P L D 1952 Sind 43 (PLP)

TYABJI, C. J.‑In this revision application it is contended that an order passed by the Sessions Judge of Larkana on the 18th November 1950, cancelling bail and remanding the appli cant to custody was illegal, without 'jurisdiction, and also otherwise unjustified on merits. A dacoity took place on the night following the 20th June 1950, and applicant was one of the accused who were challaned on the 7th July before the Court or the resident Magistrate of Larkana. After the Magistrate had refused bail, the Assistant Sessions judge admitted the applicant to bail on the 1st Sep tember 1950. The applicant, with some others, was thereafter committed to the Sessions on the 27th October, and on the 13th November the Sessions Judge of Larkana cancelled the applicant's bail and remanded him to custody. There is very little that needs to be said on the merits. There is on the record evidence' of witnesses identifying the applicant as one of the dacoits, evidence of the tracker identi fying the footprints of the applicant, and also evidence showing the property stolen during the dacoity was recovered from the applicant. It cannot therefore be said that the order cancelling bail was not justified on the evidence. It is, how ever contended that as the order releasing the applicant on bail on the 1st‑ September had been passed by the Assistant Sessions judge, in exercise of the jurisdiction conferred by section 498 of the Criminal P. C., it was not an order releasing the applicant on bail falling under section 497 that clause (5) of section 497, therefore, had no application, and that neither Sessions Court nor the High Court could therefore exercise the powers conferred by that clause. It was further emphasised that after the decision in Jairam Das v. Emperor, 1945 A 1 R (P C) 94, it could not be claimed that even this Court, as the High Court, possessed any additional inherent power to cancel bail beyond that conferred by clause (5) of section

497. There is no doubt a great deal of authority in support of the proposition that when a Sessions Court or a High Court grants bail to a person accused of a non‑bailable offence, while the investigation, enquiry or trial was proceeding against the accused before the police or a Subordinate Court, the release on bail was not a release "under this section" within the meaning of these words in clause (5) of section

497. But this view appears to me to be erroneous and also entirely untenable after the decision in Jairam Das case. Section 496 contains a complete and exhaustive statement of the law relating to the grant of bail to a person accused of a bailable offence, applicable from the moment of his arrest, by the police or under the order of a Court, upto the conclu sion of the investigation enquiry and trial against him ; and section 497 similarly contains a complete and exhaustive statement of the law relating to the grant and cancellation of bail to a person accused of a non‑bailable offence from the moment of his arrest‑ by the police or under the order of a Court upto the conclusion of the investigation, enquiry and trial against him. These two sections contain the law which has to be applied by all Courts, including the High Court and the Court of Session, which have to pass any orders relating to the grant or cancellation of bail to any accused (not con victed) persons, and do not apply only to the investigating police and the Court holding the enquiry or trial. They lay down the conditions under which, and the principles upon which, bail may be granted, refused or cancelled. It is no doubt true that action under these sections has in the first instance to be taken by the police or the Magistrates who are specifically referred to in connection with certain matters ; but, it is to important to note at the same time that it was similarly necessary in clause (5) of section 497 to refer specifically to. the powers of the High Court and the Court of Session and distinguish them from the powers of the other Courts. Even where a specific reference to the duties cast upon the police or the Court holding the enquiry or trial has been made, it is clear that where the higher Courts are not satisfied that the orders passed by the subordinate authorities were proper the higher Courts have to see that the provisions of these sections are carried out by passing appropriate orders in accordance with the provisions of these two sections. There is nothing in sections 496 and 497 to show that these sections were intended to apply only to the investigating police and the Courts holding an enquiry or trial. On the contrary the language used, in my opinion makes it clear that they were intended to contain the entire law relating to the granting and cancelling of bail to accused (not convicted) persons, which had to be applied by all the Courts a like. The purpose and necessity of expressly limiting the appli cation of clause (5) of section 497 to cases where the release had been made "under this section" is also, it seems to me, quite clear. The words used in enacting this limitation are based on the necessary implication that a release on bail could either be of a person accused of a bailable offence, falling under the provisions of section 496, or of a person accused of a non‑bailable offence, falling under the provisions of section 497, there being no third alternative. and it was obviously necessary to limit the power conferred under clause (5), of cancelling bail, to cases of non‑bailable offence only. A release on bail by the High Court or Court of Session, acting under the jurisdiction conferred by section 498, was dealt with as falling either under section 496 or under section

497. By the words "under this section" it was intended to emphasise "and not under section 496". It was obviously necessary to make it clear, in the only provision which was enacted relating to the cancellation of bail in the chapter, that bail could not be cancelled in the case of a person accused of a bailable offence. Section 498 has been described by the Privy Council as one of those sections in Chapter XXXIX which deal with matters ancillary or subsidiary to the main provisions regard ing bail contained in sections 496 and

497. After laying down generally that the amount of bail has in every case to be regulated with a due regard to the circumstances, the section proceeds to confer a general power of revision on the High Court and the Court of Session empowering these Courts to interfere by granting bail or reducing the amount of bail. This power is conferred expressly not only in cases in which an appeal would lie from a conviction but also where that was not the case. The latter part of the section clearly does nothing more than confer jurisdiction. There is nothing whatever in the enacted words which in any, manner adds to or detracts from or modifies any of the provisions relating to bail in sections 496 and 497, genuralia specialibus non derogant and in my view, one cannot construe the section as if after the words "in any case whether there be an appeal from con viction or not" the words ".and, notwithstanding anything contained in section 497, in any circumstances whatever" had been added, in Jairam Das's case Lord Russel stated :‑ "The question of bail is dealt in part IX of the Code (Supplementary Provisions") under Chapter XXXIX which is entitled "Of Bail". The only granting of bail which is referred to in that chapter (which consists of sections 496 to 502 inclusive) is the granting of bail to accused persons. There is no reference therein to the granting of bail to persons who have been tried and convicted. It is true that in the Indian decisions, section 498 seems to have been treated as though it included cases in which persons already convicted were con cerned, but any such view seems to their lordships to be a misapprehension based upon a mistaken reading of a few words which occur in that section. The section runs thus :‑ '

498. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive, and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a Police Officer or Magistrate be reduced.' Two things must be observed in relation to the section. The only bonds "executed under this Chapter" are executed by persons who are accused (not convicted) persons ; and the words "whether there be an appeal on conviction or not" merely qualify or relate to the words "in any case", and only mean that all accused persons are within the section whether their case is appealable on conviction or not. In truth the scheme of Chapter XXIX is that sections 496 and 497 provide for the granting of bail to accused persons before trial, and the other sections of the chapter deal with matters ancillary or subsidiary to that provision". There is a long line of cases including Surindra Mohan Chucker butty v. Emperor 37 Cal. 412 : 6 I C 8, Ashraf Ali v. Emperor, 42 Cal. 25 : 27 1 C 839, Harehand Jhamatmal v. Emperor 10 S L R 208: 40 I C 290, King Emperor v Nga San Htwa 5 Rang. 276 (F. B.) : 1927 Rang. 205, K. N. Joglekar v. Emperor, 54 All. 115 (F. B.) : 1931 All. 504, Emperor v. Krishan Gopal, 15 Lah. 39 : 1933 Lah. 925, Emperor v. Muhammad Panah, 28 S L R 47 ; 1934 S 131, in which it has been held that the power conferred by section 498 on the High Court and the Court of Session in the matter of granting bail was entirely unfettered and uncontrolled by the provisions of section

497. Following these decisions I myself stated in A I R 1950 Sind 19, at page 22 where this point was incidentally referred to : "It is true that the powers conferred by section 498 on the High Court or on the Court of Session are not controlled by the limitations contained in section 497 and may in certain cases consequently be greater than those which could properly be exercised by the police or a Subordinate Court." This view however was based on an erroneous construction of the words "in any case", and is no longer tenable after the construction of the section by the Privy Council and their clear pronounce ment that section 498 only contained provisions which were ancillary and subsidiary to the provisions of sections 496 and 497 which "provide for the granting of bail to accused persons before trial", or in other words, that section 498 was controlled by those two sections. If it was a mistake to read the words "in any case" as including cases of convicted persons, because section 498 was subsidiary to section 496 and 497, it must necessarily be equally regarded as a mistake to read these words as covering cases in which it was expressly provided in those sections that bail could not be given. The position then is clearly this. Section 498 confers on the High Court and the Court of Session the jurisdiction to hear and grant, inter alia, applications for bail made by persons accused (not convicted) or non‑bailable offences, but when disposing .of these applications those Courts have necessarily to apply the relevant law applicable in such cases which is contained in the provisions of section

497. Any order regarding bail by such a Court is therefore necessarily an order granting a release "under this section" within the meaning of these words in clause (5) of section

497. I will next refer to the decisions in which the contention now pressed before us that when a Sessions Court or a High Court grants bail in a non‑bailable case pending before a Magistrate, it does not at under section 497 but only under section 498 has been considered, and in all except one case upheld. The earliest of these decisions cited before us is that by Kihdhede A. J. C. in Local Government v. Ghulam Jilani A I R (1925) Nag. 228, in which the contention was barely stated by the learned judge and upheld. The same contention was pressed a few months later before a Bench of two very eminent and learned Judges of the Madras High Court (Courts‑Trotter C. J. and Srinivasa Aiyangar, J.), in Public Prosecutor v. Sanyasayya Naidu and others, A I R (1925) Mad. 1224. In this case after bail had been given by a Judge c f the High Court, an application was made to the High Court for cancellation of the bail under clause (5) of section

497. It is clear from the language used by the learned Chief Justice that it was contended that clause (5) of section 497 did not apply, because bail has been given by the High Court under section 498 and not under section 497 and the learned Chief Justice rejected this argu ment by referring to the language used in section 497, and pointing out that an order passed by the High Court in such a case clearly fell under section

497. The learned Chief Justice also made it clear that he was aware of the fact that the point raised before him had caused some difficulty to others. He stated :‑ "I have never been able to see the difficulty. Section 497 (1) of the Code of Criminal Procedure runs as follows :‑ 'When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought, before a Court he may be released on bail'. "That is what happened here. By subsection 5 of that section the Court therein described "may cause any person, who has been released under this section, to be arrested and may commit him to custody". In the face of that, the argument that there is no power in this Court, whatever change of circumstances may be proved before it, to revise the order granting bail seems to be absolutely untenable. I hold that we have ample jurisdiction to exercise our discretion and order the re‑arrest of any person out on bail, if we feel the circumstances warrant or demand such a course . Mirza Muhammad Ibrahim v. Emperor, A I R (193.2) All. 534 ; The Crown Prosecutor v. N. S. Krishnan A I R (1945) Mad. 250 ; Seoti and others v. Rex, A I R (1948) All. 366 (F B); Ahmad v. Crown P L D 1950 Lah. 280, are all decisions in which it was held that the provisions of clause (5) of section 497 had no application when bail had been given by the High Court or Court of Session exercising the jurisdiction conferred by section 498, and it was further held in all these ;cases, that in such cases bail could, and could only, be cancelled by the High Court in exercise of its inherent powers under section 561-A of the Criminal P. C. It is noteworthy that except in A I R (1945) Mad. 250, no attempt was trade to consider and much less to refuse the reasoning of the learned Chief Justice of Madras in A I R (1925) Mad. 1224, and that Byers, J. who, sitting as a single judge, differed from the view taken by a bench of the same High Court, thought, clearly quite erroneously, as it seems to me that the learned Chief Justice had overlooked the fact that release by the High Court had been made under section 498 of the Code. It is further noteworthy that no reference was made to the Privy Council decision in Jairamdas's case, either in A I R (1948) All. 366 or in P L D 1950 Lah. 280 which were decided long after the Privy Council decisions. All these decisions, except that of Courts Trotter, C. J , were based on the view that a Court exercising the jurisdiction conferred by section 498 could not release a person on bail under the provisions of section 497, which with all respect to the learned judges, seems to me to be clearly fallactious. It is also clear that by construing sections 497 and 498 as the learned advocate for the applicant asks us to do, the provisions of those two sections relating to the grant and cancellation of bail in non‑bailable cases, instead of fitting together elegantly and working smoothly and reasonably, are thrown out of gear giving rise to anomalies and other consequ ences which cannot have been intended. In my opinion it must be regarded as a legal anomaly, if not an absurdity, that there should be one law for the Magistrate compelling him to keep an accused person in custody under certain circum stances, and another law for the Sessions Court or the High Court under which the accused person might under the same circumstances be regarded as entitled to bail. Another anomaly would be that while bail could always be cancelled when the accused was released on bail by the police or the trial Court, no Court could under any circumstances cancel bail if the accused was admitted to bail by the Sessions Court or the High Court, not even when it was clearly necessary to cancel bail in order to ensure that the trial was properly conducted and the ends of justice were not defeated. It was sometimes been suggested that this was intentionally so provided by the Legislature for the benefit of the accused who should be so fortunate as to find himself in such a position, but such a view can hardly be regarded as a compliment to the Legislature. In this predicament two means of escape from such a situation were found by the Courts both of which however, have‑ now been shown to be unavailing by the Privy Council decision in Jairam Das's case. The first of these was recourse to the supposed inherent powers of the High Court, as to which the Privy Council have stated :‑ "Finally their Lordships take the view that Chap ter XXXIX of the Code together with section 426 is, and was intended to contain a complete and exhaustive state ment of the powers of a High Court in India to grant bail, and excludes the existence of any additional inherent power in a High Court relating to the subject of bail". If there can be no additional inherent power to grant bail because of the complete and exhaustive statement of the powers of the High Court to grant bail in the provisions relating to the grant of bail, there can equally clearly be no inherent power to cancel bail because of the complete and exhaustive statement of the powers of all the Courts to cancel bail in clause (5) of section

497. The second method suggest ed of getting out of the difficulty was that the Sessions Court or the High Court when granting bail should do so on such conditions and in such terms as to leave it to the trial Court to cancel the bail granted if circumstances necessitated such a course. But this method can also no longer be availed of after the Privy Council have pointed out that no Court can by a suggestion or a direction confer on a Subordinate Court a power which was not conferred on the Subordinate Court by the Code. The Privy Council had to consider whether the view expressed in some of the Indian decisions was correct, that on a direction being given to that effect by the Privy Council, the High Courts in India would be empowered to grant bail to an applicant, whose appeal had been admitted by the Privy Council, and their Lordships stated :‑ "Moreover, their Lordships find it impossible to appreci ate how any suggession or direction by them in regard to an application for bail to the High Court, made or given when they decided to advise His Majesty that special leave to appeal from a sentence or conviction should be granted, can in any way determine or affect the question under considera tion on this appeal. The High Court either does possess power to grant hail in the given circumstances or it does not. If it possesses the power it possesses it independently of any suggestion or direction made or given by their Lordships. If it does not possess it, no suggestion or direction made or given by their Lordships could confer such. a power". If the trial Court had in the particular circumstances no power to cancel bail under clause (5) of section 497, no direc tion or order by the Sessions Court or the High Court could confer the power on the trial Court. For the reasons stated above, I am of the view that whenever a person accused of a non‑bailable offence is admit ted to bail, the release on bail, whether it be by the police, by a Magistrate, by the Sessions Court or by the High Court, must necessarily be a release "under this section" within the meaning of clause (5) of section 497 ; and in every such case bail can be cancelled under the provisions of that clause. The order of the Assistant Sessions judge in this case was therefore not without jurisdiction, and as the order was also not other wise improper I would reject this application. CONSTANTINE, J.‑I agree that the words "under this section" in subsection (5) of section 497, Criminal P. C., bear the meaning "in non‑bailable case", i.e., under section 497 as opposed to section 496, and are not intended to exclude cases where the High Court or Court of Session has acted under section 498 in releasing an accused person. I respectfully, but firmly, disagree with the view that the High Court or Court of Session, acting under section 498 in non‑bailable cases, are restricted to the grounds of release set out in section

497. Before 1923 the trial Court (an expression used for brevity's sake) had power to release a person accused of a non‑bailable offence only if it thought there were not reasonable grounds for believing him guilty. Section 498 was clearly necessary, in my opinion, in order to allow the High Court and Court of Session a discretionary power of release on other grounds. When, in 1923, discretion limited to specific grounds was entrusted to the trial Court, this amend ment did not affect the general discretion already conferred by section 498 on the High Court and Court of Session. As to the argument founded on Jairamdas's case the Privy Council, considering the question whether convicts fell within the scope of Chapter XXXIV, pointed out that sections 496 and 497 refer only to accused persons, whereas section 426 in Chapter XXI refers to convicted persons, and concluded that other sections of Chapter XXXIV had reference only to ac cused persons. Lord Russel said :‑ "In truth the scheme of Chapter XXXIV is that sections 496 and 497 provide for the granting of bail to accused persons before trial, and the other sections of the Chapter deal with matters ancillary or subsidiary to that provision". The words "that provision" do not mean "their provisions"; the use of the singular shows that Lord Russel referred only to the fact that section 496 and 497 deal with accused, and not convicted persons. A. H. Application rejected.