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BOMBAY HIGH COURT
VAIDYA AND AGGARWAL, JJ.
State of Maharashtra, Petitioner
versus
Tukaram Shiva Patil and others, Opponents.
Criminal Appln. No.780 of 1975,
Decided on : 19 -8 -1975.
BAIL - CANCELLATION - MURDER CASE - PRACTICE OF REFUSING BAIL IN MURDER CASES - DISCRETION OF COURT - CANCELLATION OF BAIL - GROUNDS - INTERFERENCE BY HIGH COURT - SECTION 439(2) OF THE CRIMINAL PROCEDURE CODE, 1973.
Fact of the Case:
The accused were arrested for the murder of one Maruti Avaba Patil. They were released on bail by the Sessions Judge, Kolhapur, on the ground that the charge-sheet was not filed within 60 days of their arrest. The prosecution filed an application for cancellation of bail, alleging that the accused were threatening the witnesses and that there was tension in the village due to their release on bail. The Additional Sessions Judge, Kolhapur, dismissed the application, holding that the Sessions Judge had already considered the grounds urged by the prosecution and that the affidavit of the Sub-Inspector was hearsay evidence.
Finding of the Court:
The High Court held that the Sessions Judge had erred in granting bail to the accused, as it is the usual practice to refuse bail in murder cases. The Court also held that the Additional Sessions Judge had erred in dismissing the prosecution's application for cancellation of bail, as the affidavit of the Sub-Inspector was not hearsay evidence and the allegations made therein were sufficient to justify the cancellation of bail.
Issues: 1. Whether the Sessions Judge erred in granting bail to the accused in a murder case? 2. Whether the Additional Sessions Judge erred in dismissing the prosecution's application for cancellation of bail?
Ratio Decidendi: 1. The Court held that the Sessions Judge had erred in granting bail to the accused, as it is the usual practice to refuse bail in murder cases. The Court relied on the following principles: (a) It is a well-settled rule of construction that when a statute is repealed and re-enacted and the words in the repealed statute are reproduced in the new statute, they should be interpreted in the sense which had been judicially put on them under the repealed Act. (b) The provisions of the new Criminal Procedure Code are substantially similar to the provisions contained in the old Criminal Procedure Code but for some important changes. (c) In the present case, the Court was concerned with the powers conferred on the High Court and the Court of Session under Section 439 of the new Criminal Procedure Code, Clause (2) of which lays down: "A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." (d) The principles which guided the Courts in cancelling the bail under the old Code continue to be the principles to be observed even under the new Code under S.439(2). (e) The principles were not only most clearly and authoritatively stated by the Supreme Court in the aforesaid decision but were further repeated in the State v. Jagjit Singh, (1962) 3 SCR 622 = (1962 (1) Cri.LJ 215), in which while setting aside an order of the High Court granting bail, Wanchoo, J. (as he then was), speaking for the Supreme Court, observed at page 624 (of SCR) = (at p.216 of Cri LJ); "This, in our opinion, was the basic error into which the High Court fell in dealing with the application for bail before it, and it should have considered the matter even if it did not consider it proper at that stage to decide the question whether the offence was under Section 3 or Section 5, on the assumption that the case fell under Section 3 of the Act. It should then have taken into account the various considerations, such as, nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar other considerations, which arise when a court is asked for bail in a non-bailable offence. It is true that under Section 498 of the Code of Criminal Procedure, the powers of the High Court in the matter of granting bail are very wide; even so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence. This the High Court does not seem to have done, for it proceeded as if the offence for which the respondent was being prosecuted might be a bailable one." (f) Again in Ratilal Bhanji v. Asst. Collector of Customs, Bombay, 69 Bom LR 855 = (1967 Cri LJ 1576), a larger Bench of the Supreme Court, consisting of Chief Justice Wanchoo and Bachawat, shelat, Bhargava and Mitter, JJ. laid down the law as follows: "In the matter of admission to bail, the Code of Criminal Procedure makes a distinction between bailable and non-bailable offences. The grant of bail to a person accused of a non-bailable offence is discretionary under Section 497 of the Code and the person released on bail may again be arrested and committed to custody by an order of the High Court, the Court of Session and the Court granting the bail. Under Section 498 of the Code the High Court and the Court of Session may release any person on bail and by a subsequent order cause any person so admitted to bail to be arrested and committed to custody. A person accused of a bailable offence is treated differently; at any time while under detention without a warrant and at any stage of the proceedings before the Court before which he is brought, he has the right under Section 496 of the Code to be released on bail. The Code makes no express provision for the cancellation of a bail granted under Section 496. Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to abscond, the High Court has the power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This jurisdiction springs from the overriding inherent powers of the High Court and can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody. For the reasons given in Talab Haji Hussain's case, we hold that this inherent power of the High Court exists and is preserved by Section 561-A of the Code. The person committed to custody under the orders of the High Court cannot ask for his release on bail under Section 496, but the High Court may by a subsequent order admit him to bail again." 2. The Court held that the Additional Sessions Judge had erred in dismissing the prosecution's application for cancellation of bail, as the affidavit of the Sub-Inspector was not hearsay evidence and the allegations made therein were sufficient to justify the cancellation of bail. The Court relied on the following principles: (a) The practice of refusing bail in murder cases is not altered by the new Criminal Procedure Code. (b) The discretion conferred on the Court of Session and the High Court for cancellation of bail, or for granting bail, though wide, must be exercised not arbitrarily or capriciously but according to well established judicial principles bearing in mind the practice of Courts in this country for more than two Centuries. (c) The practice is not altered by the new Code. It cannot be departed from by the Courts except in very special circumstances which must remain undefined in view of the discretion. (d) The Sessions Judge and the Additional Sessions Judge, in the facts and circumstances of the present case, have unfortunately departed from the usual practice and granted bail notwithstanding that the charge-sheet filed against the accused is under Section 302 read with other Sections mentioned therein. (e) There was no special reason whatsoever fur the learned Sessions Judge to depart from the usual practice of refusing bail in murder cases. (f) The affidavit of the Police Sub-Inspector was not hearsay evidence and the allegations made therein were sufficient to justify the cancellation of bail.
Final Decision: The High Court allowed the prosecution's application for cancellation of bail and set aside the order of the Additional Sessions Judge, Kolhapur, dismissing the same. The Court also directed the accused to surrender to their bail forthwith.
VAIDYA, J. :- The State of Maharashtra has filed the above application under Article 227 of the Constitution and Sec.439(2) of Code of Criminal Procedure, 1973, praying for cancellation of the bail granted to the opponents, who are accused Nos.1 to 7, in a murder case, in respect of which Karvir Police Station has filed a charge-sheet in the Court of the Judicial Magistrate, First Class, at Kolhapur, on December 30, 1974, numbered as C.R. No.178 of 1974.
2. The offence is alleged to have taken place on October 31, 1974, at about 8-0 p.m., in the village Koge. One Maruti Avaba Patil, was murdered as a result of continuous blows given by axes and sticks. The prosecution alleges that the accused gave those blows. The prosecution relied on dying declarations alleged to have been made by deceased Maruti.
3. Opponents Nos.1 to 6 (Accused Nos.1 to 6) were arrested on November 1, 1974. Opponent No.7 was arrested on November 8, 1974. They applied for being released on bail in the Court of Session, Kolhapur, by filing Miscellaneous Criminal Application No.205 of 1974. It was opposed by the prosecution. The learned Sessions Judge Kolhapur, found that charge-sheet was not filed; the papers produced before him by the police did not show any evidence against Opponent No.6; and the condition of opponent No.7, who was bleeding with piles, was Serious. The learned Sessions Judge by his order, dated December 16, 1974, therefore, released only accused Nos.6 and 7, on their executing each a bond for Rs. 5000/- and furnishing security for Rupees 5,000/-, pending the decision of the Criminal Case against them, overruling the contention of the police that if the accused were released on bail, they were likely to tamper with the prosecution evidence by winning over the witnesses.
4. A further application was made on behalf of the remaining accused, viz. Miscellaneous Criminal Application No.219 of 1974. It was opposed by the police on the same ground, as was done previously. The learned Sessions Judge found that charge-sheet was filed on December 30, 1974, without the accompaniments of documents or relevant extracts, as contemplated by Sec.173(5)(a); and therefore, he was of the view that the accused were entitled to be released on bail, as a matter of right, under Section 167(2) of the Criminal Procedure Code, 1973. He held that the documents and extracts were supplied on the date on which he passed the order, observing:
"Technically considered, the investigation should be deemed to have been completed today."
In other words, the learned Sessions Judge was of the view that, having regard to the provisions of Section 167(2), notwithstanding the filing of the charge-sheet under Section 173, in the absence of the documents and extracts referred to in the charge-sheet, the investigation was not completed within 60 days, and, therefore, he released the remaining accused Nos.1 to 5 also on bail, upon each executing a bond for Rs. 5,000/- and furnishing security for Rs. 5,000/-.
5. The prosecution then filed another application, which is numbered as Miscellaneous Criminal Application No.24 of 1975, in the Court of the learned Additional Sessions Judge, on January 27, 1975, under Section 439 of the Code of Criminal Procedure, 1973, for cancelling the bail granted to the accused, on the following grounds :
"(i) The prosecution has bona fide information and reasonable belief that the accused after their release on bail, are threatening the eye-witnesses of beating and murdering them.
(ii) By the conduct of the accused and after their release on bail, the prosecution reasonably suspects that the conduct of the accused will destroy the prosecution case because, due to the fear of the accused to their lives and property, the witnesses may not state the truth before the Court.
(iii) By the conduct of the accused there is a tension in the village, which shall affect the prosecution case.
(iv) If the bail is not cancelled the applicant reasonably believes that the a
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