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Judgment
B. Akbar Basha Khadiri, J.—The instant Criminal Revision is against the order passed in C.M.P. No. 2719 of 2000 by the learned Judicial
Magistrate No. III, Erode, cancelling the bail granted to accused Nos. 1 and 3 in Crime No. 257 of 2000 of the Respondent.
This Criminal Revision has arisen in this way:
The revision Petitioners stand charged as accused Nos. 1 and 3 in Crime No. 257 of 2000 of the Chithode Police Station, i.e. the Respondent
herein for the offence under Sections 332, 307 I.P.C. r/w Sections 34, 324, 322 I.P.C. and Section 332 I.P.C. r/w 34 I.P.C. The case against the
Petitioners herein are that they attempted to murder certain Police Officers. They were arrested and remanded to custody on 18.05.2000. Since
no charge-sheet was filed within ninety days, bail was granted to them on 23.08.2000. On 24.08.2000, the Respondent herein filed an application
for cancellation of bail. On 30.08.2000, the learned Judicial Magistrate passed orders cancelling the bail granted on the ground that the Petitioners
are notorious persons, who are involved in several cases and releasing them on bail would enable them to again indulge in committing grave
offences. As against the order passed by the learned Judicial Magistrate, the Petitioner herein have come forward with the instant Criminal
Revision.
Heard both sides, It is not in dispute that the Petitioners are alleged to be involved in Karungalpalayam Police Station Crime No. 338 of 2000
u/s 394 I.P.C. and in Erode North Police Station Crime No. 449 of 2000 u/s 464(A) and 511 I.P.C. The first Petitioner is said to be involved in
Erode Taluk Police Station Crime No. 121 of 2000 u/s 192 I.P.C. and the second Petitioner herein is said to be involved in Pallipalavam Police
Station Crime No. 7 of 1998 u/s 307 I.P.C. and also Melasi Police Station Crime No. 405 of 1998 under Sections 147, 148, 341, 302 I.P.C. It
is also not in dispute that the Petitioners were granted bail as per the benevolent provision of Section 167(2) Code of Criminal Procedure, since
final report was not filed within statutory time.
The question is whether the learned judicial Magistrate can cancel the bail granted exercising powers u/s 437(5) Code of Criminal Procedure.
Section 167(2) Code of Criminal Procedure with the proviso would recite as under:
Procedure when investigation cannot be completed in twenty-four hours
(1)....
(2) The Magistrate to whom an accused person is forwarded under this section may. whether he has or has not jurisdiction to try the case from
time to time, authorise the detention of the accused in such custody to such Magistrate thinks fit, for a term not exceeding fifteen days in the whole;
and if he has no jurisdiction to try the case or commit for trial, and considers further detention unnecessary, he may order the accused to be
forwarded to a Magistrate having such jurisdiction:
Provided that:
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen
days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody
under this paragraph for a total period exceeding:
(i) Ninety days, where the investigation relates to an offence punishable with death, imprisonment for life, imprisonment for a term of not less than
ten years:
(ii) sixty days, where the investigation relates to any other offence, and on the expiry of the said period of ninety days, or sixty days, as the case
may be, the accused person shall be released on bail if he is prepared and does furnish bail, and every person released on bail under this Sub-
section shall be deemed to be released under the provisions of Chapter XXXIII for the purpose of that Chapter:
(b) no Magistrate shall, authorize detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorize detention in the custody of the
police.
Explanation 1. For the avoidance of doubts, it is hereby declared that notwithstanding the expiry of the period specified in paragraph (a), the
accused shall be detained in custody so long as he does not furnish bail
Explanation 2. It any question arises where an accused person was produced before the Magistrate as required under paragraph (b), the
production of the accused person may be proved by his signature on the order authorising detention.
Section 437(5) Code of Criminal Procedure, which recites as under:
(5) Any Court which has released a person on bail under Sub-section (1) Sub-section (2), may, if it considers it necessary so to do, direct that
such person be arrested and commit him to custody.
In Aslant Bapalal Desai v. State of Maharashtra 1992 (3) Crimes 597, referring to earlier decisions rendered in Bashir and Others Vs. State of
Haryana, , Raghubir Singh and Others Vs. State of Bihar, , Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New
Delhi, and State (Delhi Administration) Vs. Sanjay Gandhi, , A.M. Ahmadi, J., as His Lordship then was, and K. Ramaswami, J. have pointed out
that once an accused is released by the thrust of proviso to Section 167(2) Code of Criminal Procedure, mere fact that subsequent to the release
filing of the charge sheet, is not sufficient to cancel the bail.
In Raghubir Singh and Others Vs. State of Bihar, . Their Lordships of the Supreme Court have pointed out that grant of bail can be cancelled
for special reasons u/s 437(5) or Section 437(2) Code of Criminal Procedure.
In Rajnikant Jivanlal and Another Vs. Intelligence Officer, Narcotic Control Bureau, New Delhi, , the Supreme Court have pointed out that,
after grant of bail, the accused must be directed to furnish sureties and till furnishing of sureties he cannot claim any special right to remain on bail.
Their Lordships of the Apex Court has differed with this view in Aslant Babalal''s case cited supra.
In State (Delhi Administration) Vs. Sanjay Gandhi, , it has been held that rejection of bail when bail is applied for is one thing and cancellation of
bail already granted is quite another. Their Lordships of the Supreme Court have also held that it is easier to reject a bail application in a non-
bailable case than to cancel a bail already granted in such a case and that is because cancellation of bail interferes with the liberty already secured
by the accused either on the exercise of discretion by the Court or by the thrust of law.
In Aslant Babalal Desai''s case reported in 1992 (3) Crimes 597, Their Lordships have clearly reiterated that once when bail is granted under
Sub-section 2 of Section 167 Code of Criminal Procedure for failure to complete the investigation within the prescribed time, it cannot be
cancelled on the mere ground that subsequently the charge-sheet has been produced, which discloses that the accused persons have committed a
serious crime punishable with death or imprisonment for life Referring to earlier decision reported in Bhagirathsinh Judeja Vs. State of Gujarat, .
Their Lordships have pointed out as under:
...Even where a prima facie case is established the approach of the Court in the matter of bail is not that the accused should be detained by way of
punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his
favour by tampering with evidence. It is wrong to think that bail secured by virtue of the proviso (a) to Section 167 is an undeserved one. To so
think is to doubt the legislative wisdom in prescribing the outer limit for filing the charge-sheet and to ignore the legislative history....
Their Lordships have pointed out that bail granted u/s 167(2) is as good as, the bail granted under the regular provisions and cancellation of which
would attract the provision of Chapter XXXIII, i.e., Section 437(1) or 437(2). It was pointed out that under those provisions, bail can be
cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity; (ii) interferes with the course of investigation; (iii) attempts
to tamper with evidence or witnesses (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation; (v) there is
likelihood of his fleeing to another country; (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating
agency; (vii) attempts to place himself beyond the reach of his surety, etc. Their Lordships have clearly indicated that once bail is granted,
cancellation can be made under one of the grounds aforesaid, but not otherwise. In fact, Their Lordships have pointed out that in matters of grave
crimes, if unfortunately the investigating agency did not show urgency and did not complete the investigation within the maximum period allowed by
the proviso to Section 167(2) Code of Criminal Procedure the accused is entitled to seek for bail. In that case, His Lordship K. Ramaswamy, J.
has pointed out that if it is not possible to complete the investigation within the period of sixty days, even in serious and ghastly, types of crimes the
accused will be entitled to be released on bail and that such 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 command of the Legislature.
Coming to the facts of the instant case, the learned Judicial Magistrate granted bail to the Petitioners on 23.08.2000. But, the learned Judicial
Magistrate has cancelled the bail on 30.08.2000 on the ground that the Petitioners are notorious persons and if released on bail, they may engage
themselves in committing grave crimes. Of course, the Petitioners are involved in other crimes. It is not known whether they were released on those
cases or whether they are still kept confined as under trial prisoners in those cases. The Respondent herein had filed the petition for cancellation of
bail on an apprehension that if the Petitioners are released on bail, they may commit grave crimes. It may not be a ground for cancellation of bail.
The learned Government Advocate cited a decision rendered by my learned brother A. Ramamurthi, J. in Abdul Nasser Madani v. State of
Tamil Nadu 2000 M.L.J. (Criminal) 226 to show that even in cases where charge-sheet is not filed within the prescribed period, the accused
cannot be released on bail considering the grave nature of the crime committed by him. That was a case relating to bomb-blast in Coimbatore,
resulting in death of more than 58 persons. My learned brother agreed that if a person is granted statutory bail u/s 167(2) Code of Criminal
Procedure, it shall be deemed to be an order passed under Chapter XXXIII of the Code, but laid stress on the terminology of Section 437(5)
Code of Criminal Procedure which reads as under:
Any Court which has released a person on bail under Sub-section (1) or Sub-section (2) may, if it considers it necessary so to do direct that such
persons be arrested and commit him to custody.
My learned brother has referred to an earlier decision B.S. Rawat, Asstt. Collector of Customs, Bombay Vs. Leidomann Heinrich and another, ,
wherein it was observed as under:
Moreover, the language used in Sub-section (2) of Section 439 of the Code of Criminal Procedure is very clear and explicit, When it uses the
expression any person who has been released on bail. It would mean that the accused is not only granted bail but has availaed of the same and is
relased from his jail custody. It is only then that this Court can direct a person to be arrested and committed to custody as provided in Section
439(2) of the Code of Criminal Procedure. In fact, no question of his rearrest or recommittal to custody can arise unless the accused is actually
released on bail granted to him continues to be in custody and no question of his arrest and committed to custody can therefore arise... The
application for cancellation of bail of the accused before his release on bail would thus be pre-mature.
My learned brother A. Ramamurthi, J. has referred to another decision reported in Dr. Bipin Shatilal Panchal v. State of Gujarat 1996 S.C.C.
(Crl) 200, wherein it has been observed as under:
If an accused person fails to exercise his right to be released on bail for the failure of the prosecution to file the charge sheet within the maximum
time allowed by law, he cannot contend that he had an indefeasible right to exercise it at any time notwithstanding the fact that in the meantime
allowed by law and is released on bail under such circumstances he cannot be rearrested on the mere filing of the charge sheet. The principle is
exactly applicable to the case on hand.
The learned Judge has also referred to the decision reported in Chittu Sahni v. State of Bihar 1995 (1) Crimes 381 where it has been held that the
bail granted to the accused u/s 167(2) Code of Criminal Procedure can be recalled after the filing of charge sheet and before accused could furnish
surety for his release. The learned Judge has also referred to the decision reported in Sankar alias Gowri Sankar and Ors. v. State 1991 L.W.
(Crl) 202, wherein it has been observed as under:
The command of the Legislature in proviso (a) to Section 167(2) of the new Code is that the accused person has got to be released on bail if he is
prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation is still proceeding.... An
order for release on bail under proviso (a) to Section 167(2) is an order on default. The accused is entitled to be released on bail on account of
default on the part of the prosecution to file charge sheet within the prescribed period if he is prepared to and does furnish bail. It is a legislative
command and not courts discretion.... The accused cannot claim any special right to remain on bail. In other words, the accused cannot claim flint
his right to remain on bail can under no circumstances, be defeated. If the investigation reveals that, (1) the accused has committed a serious
offence, and (ii) charge sheet is filed, the bail granted under proviso (a) to Section 167(2) could be cancelled. If the accused has not made
application for his release on bail, after expiry of the period prescribed by the proviso (a) to Section 167(c) and before filing of the charge sheet,
he has no right to claim his release on bail after filing of the charge sheet/final report. Solely on the ground that the charge sheet/final report was not
submitted within the prescribed period.
A harmonious reading of the Section would go to show that the right to seek bail accrues on the accused after the lapse of the statutory period
prescribed u/s 167(2) Code of Criminal Procedure that becomes indefeasible when he files an application for bail and obtains a bail order. The
only question is before he furnishes 4 surety, if a petition for cancellation is filed, whether the bail granted would become defeasible? Nowhere the
provisions of Code of Criminal Procedure lay down any time limit for the accused to execute the bail bond.
The first two decisions referred to by my learned Brother A. Ramamurthy, J. in Abdul Nasser Madani''s case reported in 2000 M.L.J. (Crl.)
226, it has been laid down that question of cancellation of bail would arise only if the person is released on bail, that is the accused is not only
granted bail, but has availed of the same and released from the jail custody, then only the Court can direct that the person be arrested and
committed to custody. It was also pointed out that if the accused person fails to exercise his right to release on bail, he cannot contend that he has
an indefeasible right to exercise at any time not-withstanding the fact in the meantime allowed by law and is released on bail under such
circumstances, he cannot be rearrested on the mere filing of the charge sheet. In the latter decision, it was held that bail granted to the accused u/s
167(2) Code of Criminal Procedure can be recalled after filing of the charge sheet and before the accused could furnish surety for his release. It
would thus appear that as long as the accused fails to furnish surety, his bail can be cancelled.
In Bijayaketan Mohanty Vs. State of Orissa, before bail bonds were executed and bail order was given effect to, and a petition to cancel the
bail order was filed. The learned Judicial Magistrate had found that prime facie case has been made out and declined to give effect to the bail order
and cancelled the bail order u/s 437(5) Code of Criminal Procedure. The accused was still in custody and the learned Magistrate though that it
was not necessary to rearrest him and commit him to custody and mere rejection of bail bond would be sufficient. In that case, a view was
expressed that once there is an order for release on bail whether on merit or under statutory mandate, the power to revoke the order as found in
Sub-section 5 to Section 437 Code of Criminal Procedure can be exercised only when the accused is on bail and not in custody.
It therefore follows that (i) the accused has a right to seek for bail within the time limit prescribed u/s 167(2) Code of Criminal Procedure; (ii)
once the time passes, that right becomes an indefeasible right; (iii) the right gets further crystallized when the accused files bail application; and (iv)
when the Magistrate passes an order for granting bail, the right becomes indefeasible.
One view expressed is that unless the accused offers surety also in pursuance or sequel to the order of granting bail passed by the Magistrate,
the right would not become enforceable. As per provision of Section 167(2) Code of Criminal Procedure, the accused shall be released on bail, if
he is prepared to and does furnish bail, unless he has furnished sureties, it cannot be said that he has fully enforced his right. The other view, is that
once bail order is granted, there is no limitation provided to offer sureties under the provisions of Chapter XXXIII Code of Criminal Procedure.
Once the release of the accused is ordered by the Magistrate u/s 167(2) Code of Criminal Procedure, there is completion of enforcement of the
right.
Regarding two views, I feel that the view which is beneficial to the accused has to be accepted. In that view of the matter, I hold that the
learned Judicial Magistrate No. III, Erode has no authority to cancel the bail when the accused was granted bail and only procedural aspect of
furnishing sureties has to be complied. Further cancellation of bail could be done only under any of the grounds mentioned u/s 437(5) Code of
Criminal Procedure and the factum whether such grounds have arisen has to be considered only after the release of the accused on bail. In that
view of the matter, I am inclined to allow the instant Criminal Revision.
In the result, the Criminal Revision is allowed. The order passed by the learned Judicial Magistrate No. III, Erode in C.M.P. No. 2719 of
2000 is set aside.