P L D 1963 Supreme Court 478 (PLP)

The law point raised for consideration in this appeal is whether a Criminal Court while granting bail, can order the incorporation in the bail bond, of a condition other than any of the conditions mentioned in section 499 of the Criminal Procedure Code. In the first order passed by the learned Chief Justice he observed as follows:‑ "Regard being had to the nature of the alleged activity of the petitioners and the stake they have in it, it seems extremely unlikely that any of them would run away. It has not been suggested that they can or would tamper with the evidence. The only question requiring consideration is that of taking advantage of the liberty for indulging in further activities of the same kind while on bail." It was argued by the learned Additional Advocate‑General in the High Court that the appellants were likely to take advantage of their liberty in making speeches on the same lines as the objected resolution. On a question put by the learned Chief Justice, it was stated on behalf of the petitioners that they has no intention of doing any such thing. It was further stated by the learned counsel on their behalf that they would have no objection to such a condition being included in the bond. In consequence of this agreement the learned Chief Justice directed that a condition that they will not make speeches or pass resolutions of the kind that is being regarded as seditious in the resolution in question while they are on bail, shall be incor porated as a condition of the bond. In bar of the second petition before the High Court it was urged by the learned Additional Advocate‑General that what the appellants sought would amount to a review of the previous order passed in a criminal matter and this was not permissible under the law. The point was however overruled on the ground that the second petition could be treated as a fresh application for bail and if it was found that the condition subject to which the bail was granted was not warranted by law, a fresh bail order omitting the condition could be passed. The appellants still adhered to their position that they had no intention of making any objectionable speech during the currency of their bail. What they objected to however was the incor poration of such a condition in the bail bond itself. Some cases were cited in support of the contentions raised by the parties before the learned Chief Justice and after considering them at length he summarized his own conclusion in the following terms:‑ "Though I am myself inclined to the opinion that when the law prescribes certain conditions in section 499, other con ditions should, by implication, be regarded as having been excluded, a review of the case‑law shows that the position in regard to this matter; particularly with reference to the powers of the High Court, as distinguished from the powers of the Sessions Judges and Magistrates is far from clear. `Can I then say that the condition which was previously attached was clearly illegal 7 I think, Not'. " As a result the learned Chief Justice felt that he would not be justified in passing an order different from his previous order. He thought that a condition having once been attached, its removal in the absence of a legal compulsion to do so might be interpreted as a licence to do that which it was agreed would not be done. We have heard Mr. A. K. Brohi, Mr. Muhammad Shafi and Mr. Bashir Ahmad for the appellants and the learned Advocate General on behalf of the State in this case. It has been strenuously contended on behalf of the appellants that the inclusion of a condition in the bail bond such as the one that falls for consideration in this case, would be completely outside the purview of section 499, Criminal Procedure Code, which is exhaustive of the conditions, which a bail bond may contain. On behalf of the State however it is urged that reading this section with the previous sections in Chapter XXXIX of the Code, it ought to be held that there was power in the Court to attach such a condition to the grant of bail and to incor porate it in the bail bond. In the alternative, it was suggested that such a condition could be ordered to be incorporated in the bail bond in the exercise of the inherent powers of the High Court under section 561‑A of the Code. Section 499 of the Code reads as follows:‑ "499 (1). Before any person is released on bail or released on his own bond, a bond for such sum of money as the police‑officer or Court, as the case may be, thinks sufficient, shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties con ditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police‑officer or Court, as the ease may be. (2) If the case so require, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge." It is emphasized on behalf of the appellants that the only condition which this section mentions as imposable on the sureties is that they should undertake that the person concerned shall attend at the time and place mentioned in the bond. The purpose of the bond, it is urged, is no more than ensuring the presence of the person bailed out, for the holding of an inquiry or trial against him, either by the Police or by a judicial tribunal. Any other conditions beside those mentioned in the section; it is maintained, are impliedly barred from incorporation in the surety bond. This contention appears to have considerable force, which appears to derive assistance from the well‑known maxim "expressio unius, exclusio alterius". The connotation of the word `bail' itself, as understood in law, supports the position adopted by the learned counsel only behalf of the appellants. An accused person is said, at common law, to be admitted to bail, when he is released from the custody of the officers of the Court and is entrusted to the, 8 custody of persons known as his sureties, who are bound to produce him to answer, at a specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted. (Vide Concise Law Dictionary by Osborn, 1927 Edition, page 32). This view receives further strength from a consideration of the provisions of the other sections included in Chapter XXXIX of the Code oil Criminal Procedure. Section 497 which relates to cases of bail, when the person concerned is accused of a non‑bailable offence: also talks of release of such a person on bail or at the discretion of the officer or Court concerned, on the execution by him of a bond without sureties, for his appearance as provided in the section. The expression for his appearance is stressed particularly in this context. Section 500 also enacts that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released. Section 502 provides that all or any sureties for the attendance and appearance of a person released on bail, may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants. The view contended for on behalf of the appellants is further fortified by reference to the provisions of Chapter XLII of the Code, as to bonds. Section 514 of this Chapter clearly draws a distinction between a bond for an appearance before a Court and other bonds, which would include a bond for good behaviour. The bond for appearance before a Court could only be forfeited for failure of the person concerned to attend at the time and place mentioned in the bond and not for contravention of any other condition, under the provisions of this Chapter. Bonds for keeping the peace or for maintaining good behaviour are dealt with in Chapter VIII of the Code. That Chapter lays down a special mode of procedure and inquiry before a person can be bound over to keep the peace or be of good behaviour. It is complained on behalf of the appellants that the impugned order of the High Court in effect seeks to impose on the appellants an obligation to be of good behaviour within the meaning of the provisions of Chapter VIII without the procedure therein outlined being resorted to. Whether a bail order can be subjected to a condition of this kind at all, without its incorporation in a bail bond, is a larger question, which does not call for consideration in the circumstances of the instant case. We are here concerned with the limited question whether such a condition can be incorporated in a bond required to be executed by sureties when a person is granted bail. There is nothing in the provisions of sections 496, 497 and 498 of the Code, which can lend support to the contention of the learned Advocate‑General that a condition of this kind can form an integral part of a surety bond or bail bond. Does section 561‑A of the Code then enlarge the powers of the High Court in this regard This section was inserted in the Code by an amendment in 1923 and is in these terms:‑ "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." The effect of this section on the powers of the High Court to grant bail fell for consideration by the Judicial Committee of the Privy Council in Lala Jairam Das v. King Emperor (72 I A 120). The actual point calling for decision in that case was whether the provisions of the Code of Criminal Procedure, conferred any powers on a High Court in India, to grant bail to a person who had been convicted and sentenced to imprisonment and to whom His Majesty in Council had given special leave to appeal against his conviction and sentence. The question was answered in the negative by their Lordships. But the following instructive obser vations were made, in the course of that judgment, with regard to the scope of the powers conferred on the High Court under Chapter XXXIX of the Code read with section 426 thereof. Their Lordships stated their conclusion after examining the relevant provisions as follows:- "Finally their Lordships take the view that Chapter XXXIX of the Code together with section 426 is and was intended to contain a complete and exhaustive statement of the powers of a High Court to India to grant bail and excludes the existence of any additional inherent power in a High Court relating to the subject of bail." At another place in the judgment it was observed that section 561‑A of the Code confers no powers. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. Similar observations were made by their Lordships with regard to the scope of section 561‑A of the Code in King‑Emperor v. Khwaja Nazir Ahmad (71 I A 203). This Court too had the occasion to comment on the limited scope of section 561‑A of the Code in Muhammad Samiullah Khan v. State (P L D 1963 S C 237). It is then difficult to sustain the contention raised on behalf of the State that the High Court is in a special position in the matte of bail as compared with other Courts by virtue of the powers derived from section 561‑A of the Code. In our opinion the correct position is that the powers of bail are exhaustively deal with in Chapter XXXIX read with section 426 of the Criminal Procedure Code. The last‑named section relates to powers of an Appellate Court to grant bail to an accused person who had been convicted, during the pendency of the appeal. The learned Advocate‑General argued that Chapter XXXIX includes no provisions enabling a Court to cancel bail granted to an accused person and yet such powers are undoubtedly being exercised and so the provisions in question should not be regarded as exhaustive. He urges that if a Court could refuse bail on entertaining an apprehension that the person concerned might repeat the offence with which he is being charged, then there should be according to the learned Advocate‑General, no objection in law to the inclusion of such a condition in the bail bond itself. But this would be introducing into the bond something extraneous to what is expressed in the exhaustive pro visions on the subject of grant of bail, in the Code. As observed above, we are not going into the question whether such a condition could be imposed on a person granted bail, without its incorporation in a bail bond. That question does not strictly call for determination in the present case. We are unable to accede to the contention that the imposition of such a condition and its incorporation in the bond would merely be ancillary to powers to grant bail under section 497 of the Criminal Procedure Code. The learned Advocate‑General also drew our attention to a Division Bench judgment of the Bombay High Court in Madhukar Purshottam Nondkar v. Talab Haji Hussain (A I R 1958 Bom. 1226) in which the view was taken that a bail granted to an accused person charged with a bailable offence under section 496 of the Code, can be cancelled on the ground that the accused was intimi dating witnesses, in the exercise of the inherent powers of the Court preserved under section 561‑A of the Code. This view was apparently upheld by the Supreme Court of India on appeal, as appears from the report of that case in A I R 1958 S C

376. The Supreme Court of India pronounced that though under section 496 of the Code of Criminal Procedure, a person accused of a bailable offence is entitled to be released on bail pending his trial, if his conduct subsequent to his release is found to be prejudicial to a fair trial, he forfeits his right to be released on bail and such forfeiture can be made effective by invoking the inherent powers of the High Court under section 561‑A of the Code. With the utmost respect, it seems to us, that this is an erroneous view in the face of the unqualified language used in section 496 of the Code. The policy of the Code seems to be that in the case of bailable offences the person accused has the indefeasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered necessary. There is admittedly no provision in the Code permitting cancellation of such a bail. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious `asset to be preserved undiminished. If of course the person enlarged on bail suborns witnesses there may be other remedies at law open against him, e.g. contempt proceedings or conceivably even proceedings to bind him over to keep the peace or be of good behaviour in certain circumstances. But to hold that on such grounds the bail granted under section 496 of the Code can be cancelled, amounts to saying that the High Court possesses inherent power to override the express provisions of the Code Such a conclusion would be contrary to principle and finds n support from any other authority. The Privy Council judgment in Lala Jairam Das's case was distinguished by the Supreme Court of India on the ground that their Lordships were not called upon in that case to consider the question about the inherent power of the High Courts to cancel bail under section 561‑A. The observation is correct, so far as it goes, but with respect, it must be pointed out that effect was not given to the pronouncement of the Privy Council that the powers to grant bail were exhausted by Chapter XXXIX read with section 426 of the Criminal Procedure Code and that section 561‑A did not add to such powers. The question in that case was not whether in a proper case the Court had jurisdiction to cancel the bail already granted to a person accused of a non- bailable offence. On the contrary, the point raised was whether the unfettered right of a person accused of a bailable offence to be enlarged on bail under section 496 of the Code, could be encroached upon in the supposed exercise of inherent powers. Such inherent powers could only be regarded as auxiliary or ancillary powers to make effective orders that could be passed under some provision of the Code, in the interest of justice. Whatever the position may be with regard to the power of a Court in requiring an undertaking from an accused person before granting bail to desist from the repetition of the offence with which he is charged, as a condition precedent to the grant A of bail, it seems fairly clear on the language employed by, section 499, Cr. P. C. that such a condition cannot be incor porated in a bail or surety bond itself. We therefore allow the appeal and quash the condition in question which was directed to be inserted in the bond. A.H.????????????????????????????????????????? ???Appeal accepted.