1. Accused released on bail under Section 167(2) Cr.P.C. for delayed charge-sheet; order set aside by sessions court but restored by High Court. (Para 3 , 7 )
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2002 Supreme(SC) 611
SUPREME COURT OF INDIA
B.P.Singh : H.K.Sema : M.B.Shah
Pandit Dnyanu Khot
Versus
State Of Maharashtra
Case No. : 620 of 2002
Date of Decision : 5/2/02
Important Points
Bail granted under Section 167(2) CrPC is deemed granted under Chapter XXXIII, permitting the High Court or Court of Session to cancel such bail under Section 439(2) CrPC, particularly if the release was illegal or erroneous.
Subject
Criminal Law - Bail
Act Referred
Headnote
(A) Code of Criminal Procedure, 1973 - Sections 167(2) and 439(2) - Release on default bail - Cancellation of bail - Section 439(2) specifically empowers the High Court or the Court of Session to direct that any person who had been released on bail under the chapter be arrested and commit him to custody (Para 8) - Proviso to Section 167 clarifies that every person released on bail under Section 167(2) shall be deemed to be so released under Chapter XXXIII - If a person is illegally or erroneously released on bail under Section 167(2), such bail can be cancelled by passing an appropriate order under Section 439(2) (Para 9).
(B) Distinction in cancellation of bail - The concept of setting aside an unjustified, illegal or perverse order is fundamentally different from the concept of cancelling bail on the ground that the accused has misconducted himself or due to the emergence of new facts requiring such cancellation (Para 9).
Facts of the case:
Accused persons were arrested for various offences under the Indian Penal Code and the Arms Act. They were released on bail by a judicial magistrate under Section 167(2) of the Code of Criminal Procedure on the ground that the charge-sheet was not submitted within the stipulated 90-day period. The state applied for cancellation of bail before the sessions court. The sessions court set aside the bail order, concluding that the accused were released on the 89th day, before the 90-day period had expired. The High Court later set aside the sessions court's order, ruling that the magistrate's order was an interlocutory order and therefore not revisable under revisional jurisdiction.
Findings of Court:
The High Court committed a basic error by not referring to Section 439(2) of the Code of Criminal Procedure, which provides specific power to the sessions court to cancel bail. It was the duty of the High Court to verify the records before setting aside the order of the sessions court.
Issues: Whether a bail order passed under Section 167(2) of the Code of Criminal Procedure is subject to cancellation by the Court of Session under Section 439(2) and whether the High Court erred in denying the revisional power by classifying the order as interlocutory.
Ratio Decidendi: Persons released on default bail under Section 167(2) are deemed to be released under Chapter XXXIII of the Code of Criminal Procedure, making their bail subject to cancellation under Section 439(2) if the release was erroneous or illegal. The power to set aside an illegal order is distinct from the power to cancel bail based on the subsequent conduct of the accused.
Result: Appeal allowed and the impugned judgment and order passed by the High Court is set aside.
(B) Distinction in cancellation of bail - The concept of setting aside an unjustified, illegal or perverse order is fundamentally different from the concept of cancelling bail on the ground that the accused has misconducted himself or due to the emergence of new facts requiring such cancellation (Para 9).
Facts of the case:
Accused persons were arrested for various offences under the Indian Penal Code and the Arms Act. They were released on bail by a judicial magistrate under Section 167(2) of the Code of Criminal Procedure on the ground that the charge-sheet was not submitted within the stipulated 90-day period. The state applied for cancellation of bail before the sessions court. The sessions court set aside the bail order, concluding that the accused were released on the 89th day, before the 90-day period had expired. The High Court later set aside the sessions court's order, ruling that the magistrate's order was an interlocutory order and therefore not revisable under revisional jurisdiction.
Findings of Court:
The High Court committed a basic error by not referring to Section 439(2) of the Code of Criminal Procedure, which provides specific power to the sessions court to cancel bail. It was the duty of the High Court to verify the records before setting aside the order of the sessions court.
Issues: Whether a bail order passed under Section 167(2) of the Code of Criminal Procedure is subject to cancellation by the Court of Session under Section 439(2) and whether the High Court erred in denying the revisional power by classifying the order as interlocutory.
Ratio Decidendi: Persons released on default bail under Section 167(2) are deemed to be released under Chapter XXXIII of the Code of Criminal Procedure, making their bail subject to cancellation under Section 439(2) if the release was erroneous or illegal. The power to set aside an illegal order is distinct from the power to cancel bail based on the subsequent conduct of the accused.
Result: Appeal allowed and the impugned judgment and order passed by the High Court is set aside.
Legal Category Hierarchy
- crime and sentencing
-
practice and procedure
- bail
-
revisional jurisdiction
- interlocutory order (Para 3)
- criminal procedure code
Table of Contents
2. Appellant contended High Court erred in holding magistrate's order interlocutory; State supported. Amicus curiae argued no interference warranted. (Para 5 , 6 )
3. High Court failed to consider Section 439(2) Cr.P.C. empowering cancellation of bail, including bail granted under Section 167(2). (Para 8 , 10 )
4. Bail under Section 167(2) Cr.P.C. is under Chapter XXXIII; can be cancelled under Section 439(2) for illegality or error. (Para 9 )
5. Appeal allowed; High Court order set aside; sessions court order restored; accused to surrender immediately. (Para 11 )
6. Can bail granted under Section 167(2) Cr.P.C. be cancelled under Section 439(2) Cr.P.C.?
Yes. Proviso to Section 167 deems such release under Chapter XXXIII, enabling cancellation under Section 439(2) if illegal or erroneous. (Para 9 )
7. Is an order granting bail under Section 167(2) Cr.P.C. an interlocutory order not revisable?
No; such an order is not interlocutory; it can be set aside by a superior court under Section 439(2) for being unjustified, illegal, or perverse. (Para 3 , 8 , 9 )
8. What is the distinction between setting aside bail and cancelling bail?
Setting aside deals with an unjustified, illegal, or perverse order; cancellation may require new facts or misconduct by the accused. (Para 9 )
(1) LEAVE granted.
(2) AS none was appearing on behalf of the accused despite service, we have appointed Mr. D.N. Goburdhan as amicus curiae to assist us.
(3) BY order dated 2nd May, 2001 passed in crl. miscellaneous application no. 14/2001, the Vth additional sessions judge, Kolhapur set aside the judgment and order passed by the judicial magistrate, first class, Malkapur releasing the accused under section 167(2) of the Criminal Procedure Code (Cr.P.C.) on the ground that the charge-sheet was not submitted within a period of 90 days. The High Court by impugned judgment and order dated 31.7.2001 passed in criminal application no. 1694 of 2001 set aside the judgment and order passed by the sessions judge, Kolhapur by holding that the order passed by the judicial magistrate. Malkapur being an interlocutory order was not revisable under the revisional jurisdiction.
(4) BEING aggrieved and dissatisfied by the said judgment and order, the de facto complainant has preferred this appeal by filing special leave.
(5) LEARNED counsel for the appellant submitted that the impugned order passed by the High Court is totally misconceived. It is his contention that the High Court committed a basic error in not referring to the order dated 25.1.2001 below exhibit 8. He further submitted that in any set of circumstances, the High Court ought not to have exercised its jurisdiction under section 439 to perpetuate injustice caused to the victims. Learned counsel appearing on behalf of the state also supports the contention raised by the learned counsel for the appellant.
(6) LEARNED counsel Mr. Goburdhan appearing on behalf of the accused submitted that the order passed by the High Court does not call for any interference. He referred to decisions in support of his contention that no grounds are made out by the prosecution or the complainant for cancellation of bail.
(7) IN the present case, against the accused, FIR for the offences punishable under section 302,307,147,148,149, 324 and 323 of IPC and section 27 of the Arms Act was registered. The accused were arrested on 28th October, 2000 and were produced before the judicial magistrate. They filed an application under section 167(2) Cr.P.C. on 25th January, 2001 for releasing them on bail on the ground that chargesheet was not submitted within stipulated time and the court released them on bail on the same date by exercising jurisdiction under section 167(2) Cr.P.C. The state filed an application on 31.1.2001 under section 437(5) and section 439(2) Cr.P C. before the sessions judge, Kolhapur for cancellation of bail. Before the said application could be finally disposed of. accused preferred an application exhibit 8 submitting that an application under sections 437 (5) and 439(2) was not maintainable before the sessions court and the state ought to have approached the learned magistrate for cancellation of the bail. That application was rejected by the learned additional sessions judge by order dated 3rd March, 2001. Thereafter, the learned additional sessions judge by judgment and order dated 2nd May, 2001 allowed the said application and set aside the order passed by the judicial magistrate on the ground that accused were released on 89th day, that is, before expiry of 90 days.
(8) IN our view, it appears that the High Court has committed basic error in not referring to the provisions of section 439(2) Cr.P.C. which specifically empower the High Court or the court of sessions to cancel such bail. Section 439(2) reads as under:
"439. Special powers of High Court or court of session regarding bail.- (2) A High Court or court of session may direct that any person who had been released on bail under this chapter be arrested and commit him to custody."
(9) PROVISO to section 167 itself clarifies that every person released on bail under section 167(2) shall be deemed to be so released under chapter XXXIII. Therefore, if a person is ill
