Kaghulir Singh and Others vs The State of Bihar

On the intervening night of November 29/30 1984, the Security Police Patrol on duty near Jogbani check post noticed a jeep speeding towards the Indo-Nepal border. The jeep was stopped. There were five occupants in the jeep. One of them was Simranjit Singh Mann who had been dismissed from the Indian Police Service. An order of preventive detention under the National Security Act had been made against him on August 28,1984. He was wanted in that connection but had gone 'underground'. On being questioned by the police patrol party, they first refused to disclose their names and identity. This aroused the suspicions of the police party. One of the officers was about to identify Simranjit Singh Mann. The five occupants in the jeep were searched as also their baggage. A sum of Rs. 62,722 was found with one the occupants, who it is alleged offered the police party a large amounts as bribe if they were allowed to cross the Indo-Nepal Border. As a result of the search, a number of documents and other articles were seized From the person of Simranjit Singh Mann were seized, a copy of a letter dated June, 2,1984 from Simranjit Singh Mann to the Chief Secretary. Punjab, a copy of the letter of resignation dated June 18, 1984 of Simranjit Singh Mann, the Passport of Simranjit Singh Mann, two photographs of Jarnail Singh Bhindrawala, a letter from Simranjit Singh Mann to Birbal Nath, a letter addressed to one Arun Kumar Agarwal asking him to help the bearer in all possible ways and an anonymous letter warning Simranjit Singh Mann of likely attempts to liquidate him and advertising him to leave the country. Simranjit Singh Mann refused to sign the seizure memo. From Karaikar Singh's person, currency notes of the value of Rs. 62,722 were seized. An amount of Rs. 25,000, it is said, was offered as bribe to the Police Officers. From Jagpal Singh's suit case was seized a booklet in English entitled 'Sikhs and Foreign Affairs' and a combined road map of India, Pakistan, Bangladesh, Sri Lanka and Nepal. Among other articles -seized were a booklet in English written by Narinder Singh Bhuller said to contain anti-Government and sikh separatist propaganda, a notebook containing material about the world's leading underground organisations said to be in Mann's handwriting, a register in which Mann was said to b; writing the history of Amritsar in which the Indian Army is said to have been described as the enemy, consequent on operation Blue-Star, extremist Sikhs are said to be described as nationlists and defenders of the motherland and Mrs. Gandhi, the then Prime Minister is described in a derogatory fashion. At the check post, a photograph of Simranjit Singh Mann was available and i was verified that the person suspected to be Simranjit Singh Mann was actually Simranjit Singh Mann. The other persons gave their names as Kamikar Singh, Charan Singh, Jagapal Singh and Raghubir Singh. Kamikar Singh was the person who had made the offer of bribe. A First Information Report was then registered at the Jogbani Police Statioo for offences under secs. 121A, 124A, 123, 153A, 505 and 120B of Indian Penal Code and Section 5 (iii) of the Prevention of Corruption Act. Investigation started. On December 11, 1985 a charge-sheet was submitted before the Judicial Magistrate First Class Area against the five accused persons for offences under sees. 12A, 123, 124A, 153A, 165A, 505 and 120B of Indian Penal Code.

Before the charge-sheet was filed, on December 4, 1984 Simranjit Singh Mann was served with the order of detention under the National Security Act the sent to Bhagalpur Jail. The other four accused were also detained under the National Security Act at Bhagalpur. On March, 1, 1985 the four accused other than Simranjit Singh Mann moved the Judicial Magistrate First Class Araria for bail in the criminal case which was then being investigated claiming to be released underthe proviso (a) of Section 162 [2] of the Code of Criminal Procedure. The learned Magistrate directed their rehase on bail, but imposed a condition the sureties should be residents of Araria town. The four accused persons filed a petition requesting the Magistrate to accept sureties from Purnea or cash. The petition was rejected. Ultimately the four accused were able to get sureties from Araria, but even so they could not be released as they were under detention under the National Security Act. Simranjit Singh Mann was also directed to be released under the proviso to Section 167 (2) on his application on October 28, 1985 The same condition was imposed that the sureties should be from Araria. He furnished | necessary sureties on October 29, 1985, but could not be released as he was under detention under the National Security Act. While so Gauri Shankar Jha who was a surety for all the five accused filed a petition and personally appeared in court praying that he may be discharged from surety ship as he did not want to continue to be a surety of the accused person. On December 5, 1985 the learned Magistrate made an order discharging the surety and issuing formal warrants of arrest u/s 444(2) of the Code of Criminal Procedure. It was a that stage that the order of detention against Simranjit Singh Mann was quashed by the High Court of Punjab and Haryana on December 9, 1985. The charge sheet in the court of the Judicial Magistrate First Class Arria was filed on December 14, 1985.

The learned Magistrate took cognizance of the case u/s 121A, 123, 124A, 153A, 165A and 120B Indian Penal Code on December 18, 1985. On the same day he also made an order that Simranjit Singh Mann should be kept in the Central Jail at Bhagalpur in the interest of security. On December 19, 1985, the Investigating Officers filed a pe'i ion requesting expeditious trial of the case as it was one of special importance. On December 20, 1985, fresh bail bonds were filed on behalf of the accused Raghubir Singh, Jagpal Singh, Kamikar Singh and Charan Singh. However, the bail bonds were rejected as the surety Kirtyanan Mishra could not name either the accused person or their fathers. On January 2 1980 all the accused persons were produced from custody before the Magistrate who further remanded them to custody till January 13, 1986. The learned Magistrate took up for hearing a petition which had been previously filed on b half of the accused persons requesting that Kirtyanand M shra maybe accepted as a surety as he had once previously been accepted as surety. It was prayed that the order dated December 20, 1985 might be recalled. The petition was rejected on the ground that the earlier order could not be reviewed. Later, on the same day, two sureties, Mir Majid and Kirtyanand Mishra filed petitions requesting that they should be discharged from suretyship as they did not want to continue as sureties for the accused persons. On January 7, 1986 the Sessions Judge, Purnea transferred the case from the file of Shri R.B. Roy, Joint Magistrate First Class, Araria to the Court of Shri U.N. Madav, Joint Magistrate, First Class, Arira. On January 10 1986, the learned Magistrate made an order fixing January 11,1986 for the supply of' police papers and necessary orders. On January II, 1986 the five accused persons were produced before the Magistrate. A petition was filed on b half of the State to commit the case to the Court of session after delivering the police papers to the accused persons and thereafter to cancel the bail of the accused persons and remand them to custody. Another petition was filed on behalf of the accused to transfer (he case to the Special Judge, Purnea The accused persons also filed a petition to adjourn the case. The Magistrate requested the accused to receive the documents furnished under s 207 criminal Penal Code but the accused refused to receive the same claiming that their petition should be disposed of first so that if necessary they may go to the higher court in revision. The Public Prosecutor objected to the petition of the accused on the ground that the accused persons were merely trying to delay the disposal of the commitment proceedings. The advocate for the accused persons appears to have made a submission that case was triable by the court of Special Judge and therefore it should be transferred to him The learned Magistrate held that cognizance had already been taken of the case by his court and the order taking cognizance could not be recalled. The question whether the case should be transferred to the court of Special Judge could be considered at the stage when the question whether there was a prima facie case was to be considered. The learned Magistrate then fixed January 18, 1986 as the date for furnishing copies of documents to the accused persons.

On January 16, 1986, the learned Magistrate rejected an application by the accused other than Simranjit Singh for acceptance of cash deposit or in the alternative sureties from outside Araria town. The learned Magistrate held that he had no power to review his earlier order. They then moved to the High Court for flail but that application was also rejected. On January 18, 1986, the learned Magistrate purported to transfer the record of the case to the Special Judge (Vigilance), North Bihar Patna and directed the accused to be produced before the special Judge on January 31, 1986. On January 31, 1986 Simranjit Singh Mann offered cash security and asked for bail, but the learned Judge rejected the application on February 7, 1986 on the ground that the High Court had already rejected the application of the other four accused. Simranjit Singh Mann has filed SLP No. 577 of 1986 directly in this Court against the order of the Special, Judge. On the same day (February 17, 1986), Simranjit Singh Mann also filed Writ Petition No, 137 of 1986 in this Court to quash the proceedings before the Special Judge. The other four accused filed SLP No. 630 of 1986 against the order of the High Court of Patna rejecting their application for bail and Writ Petition No. 136 of [1986 to quash the proceedings before the Special Judge. When these petitions/came up for admission on March 6, 1986 Mr. Mulla took notice on behalf of the State of Bihar and the matters are now before us for final disposal.

On February 17, 1986, the accused filed a petition / praying for the supply of copies of First Information Report, charge sheet and statements of witnesses. On April 7, 1986 all the necessary papers were supplied to the accused. On April 15, 1986, further investigation was taken up by the police and a supplementary chargesheet was laid on April 26, 1986. On May, 14, 1986, notification was issued by the State Governments under s 6 of the Criminal, Law Amendment Act appointing Shri V. P. Verma. as Special Judge to try cases from the Purnea Division at Bhagalpur. On May 20, 1986, the special Judge (Vigilance), Patna transferred the records to the special Judge Bhagalpur and directed the papers to be put up before the special Judge, Bhagalpur on June 5, 1986. Thereafter the case was finally adjourned to August 8, 1986 for arguments on the question of the charges to be framed and on the question of the jurisdiction. At that s'age the case took a very curious turn. The Special Public Prosecutor, purporting to act on behalf of the State, filed a petition stating that there was sufficient material for framing a charge under s 165A against Kamikar Singh and under 165A read with Section 34 against the remaining four accused, that there was also evidence justifying the framing of a charge under sees. 124, 153A and 505 of Indian Penal Code against Simranjit Singh Mann and under sees. 121A, 124A, 153A, and 505 read with Section 120B against the remaining four accused, that the offences u/s 165A and Section 165A read with Section 34 were not committed in the course of the same transaction as the offences u/s 124A etc. and therefore it was necessary that the offences under sees 165A and 165A read with Section 34 should be tried separately from the offences under sees. 124A etc. Another petition was filed on behalf of the accused more or less to the same effect and contending that the joint trial was not permissible. The learned Special Judge upheld that submission and held that the offences were not committed in the course of the same transaction and therefore the trial for the offences u/s 165A and Section 165A read with Section 34 should be separated from the other offences. The learned judge further held that he was not competent to try the accused for the offences u/s 121, 124A etc. as the case had not been committed to the court of Session by the Magistrate of Araria. In regard to those offences the learned Special Judge directed the record to be sent back to the District and Sessions Judge, Purnea for proceeding further in accordance with law.

Alleging that the Special Public Prosecutor had never been instructed to file a petition before the special Judge suggesting that the offences under sees 165 and 165A read with Section 34 and the remaining offences u/s 121A, 124A etc. were not committed in the course of the same transaction and that they should be tried separately, the State of Bihar filed a writ petition in the High Court of Patna and obtained a stay of further proceedings before the Special Judge The question of the link between the offences under sees. 165A and 165A read with Section 34 and the offences under sees. 121A, 124A etc. and the question of the jurisdiction of the Special Judge to try the offences under sees. 121A, 124A etc. were also raised before us but we refrain from expressing any opinion on these question as these question are to be considered by the High Court in the Revision Petition before it.

In the two writ petitions filed by the accused persons, Shri Ram Jethmalani made a forceful and passionate plea that the fundamental right of his clients under Article 21 of the Constitution has been frustrated by the tactics of the State of Bihar whose only object was to somehow keep the Petitioners in prison. He submitted that the case of bribery rested on what took place on the night of 29/30 November, 1984 and that investigation into that part of the case was completed in the course of a few dav. The offences of waging war etc. rested primarily on the letters said to have been written by Simranjit Singh Mann to the President of India and Ors. and investigation into these offences could not possibly take very long as all that was necessary was to examine the recipients of the letters. Yet the chargesheet was filed only in December, 1985 and even thereafter various tactics were adopted by the prosecution to prevent the trial of the case. According to Shri Jethmalani, the prosecution being fully aware that there was no merit in the allegations was merely trying to prolong the case as long as possible to harass the accused and to keep them in prison. He submitted that there was no material whatsoever to substantiate the offences of waging war etc and that the proceedings deserved to be quashed on that ground also. He argued that if the offences of waging war etc. rested on the letters written by Simranjith Singh Mann to the President of India and the Chief Secretary, as indeed they were, then the prosecution could have been launched as soon as the letter were received. There was no need to launch the prosecution now and link it with the offence of bribery where the letters had been published in the daily press long ago. It was also submitted the proceedings before the Special Judgi, Purnea were without jurisdiction both for the reason that he was not competent to try the offences unders 121A Section 124\ etc and also for the reason that h.- coma to be seized of the case at the instance of the Executive Government, who had no authority to transfer the case from the court of the Special Judge, Patna to the court of the Special Judge, Purnea Shri Jnhmalani submitted that the very principle of rule of law would b; defeated if the Executive Government were to be permitted to have cases decided by judges of their choice.

In the Special leave petitions. Shri Jethmalani submitted that the High Court and the Special Judge were wrong in not permitting the accused to offer fresh sureties or cash security. Fb submitted that the High Court and Special Judge were wrong in holding that the order of the Magistrate directing them to be released on bail u/s 167 (2) had come to an end by the passage of time, particularly after cognizance had been taken of the case.

9 The constitutional position is now well-settled that the right to a speedy trial is one of the dimensions of the fundamental right to life and liberty guaranteed by Article of the Constitution: Vide Hussatnara Khatoon (/) v. State of Bihar 1979 (5) SCR 169 (per Bhagwati and Koshal, JJ; Kadra Pahadiya v. State of Bihar, AIR 1981 SC 939 (per Bhagwati and Sen, JJ). Kadra Pchdiya (II) v. State of Bihar AIR 1982 SC 1167 (per Bhagwati and Eradi, JJ) and State of Maharashtra Vs. Champalal Punjaji Shah, (per Chinnappa Reddy, Sen and Baharul Islam, JJ) In foreign jurisdiction also, where the right to a fair trial within a reasonable time is a constitutionally protected right, the infringement of that right has been held in appropriate cases sufficient to quash a conviction or to stop further proceeding: Strunk v. United States 37 Law Ed. 2d and Barkar v. Wings 407 US 514 cases decided by the United States Supreme Court and Bell v. Director of Public Prosecutors, Jamaica 1985 (II) All ER 585 a case from Jamaica decided by the Privy Council. Several questions arise for consideration Was there delay? How long was the delay? Was the delay inevitable having regard to the nature of the case, the sparse availability of legal services and other relevant circumstances? Was the delay unreasonable? Was any part of the delay caused by the will fullness or the negligence of the prosecuting agency? Was any part of the delay caused by the tactics of the defence? Was the delay due to causes beyond the control of the prosecuting and defending agencies? Did the accused have the ability and the opportunity to assert his right to a speedy trial? Was there a likelihood of the accused being prejudiced in his defence? Irrespective of any likelihood of prejudice in the conduct of his defence, was the very length of the delay sufficiently prejudicial to the accused Some of these factors have been identified in Barker v. Wings (supra). A host of other question may arise which we may not be able to readily visualise just now. The question whether the right to a speedy trial which forms part of the fundamental right to life and. liberty guranteed by Article 21 has been infringed is ultimately a question of fairness in the administration of criminal justice even as 'acting fairly is of the essence of the principles of natural justice (In re H K. 1967 (() All ER 226) and a 'fair and reasonable procedure is what is contemplated by the expression 'procedure established by law in Article 21 Maneka Gandhi.

What do we have here? Five persons were seen in a jeep going towards the Indo-Nepal border, obviously in anattempt to cross the border. The border patrol thought that their movements were suspicious. Their answers to questions regarding their names and percentage were not satisfactory. One of them was identified as a police officer, who had been dismissed from service and who was wanted in connection with an order of detention under the National Security Act. In the light of contemporary history and in the light of the documents found in the possession of the accused [to the contents of one which we will presently refer], the police party suspected that they were crossing the border and going to Nepal in the course of a conspiracy to commit the offences of waging war, etc. The suspicion must have been strange the need by the offer of a bribe to be allowed to cross the border. The Police officer whom they apprehended, though apparently a Punjabi, had previously served in the State of Maharashtra while the others were from Calcutta. That several persons from different part of the country with no apparent connection with each other except that they appeared to belong to the same Community were together trying to cross the country's frontier, apparently made the police suspect, in the context of the political situation in the country, that they belonged to some group of persons of that community who were campaigning against the Government. Call it what you will be agitating or waging war, a suspicion which must have been further influenced by the letters found in their possession. It may be that these circumstances may lead to no more than suspicion but the suspicion was enough to justify an investigation by the Police.

We may digress here and consider a submission of Mr. Jethmalani that the letter addressed to the President showed that Simranjit Singh Mann wanted to devote himself to the rehabilitation of those who had suffered during the army action and the letter could never possibly be evidence of a conspiracy to wage war against the Government. It is true that in this long letter, there is a sentence, "In future, I will devote myself to the rehabilitation of those who have suffered during the army action". It is sufficient for us to mention that here is in 'h; letter enough incendiary material to ignite the combustible. We do not want to refer to the various other statements made in the letter. It is possible that the effect of some of those statements on the minds and actions of the susceptible could be disastrous. Simranjit Singh Mann, as a highly educated person and as a highly placed officer, was bound to emerge, on his dismissal from service, as a hero and martyr in the eyes of a certain section of the people. His statements would be accepted by them as gospel truths and pronouncements of the oracle on the basis of which they should act. If the letter remained addressed to the President and not publicised, it would cause little or no harm. But the letter though addressed to the President was clearly meant to be what is called an 'open letter* to be given wide publicity. Indeed its full text had been published in the daily press and the accused themselves had such a copy in their possession when they were stopped and searched. We do not know whether any of the accused was responsible for the publicity and whether it was in pursuance of the conspiracy. It may be that Simranjit Singh Mann meant no harm and that the contents of the letter were no mare than the vehement outpourings of a bitter, and distressed but honest mind in the zealot's jargen. On the other hand it is possible that the letter was designed to become or become an instrument of faith and used as such. All these are matters for evidence at the trial.

Reverting to what we were saying earlier, if the police officers had some justification for suspecting a conspiracy, they would be well justified in suspecting remifications of the conspiracy elsewhere in the country necessitating investigation into the conspiracy in Punjab, Delhi, Maharashtra, Calcutta and other parts of the country. If the Investigating agency suspected a conspiracy to wage war, it was its bounden duty to search for evidence wherever it could be found and not content itself by reading the letters and examining the recipients of the letters. It is not again correct to say that the case of waging war is founded entirely on the letters addressed to the President of India, etc. and that all that was necessary for the investigating agency to do was to examine the recipients of the letters The letters. are only items of evidence and not the totality of the evidence.

From the affidaivit filed on behalf of the State of Bihar and from the records produced before us, we find that the investigating agency conducted enquiries not only at Jogbani (Purnea), but also at Delhi, Calcutta and Bombay and in Punjab, Maharashtra and Nepal. It is onething to analyse and arrange the facts and plan an orderly course of action when all the facts are known, it is quite another thing to do when the facts are to be discovered or unearthed; particularly in case of suspected conspiracies bristling with all manner of complexities and complications 1 including those of a sensitive, political nature, where the investigating agency has to tread warily and with circumspection. The investigating agency cannot, therefore, is blamed for the slow progress that they made in investigating a case of this nature. It is true that there were what appeared to be lull. in investigation for failry long spells but we are unable to see anything sinister in the lulls. We have to remember that investigation of this case was not the only task of the investigating agency. There must have been other cases and tasks. In our country, the police are not only in charge of the investigation into crimes, but they are also in charge of Law and Order. We have to take into account the extraordinary law and order situation obtaining in various parts of the country necessitating the placing of a great additional burden on the police. We are satisfied that such delay as there was in the investigation of the case was not wanton and that it was the outcome of the nature of the case and the general situation prevailing in the country. We may also note in passing that the accused in the present case do not belong to the category of persons who are not well able to take care of themselves. They are peisons who are capable of asserting their rights whenever and wherever necessary and who did in fact assert their rights as and when necessary, as it is evident from the number of petitions filed before the Magistrate, and the special judge, from time to time. We do not suggest that the ability of the accused to assert their rights should penalise them and still the voice of protest against the delay, But, as pointed out by powell, J. in Barker v. Wingo (supra) and by Lord Tempelman in Bell v. DPP of Jamaica [supra] one of the factors to be considered in determining whether an accused person has been deprived of his right is the responsibility of the accused for asserting his rights. It was said:

whether, and how, a Defendant asserts his right is closely related to the other factors we have mentioned The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which he experience. The more serious the deprivation, the more likely a Defendant is to complaints.

Until the filing of the present writ petitions we find that there was no serious protest by the accused about any delay. After (he charges-sheet was filed, we notice that at least on two occasions the prosecuting agency expressed an anxiety to have the case disposed of as expeditiously as possible. We find from the order-sheet of the learned special Judge that on December 19, 1985 the Public Prosecutor filed a petition before him requesting expeditious trial of the case as it was a case of a special importance. From the order-sheet we find that on January 9,1986, another petition was filed by the Public Prosecutor again requesting that an early date may be fixed for the speedy disposal of the case. Having regard to all the circumstances of the case, we do not think that the delay in the investigation and in the trial of the case is !so unfair as to warrant our quashing the proceedings on the ground of in fringement of the right of the accused to a speedy trial, a part of their fundamental right under Article 21 of the Constitution We think that a direction by us that the trial should start soon and proceed from day to day is all that is called for in the presente as.

It was strenuously contended by Shri Jethmalani that there was no material whatsoever to warrant the framing of charges for any of the offences mentioned in the charge-sheet other than Section 165A. We desire to express no opinion on this question. It is not a matter to be investigated by us in a petition under Article 32 of the Constitution. We wish to emphasis? that this Court cannot convert itself into the court of a Magistrate or a Special Judge to consider whether there is evidence or not justifying the framing of charges.

Two other questions, one relating to the jurisdiction of the Special Judge to try the accused for the offences under sees. 121, 121A etc, and the other the question of the link between the offences under sees. 165A and 165A read with Section 34 On the one hand and the offences under sees. 121 and 121A etc. on the other are questions which are awaiting the decision of the High Court of Patna and we leave those questions to be decided by the High Court.

Another question which was raised before us was that the Special Judge, Purnea was chosen by the Executive Government to try the present case. The submission was that it was destructive of the very principle of Rule of law and Equality before the Law if the Prosecutor is to be permitted to have the Judge of his choice to try the case. Nothing as drastic as that suggested by Mr. Jethmalani has happend. All that has in fact happened is that Special Judge's Court was created for Purnea Division under sec 6 of the Criminal Law Amendment act and Shri Bindeshwari Prasad Verm?, Additinoal District Judge, West Champaran, who was under orders of tians-fers as Additional District Judge, Bhagalpur was designated as the Special Judge. The case, Jogbani P. S No. 110/84 was mentioned within brackets as that was apparently the only case awating trial in Purnea Division under the Criminal Law Amendment Act. A Special Judge's court was created for Purnea Division as it was thought that it would be more convenient for the accused and also in the intersts of security if the case was tried at Bhagalpur where the accused were imprisoned rather than to have the trial of the case at Patna to which place the accused would have to be taken from Bhagalpur for every hearing. The accused had to be imprisoned at Bhagalpur. as already mentioned by us, in the interests of security. We are unable to see any evil design in the creation of a Special Judge's court for Purnea Division at Bhagalpur under the criminal Law Amendment act and the designation of a Judge to preside over that court.

Shri Jethmalani urged that in the case of the accused persons other than Simranjit Singh Mann, there was nothing whatever to connect them with the offences under sees. 121-A, 124-A, etc. It was said that they were not even the authors of any of the letters which were found in the course of the search. We do not want to express any opinion except to say that authorship of seditious material a low is not the gist of any of the offences Distribution or circulation of seditious material may also be sufficient on the facts and circumstances of a case. To act as a courier is some times enough in a case of conspiracy. It is also not necessary that a person should be a participant in a conspiracy from start to finish. Conspirators may appear and disappear from stage to stage in the course of a conspiracy. We wish to say no more on the submission of the Learned Counsel. Whether sucb evidence as may now be available in the record to justify the framing of charges is a matter for the trial court and not for us. We refrain from expressing any opinion.

Having regard to the subsequent events that have taken place, we think that the only appropriate direction that we can give is to request the Patna High Court to dispose of the criminal revision petition before it as expeditiously as possible preferably within three or four weeks. Whatever be the out come of the criminal revision petition, the High Court should also direct the Special Judge or other Judge who may have to try the case, or the one or the other of the cases as the case may be, to try the cases expeditiously, setting a near date for the trial of the case or cases and to proceed with the trial from day to day.

We then come to the two special leave petitions filed by the ' accused persons. We may recapitulate that the five accused persons were directed to be released on bail under the proviso (a) to Section 167 (2) for the default of the prosecution in not completing the investigation within 60 days. It may be remembered that there was no provision corresponding to the proviso to Section 167 (2) in the old Code of Criminal Procedure. The proviso was introduced for the first time in the new Code of 1973 The reason for the introduction of the proviso was stated in the Statement of Objects and Reasons as follows:

At present Section 167 enables the Magistrate to authorise detention of an accused in custody for a term not exceeding 15 days a% the whole. There is a complaint that this provision is honoured more in the breach than in the observance and that the police investigation takes a much longer period in practice. The practice of doubtful legality has grown whereby the police file a 'preliminary' or incomplete charge-sheet and move the court for a remand under s 344 which is not intended to apply to the stage of investigation. While in some cases, the delay in the investigation may be due to the fault of the police, it cannot be denied that there may be genuine cases where it may not be practicable to complete investigation in 15 days. The Commission recommended that the period should be extended to 60 days, but if this is done, 60 days would become the rule and there is no gurantee that the illegal practice referred to above would not continue, it is considered that the most satisfactory solution to the problem would be to extend the period of detention beyond 15 days whenever he is satisfied that adequate grounds exists for granting such detention." (s. 344 of the Old Code Corresponded to Section 309 of the present Code.)

The effect of the new proviso is to entitle an accused person to b^ released on bail if the investigating agency fails to complete the investigation within 60 days. A person released on bail under the proviso to Section 167 {2) for the default of the investigating agency is statutorily deemed to be released under the provisions of Chapter 33 of the Code for the purposes of that chapter. That is provided by the proviso to s 167 (2) itself. This means, first, the provisions relating to bonds and sureties are attracted. Section 441 provides for the execution of bonds, with or without sureties, by persons ordered to be released on bail. One of the provisions relating to bonds s Section 445 which enable to court to accept the deposit of a sum of money in lieu of execution of a bond by the person required to execute it with or without sureties if the bond is executed (or the deposit of cash is accepted), the court admitting an accused person to bail is required by Section 442 (1) to issue an order of release to the officer in charge of the jail in which such accused person is incarcerated. Sections 441 and 442, to borrow the language of the Code of Civil Procedure, are in the nature of provisions for the execution of orders for the release on bail of accused persons. What is of importance is that there is no limit of time within which is bond may be executed after the order for release on bail is made. Very often accused persons find it difficult to furnish bail soon after the making of an order for release on bail. This frequently happens because of the poverty of the accused person. It also happens frequently that for various reasons the sureties produced on behalf of accused persons may not be acceptable to the court and fresh sureties will have to be produced in such an event. The accused persons are not to be deprived of the benefit of the order for release on bail in their favour because of their inability to furnish bail straight away. Orders for release on bail are effective untill an order is made u/s 437 (5) or Section 439 (2). These two provisions enable the Magistrate who has released an accused on bail or the court of Session or the High Court to direct the arrest of the person released on bail and to commit him to custody. The two provisions deal with what is known in ordinary parlance as cancellation of bail. Since release on bail under the proviso to Section 167(2) is deemed to be the release on bail under the provisions of Chapter XXXIII, an order for release under the proviso to Section 167 (2) is also subject to the provisions of Section 437 (5) and 439 (2) and may be extinguished by an order under either of these provisions. It may happen that a person who has been accepted as a surety may later desire not to continue as a surety. Section 444 enables such a person, at any time, to apply to a Magistrate to discharge a bond either wholly or so far as it relates to the surety. On such an application being made, the Magistrate is required to issue a warrant of arrest directing the person released on bail to be brought before him. On the appearance of such person or on his voluntary surrender, the Magistrate shall direct the bond to be discharged either wholly or so far as it relates to the surety, and shall call upon such person to find other sufficient surety and. if he fails to do so, he may commit him to jail (sec 444). On the discharge of the bond, the responsibility of the surety ceases and the accused person is put back in the position where he was immediately before the execution of the bond. The order for release on bail is not extinguished and is not to be defeated by the discharge of the surety and the inability of the accused to straight away produce a fresh surety. The accused person may yet take advantage of the order for release on bail by producing a fresh, acceptable surety. The argument of the Learned Counsel for the State of Bihar was that the order for release on bail stood extinguished on the remand of the accused to custody u/s 309 (2) of the Code of Criminal Procedure. There is no substance whatever in this submission. Section 309(2) merely enables the Court to 'remand the accused if in custody. It does not empower the Court to remand the accused if he is on bail. It does not enable the Court to 'cancel bail as it were. That can only be done u/s 437(5) and Section 439(2). When an accused person is granted bail, whether under the proviso to Section 167(2) or under the provisions of Chapter XXXIII the only way the bail may be cancelled is to proceed u/s 437 (5) or Section 439 (2).

In Matabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida Vs. The State of Orissa, the Court explained the mandatory character of the requirement of the proviso to Section 167 (2) that an accused person is entitled to be released on bail if the investigation is not completed within sixty days. The Court said,

But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to an does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may sill be proceeding. In serious offences of criminal conspiracy-murders, dacoities, roberies by inter-state gangs or the like, it is not possible for the police in the circumstances as they do exist in the various parts of our country, to complete the investigation within the period of 60 days. Yet the intention of the Legislature seems to be grant no discretion to the court and to make it obligatory for it to release the accused on bail of course, it has been provided in proviso (a) that the accused released on bail u/s 167 will be deemed to be so released under the provisions of Chapter XXX fll and for the purpose of that Chapter. That may empower the court releasing him on bail, if it considers necessary so to do to direct that such person be arrested and committed to custody as provided in Sub-section (5) of Section 437 occurring in Chapter XXXIII. It is also clear that after the taking of the cognizance the power of remand is to be exercised u/s 309 of the New Code. But if it is not possible to complete, the investigation within a period of 60 days then even in serious and ghasty types of crimes the accused will be entitled to be released on bail. Such a law may be a ''paradise for the criminals,"' but surely it would not be so, as sometimes it is supposed to be because of the courts. It would be so under the Comand of the Legislature.

In Bashir and Others Vs. State of Haryana, the question arose whether a person who has been released under the proviso to Section 167 [2] could later be committed to custody merely because a challan was subsequently filed. The court held that he could not be so commit d to custody. But, the bail could be cancelled under s 437 [5] if the court came to the conclusion that there were sufficient grounds, after the filing of the challan to believe that the accused had committed a non-bailable offence and that it was necessary to arrest him and commit him to custody. The Court said,

Sub-section [2] of Section 167 and proviso [a] thereto make it clear that the Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days. On the expiry of sixty days the accused person shall be released on bail if he is prepared to and does furnish bail. So far there is no controversy. The question arises as to what is the position of the person so released when a challan is subsequently filed by the Police-

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Sub-section [5] to Section 437 is important. It provides that any court which has released a person on bail under subjection [)\ of Sub-section [2], may if it considers it necessary so to do, direct that such person be arrested and commit him to custody. As u/s 167 [2] a person who has been released on the ground that he had been in custody for a period of over sixty days is deemed to be released under the provisions of Chapter XXXIII, his release should be considered as one u/s 437 [I] or [2]. Section 437 [5] empowers the court to direct that the person so released may be arrested if it considers it necessary to do so. The power of the court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail u/s 437 [1] or [2] and these provisions are applicable to a person who has been released u/s 167 [2]. u/s 437 [2] wren a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he has committed a non-bailabla offence may be committed to custody by court which released him on bail if it is satisfied that there are sufficient grounds for so doing after/nquiry is complied. As the provisions of Section 437 [I], [2], and 151 are applicable to person who has been released u/s 167 (2) the mere fact that subsequent to his release a challan has been filed, is not sufficient to commit him to custody. In this case the bail was cancelled and the Appellants were ordered to be arrested and commited lo custody on the ground that subsequently a charge sheet had been filed and that before the Appellants were directed to be released u/s 167 [2) their bail petitions were dismissed on merits by the Sessions Court and the High Court. The fact that before an order was passed u/s 167 [2] the bail petitions of the accused were dismissed on merits is not relevant for the purpose of taking action u/s 437 [5]. Neither is it a valid ground that subsequent to release of the Appellant a challan was filed by the police. The Court b fore directing the arrest of the accused and committing them to custody should consider it necessary to do so u/s 437 [5], This may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that the accused had committed a non-bailable offence and that it is necessary that he should be arrested and committed to custody. It may also ord;r arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. But it is necessary that the Court should have proceeded on the basis that he has been deemed to have been released u/s 437 (1) and (2).

In Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another, a case arising under the old code, the court considered the grounds on which bail might be cancelled, it was said,

There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the (inherent) powers of the High Courts are sought to be invoked by the prosecution in cases where it is alleged that accused persons, cither by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, if an accused person who is released on bail jumps bail and attempts to run to a foreign country to escape the trial, that again would be a case where the exercises of the (inherent) power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail arid by absconding to another country. In other words, if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person, in such a case the (inherent) power of the High Court can be -legitimately invoked. In regard to non-bailable offences there is no need to invoke such power because Section 497 (5) specifically deals with such cases.

The result of our discussion and the caselaw is this: An order for release on bail made under the proviso to Section 167 (2) is not defeated by lapse of time, the filing of the charge sheet or by remand to custody u/s 309 (2). The order for release on bail may however be cancelled u/s 437 (5) or Section 439 (2). Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance/etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging in similar or other unlawful Acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days, after the defect is cured by the filing of a charge sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, or to would expect very strong ground indeed.

In the present case, the High Court and following the High Court, the Special Judge have held that the order for release on bail came to an and with the passage of time on the filing of the charge sheet- That we have explained is not a correct view. The question now is what is the appropriate order to make? The order for release on bail was not an order on merits but was what one may call an order on default, an order that could bj rectified for special reasons after the defect was cured. The order was made long ago but for one reason or the other, the accused failed to take advantage of the order for several months. Probably for that reason the prosecuting agency did not move in the matter and seems to have proceeded on the assumption that the order had lapsed with the filing of the charge sheet. The question is should we now sent the matter down to the High Court to give an opportunity to the prosecution to move that court for cancellation of bail? Having regard to the entirely of the circumstances, the long lapse of time since the original order, for bail was made the consequent change in circumstances and situation and the directions that we have now given for the expeditious disposal of the case, we do not think that we will be justified in exercising our discretion to interfere under Article 136 of the Constitution in those matters at this stage. The special leave petitions are. therefore, dismissed. Nothing that we have said is to be construed as an expression of opinion on the merits of the case.