1994 Supreme(Guj) 5

Gujarat High Court
Judgename :K.J.VAIDYA, K.R.VYAS
STATE OF GUJARAT - Appellant
Versus
HARISH LAXMAN SOLANKI - Respondent
CRIMINAL APPEAL 51 of 1991
Decided On : 01/13/1994

Headnote:Criminal Procedure Code, 1973 - Sec. 482 - Inherent power - Invoked to give necessary direction to secure attendance of acquitted accused during appeal and revision - Necessary correction in Form No. 45 of Schedule II directed.

       Criminal Procedure Code, 1973 - Secs. 482, 436, 437, 438 and 441 - Schedule II - Form No. 45 - Problem of securing attendance of accused acquitted in trial or released on bail at the time of appeal or revision - Form No. 45 securing bail and bail bond only upto trial stage - Deficiency in Form No. 45 pointed out and in the interest of administration of criminal justice Court invoked power under Sec. 482 to issue necessary directions to lower courts to secure bail bond covering appellate and revisional stage also.

       On perusal of above Form No. 45, it could be seen that the same prescribes two proformas whereby the accused and sureties undertake to appear in the first instance before the Investigating Agency and in the second, before the Trial-Court to face trial proceedings. Thus, it could be further seen that the said Form No. 45 is silent on the point as regard securing the attendance of the accused at the appellate stage. It is this silence which this Court desires to make it express and speaking. And, it is this gap, which this Court intends to bridge across, in the overall interest of justice. The reason is the alleged Legislative silence and the laxity on the point appears to be the root cause of the anxiety and head-ache for the police as well as Court to secure presence of the accused in many cases when appeal is admitted against them. It is under these circumstances, that the question which we are required to deal with is `whether this court in absence of express provisions providing for attendance of the accused at the appellate/revisional stage can direct the sub-ordinate courts to take bond and bail-bonds from the accused as well as his sureties over and above the stage of investigation and trial, covering the appellate stage, more particularly, on the probable technical ground that the directions in question ultimately being in nature of amending the particular provision of the Code, it lies only within the province of the Legislature, and therefore, this Court should refrain from trespassing into the said field. We having anxiously considered the pros and cons of the question involved, bearing in mind the overall interest of the accused on the one hand and that of the interest of justice, on the other hand, have reached to the conclusion that not only we are justified in directing the sub-ordinate courts to take bonds and bail-bonds of the sureties covering the appellate stage but not to do the same would be permitting the cause of justice to unnecessarily suffer dishonour before our own eyes, displaying total ignorance of our own extra-ordinary powers u/s. 482 of the Code. We feel that by virtue of Sec. 482 of the Code it is entirely within the powers of this Court to enunciate some useful directions which may take care of securing the ends of justice. We are conscious of the fact that inherent powers under Section 482 should be exercised quite sparingly, with utmost care and circumspection, and in the rarest of the rare cases. Thus, after administering fullest caution to ourselves, this Court feel that there indeed cannot be any better and greater sparing exercise of the power u/s. 482 of the Code than the one we have undertaken in this matter by adding something to aforesaid Form No. 45 by virtue of which the much-needed care is taken to secure the ends of justice by obtaining attendance of the accused at the time of hearing and deciding the appeal filed against him. We earnestly feel that since the Code is silent on the point of securing attendance of the accused at the appellate stage, we as a matter of duty must exercise our extra-ordinary inherent powers u/s. 482 of the Code by calling upon all the sub-ordinate courts to take bail and bail-bonds from the accused as well as his surety/ies not only to cover the stage of investigation and trial but also the appeal and revisional as well. Accordingly, we direct that while accepting the bail and bail bonds for securing attendance before the Officer incharge of the Police Station or Court, as provided in Form No. 45 in Schedule-II of the Code, all the Criminal Courts shall also take the same covering the appellate as well as revisional stage.

       [Paras 2 & 3]