1968 P Cr (PLP)

The inherent power of the High Court being very wide and undefinable the limits of such power should be carefully guarded. Its inherent powers are recognised only to meet those cases for which no provision is made by the Code. This section merely safeguards all existing inherent powers possessed by a High Court necessary to secure the ends of justice. But other difficulties exist in the way of establishing that any such inherent power exists in a High Court. A power to grant bail to convicted persons would, if exercised, interrupt the serving of the sentence; the period of bail might even rover the whole of its term. Question came before the Privy Council whether a High Court has powers to grant bail under section 561-A, Cr. P. C. after special leave to appeal had been granted to the appellant. The facts of that case A I R 1945 P C 94 are that the appellant was given special leave to appeal against his conviction and sentence but the High Court had refused to release him on bail. This order was upheld by the Privy Council. It had held that Chapter 39 of the Criminal Procedure Code together with section 426 contains a complete and exhaustive statement 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. Section 561-A of the Code confers no powers. "it merely safeguards all existing inherent powers possessed by High Court necessary (among other purposes) to secure the ends of justice". It was further observed that sections 496 to 498, Cr. P. C. deal with cases of a person who is accused of any offence while section 426, Cr. P. C. deals with cases of any accused person who has been tried and convicted. While dealing with the powers of a High Court under section 561-A, Cr. P. C. it was observed as follows: - "There remains for consideration the question whether the alleged existence of a power in a High Court to grant bail in the stated circumstances can be established on other grounds. If it exists, it must be either because it was conferred on the High Courts by the Code, or because it is one of these inherent powers which are referred to in section 561-A of the Code. So far as the provisions of the Code are concerned, their Lordships can discover nothing therein to justify the view that any such power is thereby conferred on a High Court. The only provision in the Code which refers to the grant of bail to a convicted person is to be found in section

426. Section 426 forms part of Chapter 31 of the Code which is entitled "of appeals" and is included in Part 7 of the Code . . . consideration of section 426 reinforces the view that section 498, has no reference to convicted persons; for, if they were covered by sec tion 498, would confer upon the Court of Sessions a power to grant bail to a convicted person appealing to the High Court, a power which under section 426 is confined to the High Court. There Lordships feel no doubt that the Code confers no power on a High Court to grant bail in the case of a convicted person, and the fact that he has obtained leave, from His Majesty in Council to appeal from his conviction or sentence makes no difference in this regard . . . . Finally their Lordships take the view that Chapter 39 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 in India to grant bail and excludes the existence of any additional inherent power in a High Court relating to the subject of bail." The result of this decision was the amendment of section 426 and addition of sub-clause 2 (b) which reads as follows:

"Where a High Court is satisfied that a convicted person has been granted special leave to appeal to the Supreme Court against any sentence which it leas imposed or maintained, is may if it so thinks tit order that pending the appeal the sentence or order appealed against be suspended and also if the said person is in confinement, that he be released an bail."

5. The teamed Advocate-General has relied upon a case reported in A I R 1952 All.

39. It refers to the powers of the High Court to cancel bail granted under section 198, Cr. P. C. It was held that the bail granted under section 498, Cr. P. C. can be cancelled only by this Court in the exercise of inherent jurisdiction under section 561-A, Cr. P. C. whatever other remedies against the applicant or the sureties be on account of the breach of the condition imposed. In support of his case under section 21 of the General Clauses Act, the learned Advocate- General has relied upon the decision reported in PLD 1956 F C

46. The acts of that case are that appellant was granted remission of sentence and order to this effect was passed by the former Govern ment of Punjab in early August 1954 and he was to be released on the Independence Day, i.e. on the 14th August 1954. But this order was cancelled on the 13th August with the result that the appellant was not released on the Independence Day. The position taken on behalf of the appellant before the High Court was that an order of unconditional remission of sentence: could not be cancelled, while on behalf of the State reliance was planed on section 21 of the General Clauses Act. It was held that apart from the question whether the provisions of section 21, General Clauses Act applied or not to orders passed under section 401, Cr. P. C. Government must in the nature of things possess power to recall its own orders. In fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation, Locus penitentiae, i.e. the power of resisting till the decisive step is taken is left with the Government if the unconditional order has not been carried into affect. 'fill then there is no reason to restrict the power to modify or cancel such an order. It is thus evident that this decision is not based on the provisions of section 21 of the General Clauses Act. In this particular case, the appellant has already been released on bail. Next case relied upon by the learned Advocate-General on this point is reported in P L D 1957 Lah.

892. It was a case under Punjab Control of Goondas Act. A question arose whether a Tribunal could cancel the bail at any stage of the proceedings. It was held that: - "Moreover by virtue of section 21, General Clauses Act the authority which can, pass an order is entitled to vary, amend, add to or rescind that order."

6. Inherent powers of a High Court under section 561-A, Cr. P. C. have been clearly explained in a case reported in P L D 1958 S C

333. It was observed that: - "Before the insertion of section 561-A in the Code of Criminal Procedure by Act, XVIII of 1923, it was the practice of the High Courts in India to expunge such passages from the judgments of subordinate Courts, but in none of the cases was the source from which this power was derived examined. In some of the cases, the Court contended itself by stating that such jurisdiction was inherent to a High Court. The matter was fully considered from the first time by Stuart and Gokal Parshad, JJ. in Dunn v. Emperor (l) where distinguishing the earlier cases on the ground that the Courts which had ordered the expunction of disparaging remarks from the judgments of lower Courts had done so while adjudicating on final orders in appeal, they held that where effective orders of the lower Courts are not Wore the High Court either in appeal or on revision, the High Court has no jurisdiction to expunge remarks or passages from the judgment of the lower Court. At the conclusion of the judgment the learned Judges suggested the amendment of the Code if it was thought that the grievances of persons who were unjustly criticised by Courts of law were so great as to require a special enactment for their protection. It was after this judgment that section 561-A was inserted in the Criminal Procedure Code in 1923. It was stated in the Objects and Reasons that the object of the new section was to save the inherent powers of the High Court to expunge objectionable matter from the record of a lower Court. After the new section came into force the Allababad High Court vide Panchanan Banerji v. Upendra Math thought that the law as laid down in Dunn v. Emperor had been changed and that the High Courts power to delete offensive remarks or passages from the judgments of lower Courts was recognised and this view is held by almost all the High Courts with the exception of the Bombay and Patna High Courts which still hold that the law was correctly laid down in Dunn v. Emperor and that it has not been altered by the insertion of the new section Rogers v. Shriniwas Gopal Bhutnath Khawas v. Dasrathidas. The latest Bombay case adopts a new approach to this question, namely, that while the High Court has no jurisdiction to expunge, it may in a proper case, on an application under section 561-A, judicially correct the judgment of the lower Court by pointing out that the remarks objected to were unjustified. Thus there is divergence of opinion even on the question whether under section 561-A of the Code of Criminal Procedure the High Court has an inherent power to expunge undesirable remarks from the judgment of a lower Court." Next case on this point is reported in A I R 1959 All.

315. It was held that in Criminal cases High Court has power under section 561-A amongst other matters to alter or to review its own judgment also provided it is necessary to do so to give effect to any order under the Code of Criminal Procedure or to prevent abuse of process of any Court and to secure the ends of justice. The inherent powers under section 561-A have to be exercised stubbornly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. Generally it may be stated that the powers under section 561-A to re-hear a case can only be exercised where the facts of the case are shocking to the conscience. Section 561-A thus would not authorise this Court to re-hear a case where the applicant or the appellant was not heard due to some default of his or of his counsel". Two more cases to explain the powers of this Court under section 561-A, Cr. P. C. are reported in P L D 1963 S C 237 and

478. The first case arose under the provision of Contempt of Court Act. It was observed that the jurisdiction under section 561-A, Cr. P. C. is of extra ordinary nature intended to be used only in extraordinary cases where there is no other remedy available. It is of limited scope and cannot be utilised where there is other express remedy provided by .the Code of Criminal Procedure. In the exercise of the inherent jurisdiction under this section, the High Court can neither exercise the powers of a Court of appeal nor can it enhance the sentence nor can it even re-consider the question. It is designed to prevent an abuse of the process of Court and cannot be regarded as being wide enough to give to the High Court the same power that it has under section 435 read with section 439 of the Code of Criminal Procedure to examine the correctness legality or propriety of any finding, sentence or order passed by an inferior Court . . . . In the exercise of its revisional jurisdiction the High Court can even, in appropriate cases, disturb findings of fact, as, for example, where the subordinate Court has wrongly placed the onus of proof or not applied the correct principles relating to the appraisement of evidence or an important piece of evidence has been ignored. These things the High Court cannot do under section 561-A. The two jurisdictions are thus fundamentally different. Indeed, as a rule, the inherent jurisdiction of the Court to correct an abuse of process of Court or a patent injustice cannot be invoked where there is an express provision in the Code underwhich the case can be adequately dealt with." In the next case question arose for consideration whether condition could be attached while admitting an accused person to bail. It was observed: - "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 provision 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?" While dealing with this aspect of the case reference was made to Privy Council decision reported in A I R 1945 P C

94. It has also referred to a decision given by Bombay High Court reported In A I R 1958 Bom. 1226 which was upheld by the Supreme Court of India on appeal reported in A I R 1958 S C

376. It has been observed by our own Supreme Court: - "With the utmost respect, it seems to us, that this is an erroneous view in 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 cancel lation 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 the principles and find no support from any other authority. The Privy Council judgment in Gala Jalram Das's cafe 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 39 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 bad 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 power could only be regarded as auxiliary or ancillary powers to make effective odors that could be passed under some provisions of the Code, ire the interest of justice." 7, It is evident from these decisions that this Court bas no inherent powers under section 561-A, Cr. P. C, to grant bail or attach conditions when such order is passed. Section 426 Cr. P. C. does not empower this Court to cancel the bail granted to the appellant. Powers given to Courts under section 497 (5), Cr. P. C. to cancel the bail in the case of a person who is accused of some offence have not been given to the same Courts in respect of an appellant. In view of these decisions I hold that section 561-A, Cr. P. C. does not empower this Court to cancel the order granting bail to the appellant under section 426, Cr. P. C.

8. On facts, the case of the learned Advocate-General is that the story given by the prosecutrix who is a foreign girl and who has apparently no reason to falsely implicate the present appellant appears to be probable, natural and therefore true. She is supported by the circumstantial evidence. Injuries were found on her person and secondly she is corroborated by Abdul Kadim who was informed by her about this incident immediately. He too has no reason to falsely implicate the appellant. First report, according to him, was lodged without any delay. On the other hand Mr. Tufailali, the learned counsel for the appellant, in support of this argument that she needed money at that time had referred me to several factors. According to him though she is unmarried she is used to sexual intercourse for very long time. He had referred me to the medical evidence to show that she was running monthly period when this incident of rape is alleged to have taken place. The learned Advocate -General had relied upon a case reported in A I R 1952 S C

54. It was held: "The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be conviction but that the necessity of corroboration as a matter of prudence, except where the circumstances make it safe, to dispense with it, must be present to the mind of the Judge, and in jury cases must find place in the charge, before the conviction without corroboration can be sustained." It was further observed that :- "When corroborative evidence is produced it also has to be weighed and in a given cases, as with other evidence even though it is legally admissible, for the purpose on hand, its weight may be nil." Mr. Tufail Ali had referred me to a case reported in Muhammad Abdul Khaliq v. The State PLD1960SC

325. In fact the learned Advocate -General had also made a reference to this case. It has been held that: - "On principle, in a case of rape where the evidence and condition of the prosecutrix form the only evidence which the Court has to go upon, it is necessary in order to sustain a conviction, that it should at least be found that the woman's statement is in accordance with all probabilities and has all the appearances of having been honestly made." The facts of that case show that the victim had received simple injuries on her person and complaint was made to several persons immediately after the incident. It would mean that on facts both the cases on this point are very similar. It was held that recital of story about this incident to number of relations shortly after the incident is not sufficient corroboration of prosecutrix evidence. However, these facts were not brought to my notice and as such I had no opportunity to examine the question of releasing the appellant on bail from this angle when an application under section 426, Cr. P. C. came up for hearing before me as no objection was raised by the Additional Advocate-General. There is one more aspect besides the factors referred to above by the Advocate-General and the learned counsel for the appellant. -Apparently she had no reason to leave the bungalow late in the night and expose herself to strangers as she very well knew that she would be safe in that bungalow as the appellant was not anxious to have sex act with her because she was running the monthly period. This point requires consideration:

9. I have already held while dealing with the legal objection that this Court cannot exercise its inherent powers under section 561-A, Cr. P. C. to cancel the bail. Application is accordingly rejected.

10. For the reasons stated above and also because this case has got some importance, the appeal requires very urgent disposal. I find that even the trial Court had expedited the proceedings. The victim is a foreigner and is likely to leave this country as she is on hitch-hike tour. Matter should be fixed for hearing on 7-9-1965. Application rejected.