N.C.Talukdar, J.:-

(1) This rule is a the instance of the superintendent and remembrance of legal affairs, government of west bengal, on behalf of the state of west bengal, for cancelling art order" of bail dated the 13th december, 1973 passed by sri s. Ahmed, sessions judge - in - charge, alipore, district, 24 - parganas in favour of the accused opposite - party, amiya kumar roy choudhury alias dadaji, and for directing the accused opposite - party to be remanded to police custody instead of jail custody as was ordered by sri s. N. , som, police magistrate, alipore ok 11 - 12 - 73.

(2) The facts leading on to the rule can be put in a short compass. The accused opposite - party was arrested by the police on the 11th december, 19755 in connection with the tollygunge p. S. Case no. 734 dated 14. 9. 73 under sections 120b/420/467/471 indian penal code and was produced before the learned police magistrate at alipore on the same date. The co - accused, sm. Anjali banerji, was allowed bail but the prayed for bail pressed on behalf of the accused - opposite party was rejected the learned police magistrate by the same order remanded the accused opposite - party to jail custody till 24. 12. 73. A revisional application therefore was preferred by the accused opposite - party before the learned sessions judge at alipore and sri s. Ahmad sessions judge - in - charge, alipore, by his order dated the 13th december 1973 admitted the application, called for the records of the lower court as well as the record of title suit no. 38 of 1973 of the 3rd court of the subordinate judge, alipore, and also the memo of evidence, if any. By the same order he allowed the prayer for interim bail and directed the accused - opposite party to be released on a bail of rs. 10,0001 - with two sureties of rs, 5,0001 - each, to the satisfaction of the learned additional district magistrate judicial, alipore on condition that the opposite - party shall confine himself within his own house and shall not move without the permission of the court, with the further direction that he was to appear in person on the date of hearing before the court, which was fixed on 21. 12. 73. These orders were impugned by the superintendent and remembrance of legal affairs, west bengal and the present rule was issued on 14. 12. 73.

(3) Mr. Rajesh chandra ghosh, deputy legal remembrance, state of west bengal (with mr. Promode ranjan roy, junior government advocate) appearing in support of the rule made a submission of two dimensions. Firstly, that the order passed by the learned sessions judge - in charge, alipore, 24 - parganas, has been bad and improper, inasmuch as, amongst others, there should have been no interim order passed in an application for bail, arising out of a case involving serious offences, and before finally hearing it that the conditions imposed on such bail are not also sufficient; that no direction even was given as to how the accused opposite - party was to be interrogated by the i. O. ; and there in no finding at all that the court was satisfied that there are reasonable grounds for believing that the accused opposite - party is not guilty of any offence coming within the bounds of section 497 criminal procedure code, as amended by section 14 (b) of the west bengal act ix of 1972. Secondly, that the order passed by the learned police magistrate remanding the accused opposite - party to jail custody is also bad inasmuch as he did not allow the prayer made on behalf of the prosecution to remand the accused opposite party to police custody for necessary interrogation and completing he investigation. Mr. N. C banerjee, advocate (with messrs prasun chandra ghose, bidyut kumar ghose and prabhot singh, advocates) appearing on behalf of the accused opposite - party raised a preliminary objection, besides opposing the rule on men is and controverting the two dimensions of the learned deputy legal remembrance's contentions. The steps of mr. Banerjee's reasoning in support of his preliminary objection, are that the revisional application filed in this court is not maintain able being a curious amalgam of different sections, some of which are not applicable in a case containing a prayer for cancellation of bail; that the cause title of the application is not also pro per inasmuch as such jurisdiction is not criminal revisional but criminal miscellaneous; and that as the application before this, court contains several averments of facts it should have been affirmed by a competent person. In opposing the rule on merits, mr. Banerjee contended, inter alia that the order for bail has been just and fair that the criticism thereof has been more technical than real; that substantial justice has been dispensed by the learned sessions - judge - in - charge in allowing interim bail because the accused opposite - party is a respectable person living with his family in his house and there is neither any chance of his absconsionnor of any 'interference by him with the pending investigation; that it should not be overlooked that he did not abuse the indulgence of the interim and con additional bail granted to him, that he has been suffering from various ailments and as such his detention in jail will be very much pre - judicial; and that further conditions, if deemed necessary, may be imposed on his bail. Mr. Banerjee next contended that, in any event, the order dated the 11th december, 1973, passed by the learned police magistrate, alipore, cannot be challenged) at this belated stage and in this petition which only arises out of an order dated 13. 12. 73 passed by the learned sessions judge - in - charge, alipore, allowing interim bail in an application for bail filed by the accused opposite - party.

(4) We will take up, in the first instance the preliminary objection raided by mr. Nalin chandra banerjee for1 consideration. It is quite true that application for cancellation of bail are miscellaneous applications filed under section 497 (5) or under section 498 (2) criminal procedure code as the circum stances call for, and that the statements of facts contained in a petition are usually required to be affirmed by affidavit. In the present case, there is a specific reference to section 498 though not to section 497 (5) criminal procedure code, but merely because other provisions have also been mentioned in the cause title, the same would not vitiate the application or the rule inasmuch as the ultimate prayers as made are quite specific and clear. More over, the supreme court itself held in tacuao haji hussain's case reported in it. Air 1958 sc 376 that under section 561a criminal procedure code, the high court has inherent power to cancel me bail granted to a person, accused of a bailable offence and further observed mat such power can be exercised in the interests of justice. As to the other branch of mr. Banerjee's objection, it is to be noted that the impugned application in the high court hat, been filed of the superintendent and remembrance of legal affairs to the govt. Of west bengal, on behalf of the state of west bengal and, in any event, the ultimate prayer made therein is not necessarily depends on the averments of facts. The objection raised in this behalf by mr. Nalin chandra banerjee is indeed more technical than real and on thus ground alone, the rule cannot be discharged. 4. In any event, it should not be over looked mat a rule has already been issued by the high court and the entire matter as before it. It has to be noted further that it has been held in several cases that where the high court had issued a rule, the matter should be disposed of on merits and not dismissed on a preliminary objection, if the ends of justice so demand. A reference in this context may be made to the case of biwki nath dhar v. Gourgopal reported in a. I. R. 1953 cal. 777 where mr. Justice sen who delivered the judgment of the court observed at page 778 that "it has been held in some cases that where the high court issued a rule, the matter should be disposed of on merits". A reference again may be made to the case of (1) bon behari mondal v. Bhusan chandra barui reported irx a. I. R. 1969, calcutta page 287 wherein it was held that "law is good, but justice is better". It was further held there in at page 293 that "practice is but the hand, - maiden of law and cannot be allowed to over - ride the latter and be her jealous mistres. The high court is the paledium of justice and its stream must remain unlettered". A reference also may be made to the case of (t) t. H. Hussain appellant v. M. P. Mondkar and, another respondent reported in a. I. R. 1958 s. C. Pp. 376 at pp 383 where - in mr. Justice gajendradkar (as his lordship then was) , delivering the judgment of the court observed that "alter all, procedure, whether criminal or civil must served the higher purpose of justice". We respectfully agree and we hold that there may be much force behind the submissions of mr. Banerjee in this behalf, but the rule having been issued and everything being before this court, we will proceed ex debito justitiae to dispose of the rule on merits. The preliminary objection raised is disposed of accordingly.

(5) We will now turn to the merits of the application for cancellation of bail and for seating aside the older for jail custody. We have given our anxious consideration to the submission made in this behalf and we mid that prima facie the order dated the 13th december, 19/3 as passed by the learned sessions judger - in - charge, alipore, appears to be not a proper one and leaves room for improvement. In a case of this description, the learned judge should have fixed an earlier date for the final hearing of the application for bail and proceeded to dispose it of on merits instead of allowing the prayer for interim bail. The conditions imposed again are not sufficient and no direction has been given as to how the accused opposite - party was to be interrogated by the i. O the functions of the judiciary and the police are specific and ear - marked. A reference in this context may be made to the case or. (3) king - emperor, appellant v. Khwaja nazir ahmed, respondent, reported in 71 i. A. 203 wherein lord porter observed at pages 212 - 213 that

"the functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under1 s. 491 of the criminal procedure code to give directions in the nature of habeas corpus"

.

The bounds of such an interference have undoubtedly been expanded by the recent decision of the supreme court in the case of (5) s. N. Sharma, appellant v. B - pen kumar tiwari and others,, respondents reported in a. I. R. 1970 s. C. 786 wherein it was observed by mr. Justice bhargava, delivering the judgment of the supreme court, that though the code gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy in invoking, the power of the high court under article 226 of the constitution under which, if the high court could be convinced that the power of investigation has been exercised by a police officer mala fide, the high court can always issue a writ of mandamus restraining him from misusing his legal powers. Subject to this intervention, the powers of the police at the stage of; investigation should not be interfered with or made unnecessarily difficult. The learned deputy legal remembrance pinpointed that in view of the nature of the offences alleged and also in view of the field of investigation which is wide enough, reasonable facilities must be given to the investigating officer to have proper interrogation so that the investigation may be completed within a short time. There is a considerable force therefore behind mr. Ghosh's sub missions and one looks in vain to the impugned order for any directions relating to the pending investigation. To crown all, there is no finding at all by the learned sessions judge - in - charge that he was satisfied that there are reasonable grounds for believing that the accused opposite - party is not guilty of any offence coming within the ambit of section 497 criminal procedure code, as amended by section 14 (b) of the west bengal act ix of 1972. These are some of the defects of the impugned order but, by themselves, these are not sufficient to warrant a cancellation of bail in a case, where it has been granted on conditions imposed. On ultimate analysis, the same will depend on several other considerations, including the grounds of expediency, balance of convenience and of justice.

(6) The, law of bails, which constitutes an important branch of the procedural law, is hot a static one; and in a welfare state, it cannot indeed be so. It has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the mis - adventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence, viz. , the presumption of innocence of an accused till he is found guilty. These are indeed conflicting equities highlighting the law of bails but the shield in no case should be allowed to be the sword. The observations aptly made that "in a barbaric society you can hardly ask for bail in a civilised society you can hardly refuse it" are more than an epigram, subject only to the tests or considerations laid down from time to time by the imprimatur of judicial decisions. On an over all consideration, therefore, the order for bail, as granted by the learned sessions judge - in - charge, alipore should not be cancelled merely because of the defects referred to above, but. In the interests of justice, we will have to consider the different facts of submissions on merits advanced on behalf of the accused - opposite parry in support of the order of bail.

(7) Mr. Banerjee appearing on behalf of the accused has made a three - fold submission in this context. The first one is that the accused opposite party is a respectable person living in his house with the members of his family and there is no chance of his absconsion or interference with the pending investigation. More so, when various conditions have already been imposed on his bail, ruling out any such apprehension. The learned deputy legal remembrance joined issue and contended that inter rogations on material points have to be made and for completing the investigation properly and expeditiously, the accused - opposite party should be remanded to police custody. This by itself however is not a sufficient ground and the apprehended prejudice can be obviated by imposing proper conditions on the bail of the accused - opposite party and by giving due opportunity to the investigating officer for interrogations. The next submission on merits by mr. Banerjee is that the accused - opposite party did not abuse the indulgence when granted interim bail by the court below. On this point there is no demurrer on the part of the state. The last contention on merits made on behalf of the accused - opposite party is that he has been suffering from various ailments requiring proper medical attention and as such his further detention in jail will only operate to his prejudice. The learned deputy legal remembrance in his reply submitted that such ailments can well be attended to in the jail hospital, if so required. We are unable however to agree with the submissions made in this behalf by the learned dept. Legal remembrance cancellation of an order for bail is an extra ordinary order and can only be based on the tests laid down by the imprimatur of judicial decisions on the point. A reference in this connection may be made to the cases of johurmull and ors. Petitioners reported in 10 c. W. N. 1093; (2) emperor - prosecutor v. Jiwanlal gauba accused reported in 37 cr. L. J. 93. 7; and (4) the public prosecutor petitioner v. George williams alias victor respondent reported in a. I. R. 1951 madras 1042. There is even no allegation until now that the accused - opposite party has misused the liberty granted. We ultimately hold that the older for bail" as granted by the learned sessions judge - ln - charge, alipore need not be cancelled at this stage but proper and reasonable conditions should be imposed on the same to ensure a proper investigation. The first dimension of the learned deputy legal remembrance's contentions on merits is accordingly disposed of.

(8) The second dimension however of the contentions raised on behalf of the state is not per se maintainable viz. That the order passed by the learned police magistrate, alipore, on 11. 1273 should be set aside and the accused opposite party be remanded to police custody, as prayed for on behalf of the prosecution, for necessary interrogation and completing the investigation. In the first place, the said order was not even impugned on behalf of the state before the learned sessions judge, alipore; and secondly, it is only being challenged at a belated stage and that too in the context of an application for cancellation of bail arising out of a subsequent order passed by the learned sessions judge - in - charge, alipore, on 13. 12. 73. The second 'dimension also of the learned deputy legal remembrance's contentions on merits accordingly fails.

(9) In the result, the prayer for cancellation of bail is not allowed, but we modify the order of bail passed by the learned sessions judge - in - charge, alipore, 24 - parganas as follows : -

(a) that the accused opposite party shall not go out but remain in his residence at 188/10a, prince anwar shah, road, calcutta, until further order. Passed by the court, except for attending the court of the learned police magistrate or any other court taking up the matter on the respective dates fixed, when he will be accompanied by the officers deputed by the deputy commissioner, detective department, calcutta,, from his residence to the court and back (b) that all reasonable facilities are to be given to the investigating officer for interrogating, at his residence, the accused opposite party, who is stated to be ill, upon previous intimation being given in this behalf, and (c) that liberty is given to the petitioner to post police packets in front of the gate of the opposite party's residence at 188/10a, prince1 anwar shah road, calcutta.

(10) We further' direct that the investigation is to be expedited. The rule is disposed of accordingly.