These petitions have been filed by the Crown Prosecutor, Madras, under Section 497(5) of the Code of Criminal Procedure for the re-arrest of the two respondents under the following circumstances:

These respondents were arrested by the police on 27th December 1944 in connection with the death of one Lakshmikantam, who is alleged to have been murdered on the morning of 8th November 1944 in Vepery, Madras, by two persons named Vadivelu and Nagalingam. Their application for bail was rejected by the Commissioner of Police, Madras, in his capacity as a Presidency Magistrate, but on an application to the Vacation Judge of this Court they were enlarged on bail on 29th December 1944 by Patanjali Sastri J. pending the investigation of the case against them. The conditions were that each of them should execute a bond for Rs. 10,000 with two sureties each for Rs. 10,000, and they were directed to leave Madras immediately after their release and not to visit or remain in Madras until the commencement of the trial of the case.

The grounds on which their applications for bail were based were that they were not arrested until seven weeks after the alleged murder, that they had no connection with it whatever, and that they were innocent. The respondent Bagavathar further alleged that he must have been falsely implicated in the case. The charge-sheet has since been filed before the Chief Presidency Magistrate on 27th January 1945 against eight accused, of whom these respondents are the third and fourth accused. Briefly, the case against these respondents is that they were members of a criminal conspiracy to murder the deceased, in pursuance of which he was attacked and stabbed on 8th November 1944 by Vadivelu and Nagalingam. In the affidavit supporting these petitions it is stated that in addition to the material available at the time when these respondents were arrested and released on bail, further evidence has been obtained showing that these respondents were active members of the conspiracy and that they hired other members of it to murder the deceased. The learned Crown Prosecutor has stated before the Court that there is now clear and cogent evidence available in proof of the guilt of the respondents, and he presses for the revocation of the previous orders granting bail and the re-arrest and committal of the respondents to custody.

The main objection taken by both the learned Counsel for the respondents is that the power conferred by Section 497(5) of the Code of Criminal Procedure to cancel, bail and re-arrest an accused is expressly limited to cases in which the accused has been released under Section 497 of the Code, and that the provisions of clause (5) of this section have no application to an accused person who has been released on bail under Section 498. On the facts now before the Court it is abundantly clear that these respondents were not released on bail under Section 497 of the Code, which applies only when a person is released on bail at the time of his arrest or by a Court before whom he appears or is produced at the time of his remand, enquiry, or trial, but under Section 498 of the Code after their prior application had been refused by the Presidency Magistrate. Section 497(5) is in these words:

“A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.”

Mr. V.V Srinivasa Ayyangar contends that the words of this clause are devoid of any ambiguity and that they expressly limit the power to revoke bail and direct the re-arrest of an accused to cases in which bail has been granted under Section 497 of the Code.

The learned Crown Prosecutor meets this argument in two ways: his first submission is that the decision of this Court in The Public Prosecutor v. M. Sanyasayya Naidu(1) is against this view; and his second submission is that quite apart from Section 497(5) of the Code, the Court has power to make such an order in the exercise of its inherent jurisdiction under Section 561-A of the Code.

In the case cited five persons charged with murder had been enlarged on bail by one of the learned Judges of this Court after previous attempts to obtain it had failed, and a few days later an application was made to revoke the bail granted and to remand them to custody. The power to make such an order was questioned before the Bench but the learned Chief Justice, with whom Srinivasa Ayyangar J. agreed, held that the Court had ample jurisdiction to direct the re-arrest of any person out on bail. The portion of the judgment dealing with this aspect of the matter is somewhat brief, and it seems open to considerable doubt whether the argument now put forward by Mr. Srinivasa Ayyangar was raised in that case. This is how the learned Chief Justice dealt with the contention then advanced:

“The accused applied for bail and ultimately bail was granted, on the information then before him, by my learned brother in this Court. It was first argued that, under the Code, there was no power inherent in this Court to revise any such grant of bail. I have never been able to see the difficulty. Section 497(1) of the Code of Criminal Procedure runs as follows:—

‘When any person accused 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, he may be released on bail.’

That is what happened here. By sub-section 5 of that Section, the Courts therein described ‘may cause any person, who has been released under this Section, to be arrested and may commit him to custody.’ In the face of that, the argument that there is no power in this Court, whatever change of circumstances may be proved before it, to revise the order granting bail seems to be absolutely untenable. I hold that we have ample jurisdiction to exercise our discretion and order the re-arrest of any person out on bail, if we feel the circumstances warrant or demand such a course.”

The reference in the judgment to the Court's inherent power and the exercise of its discretion suggest that Section 561-A of the Code was the basis of the argument then advanced and that no attempt was made to press before the Court the limitations imposed by the words of clause (5) of Section 497. This view receives considerable support from the way in which the learned Chief Justice expressed himself. After referring to the circumstances under which the accused were ultimately released by his learned brother and after quoting the first part of Section 497(1) of the Code, he remarked “That is what happened here.” If previous applications for bail had been refused, as the use of the word “ultimately” in the opening portion of the judgment suggests, then with the greatest respect to the learned Chief Justice he appears to have been under a misapprehension. If there had been previous but unsuccessful applications for bail, then the ultimate release of the accused by Srinivasa Ayyangar J. was not under Section 497 but was under Section 498 of the Code. Obviously this point was never urged before the learned Judges, and I consider that learned Counsel is right in his contention that this decision should not be regarded as binding authority on the scope of Section 497(5) of the Code, although from some of the expressions used by the learned Chief Justice it must be regarded as authority in support of the view that the Court can make such an order in the exercise of its inherent jurisdiction under Section 561-A of the Code.

In Local Government v. Gulam Jilani objection was taken to the jurisdiction of the High Court to interfere with an order by a Sessions Judge granting bail under Section 498 of the Code after an earlier application before the committing magistrate had failed. This is how the learned Judge disposed of the matter.

“There is much force in this argument addressed in support of the preliminary objection, and I am inclined to the view that the applications for revision as laid down under Section 497, sub-section (5) are not maintainable. I am further of opinion that they are not maintainable under Section 498 as it stands but at the same time I am of opinion that this does not and cannot mean that the High Court has no power to interfere with orders made in proceedings for bail when such proceedings are proved to be illegal.”

The learned Judge then went on to discuss the extent to which Sections 439 and 561-A of the Code were applicable; but in the present case Section 439 has no application, and it only remains to discuss how far Section 561-A of the Code can be relied on.

The learned Crown Prosecutor contends that if the Court should consider that Section 497(5) of the Code has no application to cases of this kind, the Court has nevertheless ample jurisdiction under Section 561-A to cancel the bail and re-commit an accused person to custody. The learned Counsel for the respondents meet this argument with the contention that wide as the powers of the Court may be under Section 561-A of the Code, they do not enable the Court to create jurisdiction which it does not possess or to enlarge jurisdiction which is expressly limited by the section which confers it. There is no necessity to refer to the ample authority in support of this view, because if the terms of the orders enlarging these respondents on bail are examined it will readily be seen that by directing their re-arrest there can be no question of the Court now exercising a jurisdiction which it does not possess.

The orders in each case are identical, and they are in these words:

“IT IS ORDERED that pending the said investigation in Crime. No. 2201 of 1944 on the file of the Crime Branch, Madras, the petitioner herein be released on bail on his furnishing security in his own bond for the sum of Rs. 10,000 with two sureties each for Rs. 10,000 to the satisfaction of the Chief Presidency Magistrate, Egmore, Madras, and it is further ordered that the petitioner herein do leave Madras by the earliest train after his release and that the said petitioner shall not be in or visit Madras till the commencement of the trial of this case by the magistrate.”

If the learned Judge had without any qualifications ordered the release of the respondents on bail pending the disposal of the case against them, then I should be disposed to accept Mr. Srinivasa Ayyangar's argument that in the absence of extraordinary circumstances or a breach of the conditions the Court would have no jurisdiction to amend or interfere with an order in such absolute terms; but it is clear from the terms of these orders that Patanjali Sastri, J. did not contemplate any period beyond the investigation of the case during which the respondents were to be on bail. There can be no doubt that the learned Judge left open entirely the question whether the respondents were to continue at large after the police had completed their investigation, and there would appear to be nothing to have prevented the police from applying to the Presidency Magistrate on the presentation of the charge-sheet to commit the respondents to custody.

It may be stated that in practice cases of this kind can rarely present any real difficulty, because orders granting bail usually conclude with a saving clause such as “or until the further orders of the Court”; so that quite apart from the provisions of Sections 497(5) and 498 of the Code, the Court thereby reserves to itself liberty to amend its orders as circumstances may require.

On the merits something has been said about the probability of these respondents interfering with the witnesses, but in the absence of any definite allegations of this kind I do not attach much importance to this suggestion. The affidavits in support of the applications suggest that the fact of these respondents continuing at large will, on account of their considerable influence, have a psychological effect on the prosecution witnesses. Although learned Counsel have strongly criticised this suggestion, there is no doubt that influential and powerful accused can and do bring pressure to bear on persons who are known to be giving evidence against them. However, this aspect of the matter requires no further consideration because it must be apparent that persons charged with murder can be enlarged on bail pending their trial only under exceptional circumstances. The learned Crown Prosecutor quite rightly states that he does not propose to refer at this stage to the evidence now available against these respondents. He states that there is satisfactory evidence available in proof of the charge against them, and that statement is entitled to considerable weight.

The result is that although Section 497(5) of the Code can have no application to the case of an accused person who has been released on bail under S. 498 of the Code, I consider that in the present case the Court has adequate jurisdiction under S. 561-A of the Code to continue or discontinue an order granting bail in these circumstances which enures for a limited period only. The respondents are accordingly ordered to be re-arrested and committed to custody pending the completion of the committal proceedings against them or until the further orders of this Court.

N.R.R