subject to the provisions of bail. Once bail has been granted under section 167(2) of the Code which by the deeming provision would be taken as bail granted under section 437(1) of the Code, the bail must remain operative till the conclusion of trial unless it is cancelled under section 437(5) for reasons of misuse of privilege or for some such reasons.
8. As said above, bail has to be granted under section 167(2) of the Code when the challan has not been put up within sixty days of the arrest of the accused irrespective of the prohibition contained in section 437(1) and that prohibition would not revive, because the challan is later filed and the committing Magistrate is satisfied that there are reasonable grounds to believe that the accused has been guilty of an offence punishable with death or life imprisonment.
9. The learned counsel for the applicants strongly relied on the Full Bench authority of the Allahabad High Court reported in Seoti and others v. Rex, AIR 1948 All 366. I would quote with the approval the following observations from paragraph 7 of this report:
“It is urged by Dr. Faruqui on behalf of the Crown that when bail is granted by the High Court at a certain stage in the proceedings the order would necessarily hold good during that stage of the proceedings alone. For instance, if a case in which bail is granted by the High Court is under investigation by the police, the order would hold good so long as the charge-sheet has not been submitted against the accused by the police and that as soon as the charge sheet has been submitted, it would be open to the Magistrate before whom the charge sheet has been submitted to re-consider the matter and cancel the bail granted to the accused person if he so chooses. Similarly, if an order granting bail is passed by the High Court while proceedings are going on in the Court of the committing Magistrate, it would be open to the committing Magistrate to cancel the bail as soon as he decides to commit the accused to the Court of Session. Such a practice would dearly lead to confusion and no justification for it is to be found in any of the provisions contained in the Code of Criminal Procedure in regard to the grant of bail.”
10. After all, a person released on bail is yet in constructive custody of the Court through his surety and he has to be produced in Court whenever required and so his liberty is to that extent subject to restraint. If he misuses his bail, the provisions of section 437(5) of the Code are attracted and the bail can be cancelled. But once granted bail, provisions of section 209(b) would not authorise the committing Magistrate to cancel bail and take the accused in custody. The bail enures to his benefit until the conclusion of the trial.
11. It may appear that the provision of bail under section 167(2) has an overriding effect over the prohibition contained in section 437(1) or is an exception carved out. But to get over the difficulty, the prosecution must see that they put up challan within sixty days of the arrest of the accused.
12. In the result, the applicants must be released on fresh bail of Rs. 3,000 each, with one surety in the like amount for their appearance in the Court of trial on the date fixed by that Court and for their continuing so to attend until otherwise directed by that Court, and at such other place as that Court may direct in that behalf.
Order accordingly.