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High Court Of Delhi
B.K.SARDARI LAL - Appellant
Versus
SUPT.OF CENTRAL TAIL - Respondent
Civil 68 of 1967
Decided On : 05/18/1967
BAIL - SECTION 497(5) - JURISDICTION OF COURT TO CANCEL BAIL - INTERPRETATION - BAILABLE OFFENCE - SECTION 188, INDIAN PENAL CODE - NOTIFICATION - PROOF - SECTION 78, INDIAN EVIDENCE ACT - JUDICIAL NOTICE - SECTION 57, INDIAN EVIDENCE ACT - APPLICABILITY - SECTION 10, CRIMINAL LAW AMENDMENT ACT, 1932 - DELEGATED LEGISLATION - CONSTITUTIONALITY - PRE-CONSTITUTION LAW - VALIDITY - JUDICIAL APPROACH - BAIL - PRINCIPLES - RELEASE ON BAIL - DELAY - JUDICIAL DETACHMENT AND OBJECTIVE APPROACH - EQUALITY BEFORE LAW - IMPARTIALITY OF JUDICIAL WING.
Fact of the Case:
The petitioner, a Sub-Inspector of Police, was arrested and remanded to judicial custody in two cases, one under section 188, Indian Penal Code (non-bailable) and the other under section 7, Criminal Law Amendment Act, 1932 (non-bailable). He was released on bail by a Magistrate, but the bail order was subsequently cancelled by the same Magistrate. The petitioner challenged the cancellation of bail and his continued detention, arguing that section 188, Indian Penal Code was a bailable offence and that the notification making it non-bailable was not properly proved. He also argued that the Magistrate had no jurisdiction to cancel the bail order before he was actually released.
Finding of the Court:
The Court held that section 188, Indian Penal Code was a non-bailable offence as per a valid notification issued under section 10 of the Criminal Law Amendment Act, 1932. The Court also held that the Magistrate had jurisdiction to cancel the bail order even before the petitioner was actually released, as this was necessary to protect the interests of administration of justice. The Court further held that the petitioner's detention was not illegal or improper, as he was in judicial custody under orders made by a competent Court for non-bailable offences.
Issues: 1. Whether section 188, Indian Penal Code was a bailable or non-bailable offence. 2. Whether the notification making section 188, Indian Penal Code non-bailable was properly proved. 3. Whether the Magistrate had jurisdiction to cancel the bail order before the petitioner was actually released. 4. Whether the petitioner's detention was illegal or improper.
Ratio Decidendi: 1. Section 188, Indian Penal Code was a non-bailable offence as per a valid notification issued under section 10 of the Criminal Law Amendment Act, 1932. 2. The notification making section 188, Indian Penal Code non-bailable was properly proved by producing a copy of the Gazette of India in which the notification was published. 3. The Magistrate had jurisdiction to cancel the bail order even before the petitioner was actually released, as this was necessary to protect the interests of administration of justice. 4. The petitioner's detention was not illegal or improper, as he was in judicial custody under orders made by a competent Court for non-bailable offences.
Final Decision: The petition for writ of habeas corpus was dismissed.
( 1 ) BAKSHI Sardari Lal, Sub-Inspector of Police, has presented this petition through his counsel under Article 226 of the Constitution for the grant of order direction or writ in the nature of writ of habeas corpus. According to the avernments in the petition, he was posted as Sub-Inspector of Police in P. S. Kamla market and on 14th April, 1967, he went on sick leave because he had an attack of bron"chitis. An entry to this effect was duly made in Roznamcha of P. S. Kamla Market. He claims to have been confined to indoor treatment and he got well on 22nd April, 1967 when, according to him, he regained his health and became fit to report for duty. Having come? to know that warrants for his arrest had been issued, he surrendered himself on 22nd April, 1967 before Shri Godha Ram, D. S. P. Delhi. He was accordingly prodocuced on that very day before Kumari Vimla Bhagat, Magistrate 1st Class, functioning as Duty Magistrate on that date, who released the petitioner on bail. Kumari Vimla Bhagat has been implead as respondent No. 3. It is then averred that there are two cases against the petitioner initiated by F. I. R. 87 and F. I. R. 88 of Police Station Chanakyapuri. New Delhi. After examining all the papers, police diary etc. , respondent No. 3 had ordered the petitioner s release on bail. In one case, the order was that the petitioner should furnish a bail for Rs. 7,000. 00 with one surety and in the second case he was required to furnish a bail for Rs. 5,000. 00 with one surety. A few minutes after these orders were passed, and when respondent No, 3 was taking up for consideration other application presented by the police for remand of other accused persons, she was called in her chambers. During this interval, the petitioner s counsel had filled in the surety-bonds and the bail bonds and indeed the sureties, according to the petitioner, were present in Court in person. Those two sureties were Dr. Manohar Lal, a sitting Municipal Councillor, and Shri Mohinder Nath. When respondent No. 3 returned from the chamber to the Court room, the sureties were produced before her along with the necessary documents, but the" learned Magistrate refused point-blank to entertain the sureties or to go through the documents including the affidavits. On the other hand, it was ordered that the S. H. O. should verify the status of sureties and the truth of the declarations made by them. The learned Magistrate, according to the petitioners averments did not say so in her order as to which station House Officer of alarge number of police stations in Delhi was to investigate. This, so proceeds the petition, was a deliberate act so that the orders may be left vague and acceptance of the surety and the bail-bond bedelayed. This conduct is described as mala fide conduct. The learned Magistrate fixed a period of 7 days for the Station House Officer to submit the report. This again, according to the petitioner, was intended to obstruct the petitioner s release on bail and indeed he was remanded to. judicial custody up to 29th April, 1967. On 29th April 1967, the petitioner moved an application before Shri Jagmohan, -Magistrate 1st Class, New Delhi, in whose Court the petitioner s trial was to be held and, therefore, who was competent to take congnizance of the matter then pending against the petitioner. In this application, it was expressly pleaded that the applicant was in judicial custody and had been remanded up to 29th. April, 1967. It was prayed that the sureties be accepted and the accused released pursuent to the orders made by. respondent No. 3 as Duty Magistrate on 22nd April, 1967. Shri Jagmohan directed the Ahimed to put up the orders, but according to the report, the bail orders had. not been received till then. The Ahimed or the Reader of the Court of respondent No, 3 was there upon called. upon to report. . This order was forwarded for compliance to Shri Goyal,. Reader to Shri l. D. Gupta, by V,bhagat. . Further notings on this, appl
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