CHAPTER -III

LAW AS A PROCEDURE FOR CANCELLATION OF BAILS

AND FOR GRANTING OF BAILS UNDER SPECIAL ACTS

3.1 Cancellation of Bails:

Sub-Section(S) of Section 437, Criminal Procedure Code confers

discretion on any court which has released a person on bail under Sub­

section! 1) or Sub-section(2), to direct that such person be arrested and

commit him to custody, if it considers it necessary to do so. This sub­

section empowers a Magistrate to cancel the bail granted to a person but

that power is strictly limited to a case where the bail is granted by the

Magistrate himself. So, in a case being tried by a Magistrate if bail has

been granted by the High Court or the Court of Session the bail may be

cancelled by the High Court or the Court of Session, as the case may be.

The reason is that the Magistrate has no power to cancel the bail granted

by a Superior Court. Similarly, the committing Magistrate in a case

triable exclusively by the Court of Session does not have the power to

cancel the Ml granted by the High Court.1

Object of Section 437(5):

The object of Section 437(5), Criminal Procedure Code is to enable

the court on sufficient materials being placed before it to cancel the bail

1 Jarmail Singh vs. State of Haryana, 1976, Punj. LR 757.

71
granted or to direct that such person be arrested and committed to

custody. This sub-section contemplates a situation where a person

enlarged on bail has misused the freedom granted or has disobeyed the

conditions imposed or has imperiled the smooth course of investigation or

has done such acts, as, in the opinion of the court, are sufficient to cancel

the bail already given. To extend the principle contained in Section

437(5) for remanding the accused to police custody for the purpose of

securing recovery under section 27 of the Evidence Act, would not only

be doing violence to section 437(5) but would override the principles

r\

under which a citizen’s liberty is safeguarded.

It has been observed by the Supreme Court that rejection of bail

when bail is applied for is one tiling, cancellation of bail already granted

is quite another. It is easier to reject a bail application in a non-bailable

case than to cancel a bail granted in such a case. Cancellation of bail

necessarily involves the review of a decision already made and can, by

and large, be permitted only if, by reason of supervening circumstances, it

would be no longer conducive to a fever trial to allow the accused to

retain his freedom during the trial. The fact that prosecution witnesses

have turned hostile must be shown to bear a casual connection with the

subjective involvement therein of the respondent. Without such proof, a

bail once granted cannot be cancelled on the off chance or on the

2 T.N: Jayadeesh Devidas vs. State of Kerala Lt 642; 1980 Cr.LJ 906.

72
supposition that witness have been won over by the accused. Inconsistent

testimony on no more be a scribed by itself to the influence of the

accused than consistent testimony, by itself, can be a scribed to the

pressure of the prosecution. It is therefore necessary for the prosecution

to show some act or conduct on the part of the respondent for which a

reasonable inference may arise that the witnesses have gone back on this

statements as a result of an intervention by or on behalf of the

respondent.3

No application is required on behalf of any party for cancellation of

bail as it is the duty of the court to do so under sub-section(5) of Section

437 in proper circumstances. Thus, if the complainant brings the matter

to the notice of the court the latter can pass an order canceling the bail

under the said sub-section.4

When1 once an application for cancellation of bail has been

dismissed, then subsequent applications for cancellation of bail, without

alleging any fresh ground, is not maintainable.5

In a case started on private complaint, the complainant may file an

application for cancellation of bail bringing to the notice of the court the

grounds for such cancellation. In a police case it is for the state to move

for cancellation of bail, but there is nothing in Section 437(5) of the

3 State vs. Sanjay Gandhi, AIR 1978 SC 961; 1978 CrLJ 952.
4 Bhore Singh vs. State, AIR 1956, ALL 671; 1956 CrLJ 671.
5 State of Maharastra vs. Anil Baloda Dambe, 1983 CrLJ 1308.

73
Criminal Procedure Code prohibiting the complainant in a police case

from applying for cancellation. Though no private person is entitled to be

heard in support of such an application, still when such an application is

made, it is open to the High Court to hear him in support of his

application. In a cognizable case challenged by the police, it was the

function of the state to question the order of bail, if it considered the said

order was unjustified, but when the state does not think it fit to come in

revision against the order, it may be that in exceptional cases a revision

by a private person is entertained.6

The High court can act suo muto under its revisional powers when

it comes to its notice that an inferior court has acted beyond its

jurisdiction, and the bail granted by such inferior court.7 In directing the

re-arrest of the accused person who has been admitted to bail it can act

suo moto or an application by the state or even by a private complainant.

But the High Court will of course, be both to interfere with the exercise

of direction by the Sessions Judge. But, if the order granting bail is

erroneous, it will set aside the order.8

Cancellation of bail necessarily involves the review of a decision

already made and can by and large be permitted only if, by reason of

supervening circumstances, it would be no conducive to a fair trial to

6 Devilal vs. Ganpat, AIR 1951, Raj 94; 52 CrLJ 631.

7 Public Prosecutor vs. Manikya Rao, 1959 CrLJ 1398.
8 Harminder Singh vs. Sarvajit Singh (1971) 73 Punj LR 76.

74
allow the accused to retain his freedom during the trial. A bail once

granted can not be cancelled on the off chance or on the supposition that

witnesses have been won over by the accused. But in an application for

cancellation of bail, the prosecution, can establish its case by showing on

a preponderance of probabilities, and not beyond reasonable doubt, that

the accused has attempted to tamper or has tampered with its witnesses,

or has abused his liberty or that there is a reasonable apprehension that he

will interfere with the course of justice. The power to take back in

custody an accused, who has been enlarged on bail, has to be exercised,

with care and circumspection but the power, though of an extraordinary

nature, is meant to be exercised in appropriate cases and refusal to

exercise that wholesome power in such cases, few though they may be,

will reduce it to a dead letter and will suffer the courts to be silent

spectators to the subversion of judicial process.9

Grounds on which bail may be cancelled are mentioned hereunder

by point wise:

1. when the accused continues or repeats the some offence while

he is on bail.

2. where the accused tampers with the prosecution evidence or

otherwise impedes the course of justice.

9 Mohinder Singh vs. Mai singh (1983) 2 Crimes 971.

75
3. where fresh evidence for believing that the accused has been

guilty of an offence punishable with death of imprisonment for

life has been discovered.

4. where bail is granted in wrong exercise of discretion.

5. The accused runs away to a foreign country or goes

underground or beyond the control of his sureties; or

6. He commits acts of violence, in revenge, against the police and

the prosecution witnesses and those who have booked him or

are trying to book him.

7. when charge is amended or there is a change of circumstances.

8. when the accused fails to appear before the court.

9. when the insufficient sureties have been accepted through

mistake, fraud or otherwise.

10. when the surety for the attendance and appearance of a person

released on bail applies to discharge the bond.

11. when the bond bas been forfeited.

12. when sufficient reasons exist to cancel any bond for keeping the

peace or for good behaviour.

13. where the accused had not only contravened the conditions

imposed on them while granting bail, but were trying to see that

the sole eye-witness, viz., the son of the deceased who either

76
 kidnapped or was also finished, so that no evidence was

available for the prosecution to substantiate their case.10

14. A perusal of the case dairy shows that more numerous materials

had been collected by the time of granting statutory bail under

section 167(2) Criminal procedure Code and on consideration

of those materials gathered upto filing the challan the

Magistrate considers it necessary to cancel the bail he may do

so.11

15. The accused on bail committed misconduct or misuse of the

terms of the bail bond or that the accused is tampering with the

evidence or is trying to abscond after the charge-sheet has been

filed.12

16. when the accused has imperiled the smooth course of

investigation or has been such acts, as in the opinion of the

court, are sufficient to cancel the bail already given.13

17. where by a preponderance of probabilities, it is clear that the

accused is interfering with the course of justice by tampering

with witnesses.

18. where the court came to the conclusion that after the challan had

been filed there are sufficient grounds that the accused had

State vs. Veerapandy, 1979 CrLJ 455.

Matia challan vs. State of Orissa (1978) 46 Cut LT 514.
Kallam Chinnaiah vs. State of Andhra Pradesh (1979) 2 Andh WR 375.
T.N. Jayadeesh Devidas vs. State of Kerala, 1980, CrU 906.

77
 committed a non-bailable offence and that it is necessary that he

should be arrested and committed to custody or that he has been

tampering with the evidence or that his being at large is not in

the interest ofjustice.14

19.where the person bailed out has done something which may

cause interruption in or obstruction to the smooth trial of the

case against him.15

As already, grounds on which cancellation of bail is ordered by the

courts are discussed above and there are some instances where

cancellation of bail cannot be ordered:

1. where the accused changed his counsel in the midst of the case

or when there is nothing on record to show that the accused had

anything to do with slogan raising in court compound.

2. when the accused is required for the purpose of securing

recovery under section 27 of the Evidence Act.

3. when a charge-sheet has been filed against the accused without

more.

4. The fact that prosecution witnesses have turned hostile without

showing some act or conduct on the part of the accused from

14 Bashir vs. State of Haryana, AIR 1978, SC 55.

15 Chandan Singh vs. State of Rajasthan, 1978, CrLJ 154(155).

78
 which a reasonable inference may arise that the witnesses have

gone back on the statements as a result of an intervention by or

on behalf of the accused.

5. The fact that before an order was passed under section 167(2),

the bail petition of the accused was dismissed on merits by the

Sessions Judge and the High Court is not relevant for taking

action under section 437(5) nor is it valid ground that

subsequent to release of the accused a challan was filed by the

police.

6. where an FIR is about an assault on the uncle of the

complainant had been lodged with the police or when a certain

witness presented an application before police that he was

threatened with dire consequences by the two accused persons

in case he appeared to give evidence against them in the murder

case.16

7. The fact that some of the accused who were released on bail had
17
absconded would be no reason for canceling the bail of others.

8. The mere allegation by the prosecution the accused who was

granted bail was missing.18

Maniram vs. Iday, 1976 Raj Cr.C 228.

Madha vs. State, 1961 Jab LJ 1341.
Sitaram Singh vs. State of Bihar, 1973 Cr.LJ 385.

79
 9. Previous involvement of the accused and his desperate character

will he of no consequence in an application for cancellation of

bail.19

As has already been noticed, bail in a bailable offence, except as

provided by in sub-section(2) of Section 436 Criminal Procedure Code

cannot be cancelled. In addition to persons accused of bailable offence,

bail granted to the following persons cannot also be cancelled:

(a) Bail granted to a person who has preferred an appeal or

revision cannot be cancelled by the court of appeal or

revision. Sections 389, 397 and 401 Criminal Procedure

Code do not provide for cancellation of bail. But, the High

Court may invoke the provisions of Section 482 Criminal

Procedure Code and cancel the bail granted to an appellant

or petitioner.

(b) The question of cancellation of bail does not arise in the case

of persons released under sections 42, 43, 56 and 58 of

Criminal Procedure Code.

(c) Bail granted to a person against whom security proceedings

are launched under Chapter VIII of the Code, cannot be

cancelled.

19 R.K. Naba Chandra Singh vs. Manipur Administration, AIR 1964 Manipur 39.

80
 (d) The question of cancellation of bail does not also arise in the

case of an accused person who is released under Section 169,

Criminal Procedure Code.

(e) Bail granted to a lunatic under Chapter XXV of the Criminal

Procedure Code.

The word ‘release’ in Section 437(5), Criminal Procedure Code

does not mean actual release. That word has to be construed in the

background and object of the provision itself. Sub-section(5) is

designated to protect interests of administration of justice and to prevent

it from being hampered in any manner. It is, therefore within the

competence of courts to cancel order of release on bail even before the

arrested person is actually released when jurisdiction to cancel order of

release on bail exists in the court the High Court in writ petition for

habeas corpus is not concerned with question as to whether or not the

court should cancel order of release.20

In Bholanath Das vs. State21 it was held that, the liberty of a person

even if he is accused of a heinous crime cannot be taken away lightly,

especially when there is considerable time-log between the date of

occurrence and the conclusion of the trial. The cancellation necessarily

20 Bakshi Saradari Lai vs. Superintendent, Tehar Central Jail, Delhi, 1968,
Cr.LJ 675 (Delhi).
21 Cr.LJ 1422 at 1426 (Cal).

81
involves a review of decision already made and can by and large be only

permitted if by way of supervening circumstances it would no longer be

conducive to a fair trail to allow the accused to retain him freedom during

the trial.

After giving much attention on all aspects the bail granted must not

be cancelled in a mechanical manner. In order to cancel bail court must

be satisfied with material on record to show abuse of trust was held in

State (C.B.I.) vs. Ashok Kumar Aggarwal.22

Rejection of bail, when the bail is applied for is one thing, and

cancellation of a bail already granted is quite on other. It is easier to

reject a bail application in a non-bailable case than to cancel a bail

granted in such a case and cancellation of bail necessarily involves the

review of a decision already made, can by and large be permitted only if,

by reason of supervening circumstances, it would be no longer conducive

to a fair trial to allow the accused to retain his freedom during the trial

was held in State through the Delhi Administration vs. Sanjay Gandhi.23

Sub-section(5) of 437 authorises a Magistrate granting bail to

cancel it. It must be remembered that under this section bail may be

cancelled only by the court who has granted it. A successor Magistrate is

the same court and so he can cancel the bail was held in Dhana Suren vs.

22 2001 CriLJ p.1905, Delhi.

23 1978, Cr.LJ 952; AIR 1978 Sc 961.

82
State.24 A court to whom a case is transferred can cancel the bail was

held in Emperor vs. Roultmal.25

In Bholai Mistry vs. State26 Sub-section(5) of Section 437

authorises a Magistrate to cancel the bail of the person who has been

granted bail by the Magistrate himself. A Magistrate cannot cancel the

bail of the person who has been granted bail by Sessions Judge or High

Court.

In Talab Haji Hussain vs. Madhukar Purushotham Mandkar and

another37 inherent power under old code section 561-A (under new code,

1973 section 482) was exercised in cancellation of bail in case of bailable

offence. The order committing the accused to custody is a judicial order

passed by a Criminal Court of competent jurisdiction. His commitment

to custody thereafter is not by reason of the fact that he is alleged to have

committed a bailable offence at all, his commitment to custody is the

result of a judicial order passed on the ground that he has forfeited his

bail and that his subsequent conduct showed that, pending the trial, he

cannot be allowed to-be at large. Now, where a person is committed to

custody unaer such an order, it would not be open to him to fill back upon

his rights under Section 496, for Section 496 would in such circumstances

be inapplicable to his case. It may be that there is no specific provision

24 1977 Cr.LJ 781.
25 AIR 1940 Bom. 40.
26 1977 Cr.LJ 492 (Cal).
27 1958 AIR (SC) 376.

83
for the cancellation of the bond and the re-arrest of a person accused of a

bailable offence, but that does not mean that Section 496 entitles such an

accused person to be released on bail, even though it may be shown that

he is guilty of conduct entirely subversive of a fair trial in the court. We

do not read Section 496 as conferring on a person accused of a bailable

offence such an unqualified absolute and an indefeasible right to be

released on bail.

If a fair trial is the main objective of the Criminal Procedure, any

threat to the continuance of a fair trial must be immediately arrested and

the smooth progress of a fair trial must be ensured, and this can be done,

if necessary, by the exercise of inherent power. The classification of

offences into bailable and non-bailable on which are based the different

provisions as to the grant of bail would not, in our opinion, have any

material bearing in dealing with the effect of the subsequent conduct of

accused persons on the continuance of a fair trial itself. If an accused

person, by his conduct, puts the fair trial into jeopardy, it would be the

primary and paramount duty of Criminal Courts to ensure that the risk to

the fair trial is removed and criminal courts are allowed to proceed with

the trial smoothly and without any interruption or obstruction and this

would be equally true in cases of both bailable as well as non-bailable

offences. We, therefore, feel no difficulty in holding that, if, by his

subsequent conduct, a person accused of a bailable offence forfeits his

84
right to be released on bail, that forfeiture must be made effective by

invoking the inherent power or the High Court under Section 561-A.

Omission of legislature to make a specific provision in that behalf is

clearly due fo oversight or inadvertence and cannot be regarded as

deliberate.

The right to bail under section 167(2) proviso (a) thereto is

absolute. It is a legislative command not courts discretion. Even though,

bail granted under this section 167(2) was also can be cancelled, this was

explained in Rajnikant Jivanlal Patel and another vs. Intelligence Officer,

Narcotic Control Bureau, New Delhi where, under sub-section(5) of

Section 437, the court if it considers it necessary, direct that the person on

bail be arrested and committed to custody. The bail may be cancelled by

the court if it comes to the conclusion that there are sufficient grounds

that the accused has committed a non-bailable offence and that it is

necessary that he should be arrested and committed to custody.

An order for release on bail under proviso (2) to Section 167(2)

may appropriately by termed as an order-on-default. Indeed, it is a

release on bail on the default of the prosecution in filing charge sheet

within the prescribed period. The right to bail under section 167(2)

proviso (9) thereto is absolute. It is a legislative command and not courts

discretion. If the investigating agency fails to file charge-sheet before the

28 1990 AIR (SC) 71.

85
expiry of 90-60 days, as the case may be, the accused in custody should

be released on bail. But at that state, merits of the case are not to be

examined. Not at all, in fact, the Magistrate has no power to remand a

person beyond the stipulated period of 90-60 days. He must pass an order

of bail and communicate the same to the accused to furnish the requisite

bail bonds.

The accused cannot, therefore, claim any special right to remain on

bail. If the investigation reveals that the accused has committed a serious

offence and charge-sheet is filed, the bail granted under proviso (a) to

section 167(2) could be cancelled.

Release of accused on account of non filing of charge-sheet by

police and thereafter cancellation of bail when charge is filed is not

permissible was clearly explained in Bashir and Others vs. State of

Haryana.29 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

under section 437(1) or (2) and these provisions are applicable to a person

who has been released under section 167(2). Under Section 437(2) when

a person is released pending inquiry on the ground that there are not

sufficient grounds to believe that he had committed a non-bailable

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 inquiry

29 1978 AIR (SC) 55.

86
is completed. As the provisions of Section 437(1), (2) and (5) are

applicable to a person who has been released under section 167(2) the

mere fact that subsequent to his release a challan has been filed is not

sufficient to commit him to custody.

Power of High Court and Sessions Judge to cancel bail was

explained by Supreme Court in Gurucharan Singh and Others vs. State

(Delhi Administration).30 Under Section 439(2) of the new code, the

High Court or the court of session may direct any person who has been

released on bail to be arrested and committed to custody.

A court of session cannot cancel a bail which has already been

granted by the High Court unless new circumstances arise during the

progress of the trial after an accused person has been admitted to bail by

the High Court. If, however, a court of session had admitted an accused

person to bail, the state, has two options. It may move the sessions judge

if certain new circumstances have arisen which were not earlier known to

the state and necessarily, therefore, to that court. The state may as well

approach the High Court being the superior under section 439(2) to

commit the accused to custody. When, however, the state is aggrieved by

the order of the sessions judge granting bail and there are no new

circumstances that have cropped up except those already existed, it is

facile for the state to move the session judge again and it is competent in

30 1978 Cr.LJ 129; 1978 SCC (Cr) 41.

87
law to move the High Court for cancellation of the bail. This position

follows from the subordinate position of the court of session vis-a-vis the

High Court. The question of cancellation of bail under section 439(2)

Criminal Procedure Code of the new code is certainly different from

admission to bail under section 439(1) Criminal Procedure Code.

Grant of bail by High Court on the basis of same material and

circumstances and application for cancellation is moved before another

bench of the same High Court, where cancellation of the earlier order not

justified because so far High Court is concerned earliest order of grant of

bail becomes final being not appealed against was explained by the

Hon’ble Supreme Court in the following terminology in Vikramjit Singh

vs. State of Madhya Pradesh31 as, “it appears that the learned judge while

passing the impugned order, failed to appreciate that no Bench can

comment on the functioning a Co-ordinate bench of the same court, much

less sit in judgment as an appellate court over its decision. If the state

was aggrieved by the order of bail by Mr. Justice B.C. Varma it could

have approached this court but, that was not done. The Judgment of Mr.

Justice B.C. Varma, therefore, become final so far the High Court was

concerned. If the appellant had misused the bail or new materials came to

light, it would have been open to the prosecution to move for

cancellation, but that is not the position in the present case on the basis of

31 1992 Cr.LJ 516.

88
the same materials and in the same circumstances in which the order was

earlier passed in favour of the appellant by the High Court, the

application for cancellation was made entirely as a sequel to the

observations made by Mr. Justice Gupta while dealing with the

application of another accused. It must be, therefore, held that Mr.

Justice Gupta had no authority to upset the earlier order of the High

Court. That, which could not be done directly could also not be done

indirectly. Otherwise, a party aggrieved by an order passed by one bench

of the High Court would be tempted to attempt to get the matter re­

opened before another Bench, and there would not be any end to such

attempts. Besides, it was not consistent with the judicial discipline which

must be maintained by courts both in the interest of administration of

justice by assuring the binding nature of an order which becomes fmal,

and the faith of the people in the judiciary.

The Hon’ble Supreme Court in many cases has pointed out that,

the Apex Court is not inclined to interfere with the orders of High Court

or Sessions court regarding to granting or refusing to grant bail to an

accused person either facing a criminal trial or whose case after

conviction is pending in appeal. However, when there is a confusion

regarding the rational of bail and an application is made before it, it

becomes a duty imposed on the Apex Court to be justified on the relevant

case. The same issue we can come across in the following two cases:

89
(i) where in Mohan Singh vs. Union Territory of Chandigarh32 bail

was granted by the Session Judge after hearing counsel on both

sides but it was cancelled by the High Court mainly for the reason

that the appellant had simultaneously moved for bail in the sessions

as well as in the High Court without disclosing to the sessions

court that he had moved for bail in the High Court. This naturally

made the High Court feel that the party was not straight forward in

his dealing with the court. Refusal of bail is not an indirect process

of punishing an accused person before he is convicted. This is a

confusion regarding the bails and their cancellation. Hence, bail

order was restored.

(ii) In Bhagirath Sinh Jadeja vs. State of Gujarat33 the order granting

the bail by the learned Sessions Judge was set aside by the High

Court adopting an approach which does not command to the

Hon’ble Judges.

The learned judge of the High Court has misdirected himself while

examining the question of directing cancellation of bail by interfering

with a discretionary order made by the learned Sessions Judge. One

could have appreciated the anxiety of the learned judge of the High Court

that in the circumstances found by him that the victim attacked was a

32 AIR 1978 SC 1095.

33 AIR 1984 SC 372.

90
social and political worker and, therefore, the accused should not be

granted bail but we fail to appreciate how that circumstance should not be

granted bail but we fail to appreciate how that circumstance should be

considered so overriding as to permit interference with a discretionary

order of the learned Sessions Judge granting bail. The High Court

completely overlooked the fact that it was not for it to decide whether the

bail should be granted but the application before it was for cancellation of

the bail. Very cognate and overwhelming circumstances are necessary

for an order seeking cancellation of bail.

In an appropriate case the court should release under trial prisoners

without insisting on surety was discussed in Hussainara Khatoon and

Other vs. Home Secretary, State of Bihar, Patna34 that, the courts must

abandon the antiquated concept under which pretrial release is ordered

only against bail with sureties. That concept is outdated and experience

has shown that it has done more harm than good. The new insight into

the subject of pretrial release which has been developed in socially

advanced countries and particularly the United States should now inform

the decisions of our courts in regard to pretrial release. If the court is

satisfied, after taking into account, on the basis of information placed

before it, that the accused has his roots in the community and is not likely

to abscond it can safely release the accused on his personal bond. To

34 1979 Cr.LJ 1036.

91
determine whether the accused has his roots in the community which

would deter him from fleeing, the court should take into account the

following factors concerning the accused:

1. The length of his residence in the community;

2. His employment status, history and his financial condition;

3. His family ties and relationships;

4. His reputation, character and monetary condition;

5. His prior criminal record including any record or prior release

on recognizance or on bail;

6. Ihe identity of responsible members of the community also

would vouch for his reliability.

7. The nature of the offence charged and the apparent probability

of conviction and the likely sentence in so far as these factors

are relevant to the risk of non-appearance and

8. Any other factors indicating the ties of the accused to the

community or bearing on the risk of willful failure to appear.

If the court is satisfied on a consideration of the relevant factors

that the accused has his ties in the community and there is no substantial

risk of non-appearance, the accused may, as far as possible, be released

on his personal bond.

92
 Amount of bond should depend upon the financial circumstances

of the accused, was also discussed in this case, as the decision as regards

the amount of the bond should be on individualized decision depending

on the individual financial circumstances of the accused and the

probabilities of his absconding. The amount of the bond should be

determined having regard to these relevant factors and should not be

fixed mechanically according to a schedule keyed to the nature of the

charge. Otherwise, it would be difficult for the accused to secure his

release even by executing a personal bond.

The Magistrate should require execution of bond to also appear

before sessions court so as to avoid re-arrest of accused for appearance

before sessions court this issue was explained in Free Legal Aid

Committee vs. State of Bihar35 where it was held that, the practice

followed is that when an accused is released on bail by the Magistrate, the

bail is granted to him only during the tendency of the inquiry before the

Magistrate, with the result that when the case is committed to the court of

session, he is re-arrested and brought before the court of session where he

has to apply once again for fresh bail. This causes considerable in

convenience to the accused without any corresponding advantage so far

as the administration of criminal justice is concerned. This situation can

however easily be avoided because there is a provision in Section 441

35 1982 Cr.LJ 1943.

93
sub-section (3) of the Criminal Procedure Code under which bail can be

granted to an accused so as to bind him to appear before the court of

session, in which event, on committal, he would not have to be re­

arrested and brought before the court of session. It is also clear from

Section 209, clause(b) of the Criminal Procedure Code that the

Magistrate has discretion to release the accused on bail “during and until

completion of trial” even in cases where the offence is triable by the court

of session. We, therefore feel that it would avoid hardship to an accused

if the Magistrate, while releasing the accused on bail, requires execution

of a bond with or without surety, as the case may be, binding the accused

not only to appear as and when required before him but also to appear

when called upon in the court of session.

Property of condition that, surety should be from specific district is

not a condition to grant bail was discussed in Moti Ram and Others vs.

State of Madhya Pradesh36 wherein, it shocks one’s conscience to ask a

manson like the petitioner to furnish sureties for Rs. 10,000/-. The

Magistrate must be given the benefit of doubt for not fully appreciating

that our Constitution enacted by “we. the people of India”, is meant for

the butcher, the baker and the candle stick maker shall we add, the

bonded labour and pavement dweller.

1978 Cr.LJ 1703.

94
 To add insult to injury, the Magistrate has demanded sureties from

his own district! (we assume the allegation in the petition) what is a

Malayalee, Kannadiga, Tamil or Telugu to do if arrested for alleged

misappropriation or theft or criminal trespass in Bastar, Port Blair,

Pahalgam or Chandni Chowk ? He- cannot have sureties owning

properties in these distant places. He may not know any one there and

might have come in a batch or to seek a job or in a morcha. Judicial

disruption of Indian unity is surest achieved by such provincial allergies.

What law prescribes sureties from outside or non-regional language

applications ? What law prescribes the geographical discrimination

inflict in asking for sureties from the court district ? This tendency takes

many forms, sometimes, geographic, sometimes linguistic, sometimes

legalistic. Article 14 protects all Indians qua Indians, within the territory

of India. Article 356 sanctions representation to any authority, including

a court, for redress of grievances in any language used in the Union of

India. Equality before the law implies that even a Vakalat or affirmation

made in any state language according to the law in that state must be

accepted everywhere in the territory of India save where a valid

legislation to the contrary exists, otherwise, an adivasi will be confree in

Free India, and like wise many other minorities. This divagation has

become necessary to stay the judicial beginnings, and to inhibit the

95
process of making Indians aliens in their own homeland. Sawaraj is

made of united stuff.

It was further discussed that, we leave it so parliament to consider

whether in our socialist republic with social justice as its hallmark,

monetary superstition, not other relevant considerations like family ties,

roots in the community, membership of stable organizations, should

prevail for bail bonds to ensure that the “bailee” does not flee justice.

The best guarantee of presence in court is the reach of the law, not the

money tag. A parting thought. If the indigents are not to be betrayed by

the law including bail law, re-writing of many procedural laws in an

urgent desideration; and the judiciary will do well to remember that the

geo-legal frontiers of the central codes cannot be disfigured by

cartographic dissection in the name of language or province.

Accused persons pleading defence on the basis of certain

documents which were not placed on record by the prosecution. Defence

is founded on a relevant and vital document seized from the custody of

the accused and not deliberately produced. It was the duty of the

prosecution to produce. As per the facts of the case, the release order

No.115 in order to remove all doubts by showing that, the goods which

were being dispatched by the appellant, were not covered by the release

order. The said statement of PW that in the release orders dated March 7,

1968 delivery was marked in respect of the goods which were dispatched

96
outside without producing the release order in question, is no evidence at

all and is also no answer to the defence plea that the said 22 bags of

wheat were loaded in the truck as per the release order No. 115. As the

release order, which his a very relevant and vital document, had been

deliberately withheld by the prosecution, the conviction of the appellant

cannot be sustained was held in Chittaranjan Chowdary vs. State of

Bihar.37

Non-filing of a cross-complaint may be a relevant factor, but that

there were injuries on both sides has to be accepted. This fact was known

to the court when it granted bail. This ground is not strong enough for

cancellation of bail was held in Kashmira singh vs. Duman Singh.38

Further, it was held that, it was the prosecution/complainant’s duty to

bring to the court’s notice that two applications of the co-accused for bail

were rejected. If the accused did not mention it, nothing prevented the

opposite side from placing it on record. It seems to be an omission on the

part of the prosecution/complainant’s side but, for that it would be wrong

to charge them with having suppressed facts.

An order resulting from suppression of material facts and on a false

statement is a nullity in law. There is no need of any judicial precedent in

support of the aforesaid proposition. This circumstance, would alone, be

37 1987 CrLJ 773.

38 (1996) 4 SCC 693.

97
sufficient to cancel the bail granted to the accused was held in state of

Maharastra vs. Walchand Hiralal Shaha.39

Bail once granted should not be cancelled in a mechanical manner

without considering whether any supervening circumstances have

rendered it no longer conducive to a fair trial to allow the accused to

retain his freedom by enjoying the concession of bail during the trial.

These principles, it appears, were lost sight of by the High Court when it

decided to cancel the bail, already granted. The High Court it appears

overlooked the distinction of the factors relevant for rejecting bail in a

non-bailable case in the first instance and the cancellation of bail already

granted was held in Dolat Ram vs. State of Haryana.40

The cancellation of anticipatory bail is not permissible, unless it

could be .shown that the person enlarged on anticipatory bail was

interfering with the course of justice by tampering with witnesses, or that

he was abusing his liberty in other ways was held in Chain Singh Dhakad

vs. Hargovind.41

It is not only a tradition to enquire about the antecedent of a man

who is applying for bail, but to find out whether he has a bad record

39
1996 CrLJ 1098 at 1099 (Bom).
40
Cr.LJ 124 (SC).
41
1991 Cr.LJ 33 (MP).

98
particularly the record must suggest that he is likely to commit serious

offence while on bail. In regard to habituals, it is part of criminological

history that a bail order enables the bailee to inspire opportunity to inflict

further crime on the members of the society. Hence, no bail should be

granted to such persons, was held in Puran vs. Ram Bilas.42

In state of West Bengal vs. Md. Javed Khan,43 it was held that,

when a person is granted bail and anticipatory bail in other offence. Yet

be commits an offence in such circumstances granting of anticipatory bail

is not proper, such order granting anticipatory bail is liable to be quashed.

Where the accused was released on bail for offence under section

323, 324, 504 of Indian Penal Code, he was subsequently charge-sheeted

under section 326 of Indian Penal Code. The accused prayed for

continuation of same bail bond in respect of fresh offence. In such cases,

it was held in Rama Puti Yadav vs. State of U.P.44 that, earlier offence

being bailable, accused was granted bail as of right and that too in

absence of injury report, supplementary report and x-ray report.

Considering the seriousness of the injuries, the accused could not be

permitted to continue on the same bail bonds. They will have to apply for

fresh bail for offence under section 326 of Indian Penal Code.

42
2001 Cr.LJ 2566 (SC).
43
1999 Cr.LJ 2733 (Cal).
44
2002, Cr.LJ 3646 All.

99
 Where there was serious economic offence of misappropriation of

public amount to the tune of Rs.6,00,000/- committed by bank employee,

held in Champakbai Amirbhai Vasava s. State of Gujarat45 that, such

offence could not be viewed lightly as it would shake confidence of

public in scheduled banks. Therefore, merely on ground of long

detention or that are no chances of his absconding or tampering with the

evidence, the bail application was rejected.

3.2 GRANTING OF BAILS UNDER SPECIAL ACTS;

There are a variety of crimes exist in a society is a challenge to its

members due to its deleterious effect on the ordered social growth

broadly, speaking these are categorized into two heads, namely:

1. Legal Crimes

2. Socio-Economic Crimes

Legal crimes can be termed as traditional crimes such as assault,

robbery, decoity, murder, rape, kidnapping, theft, hurt and rioting etc.,

these all offences have fallen under Indian Penal Code. These offences

are classified into bailable and non-bailable offences and certain

2001 Cr.LJ 4475 (Guj).

100
conditions are required to get the bail for which provisions of Criminal

Procedure Code will apply.

Socio-Economic offences includes profiteering, black marketing,

hoarding, adulteration of food-stuffs, drugs, trafficking in licenses and

permits, tax evasion, usvary, violation of rules regarding foreign

exchange etc. Socio-economic offences are most dangerous to society

than traditional crimes because there is no effective programme for the

enforcement of criminal law against this offence.

Some Socio-economic offences have fallen under bailable and

some other under non-bailable. In bailable offences we can get bail as a

matter of right. But, in case of non-bailable offences, accused can get

bail only on the discretion of the court. Hence, for some special Acts

provisions of criminal procedure court will apply and for some Acts the

provisions mentioned under respective, Acts will apply. Even under

Special Acts getting bail by the accused is as harder as in case of

traditional crimes or crimes under Indian Penal Code. An offence may be

a legal or Socio-economic it always badly effects the society.

For this chapter not all but some categories of Special Acts, under

which granting of bails were discussed.

101
1. The Essential Commodities Act. 1955;

The Essential Commodities Act, 1955 is a special enactment to

provide in the interests of the general public, for the control of the

production, supply and distribution of trade and commerce in certain

commodities.

Section 2(a) defines (a) “Essential Commodity” means any of the

following classes of commodities:

i

(i) Cattle fodder, including oil cakes and other concentrates;

(ii) Coal, including code and other derivatives;

(iii) Component parts and accessories of automobiles;

(iv) Cotton and Woolen textiles;

(v) Drugs

Explanation:

In this sub-clause, “drugs” has meaning assigned to it in the clause

(b) of section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940).

(vi) Food stuffs, including edible oil seeds and oils;

(vii) Iron and steel, including manufactured products of iron and

steel;

(viii) Paper, including newsprint, paper board and strawboard;

(ix) Petroleum and petroleum products;

102
 (x) Raw cotton whether ginned or unginned cotton seed;

(xi) Raw jute;

(xii) Any other class of commodity which the Central Government

may by notified order,

Declare to be an essential commodity for the purposes of this Act,

being a commodity with respect to which Parliament has power to make

laws by virtue of Entry 33 in List in of the Seventh Schedule to the

Constitution.

Section 10A of this Act explains that, Notwithstanding anything

contained in the code of Criminal Procedure 1973, every offence

punishable under this Act shall be cognizable and bailable. It means, in

view of the above legal provision the offences under this Act are not non-

bailable offences. Cognizance of such an offence can be taken but in the

absence of any other provisions showing offence to be non-bailable and

the offence would be continued to be bailable in the view of schedule to

the code of Criminal Procedure.

Sub :ection(i)(d) of Section 12AA of the E.C. Act, provides that

save as afore said no person accused of suspected of the commission of

an offence under this Act shall be released on bail by any court other than

a Special Court or the High Court. Therefore, the language of the said

103
provision is so clear that there is no scope for entertaining any doubt in

regard to the exclusive power of the Special Court to grant anticipatory

bail.46

In view of the proviso to CL(d) Section 12AA of the Act, a plain

reading of the provisions of the makes it manifestly clear that they

comprehend the entire procedure for dealing with persons accused of

offences under the Act. CL(d) quoted above, expressly provides that no

person accused of or suspected of the commission of an offence under the

Act shall be released on bail by any court other than a Special Court or

the High Court. CL(d), therefore, clearly and unmistakably ousts the

jurisdiction of the court of Session to grant bail to a person accused of or

suspected of the commission of an offence under the Act; and if

anticipatory bail can be regarded as a species of bail then undoubtedly a

court of Session, in view of the express prohibition of CL(d), would be

powerless to grant anticipatory bail to such a person just as if it is

powerless to grant bail to such a person under Section 439, Criminal

Procedure Code, 1973.47

In Gurubaksh Singh vs. State of Punjab48 Public prosecutor

representing the state, vehemently contended before court that ‘bail’ and

‘anticipatory bail’ are two entirely different concepts and anticipatory bail

46 Kataria R.P, “Law of Bails, Bonds and Arrest” (2003) p. 1078.

47 Ibid.
48 AIR 1980 SC 1632; (1980) Cri.LJ. 1125).

104
can never be equated with bail. That, being the position, argued could the

court of Session possesses and the Special Court constituted under the

Act does not possess the power to grant anticipatory bail to a person

accused of or suspected of the commission of an offence under the Act.

For reasons to be stated hereunder, court finds it difficult to accept the

contention of counsel.

As already printed out by Court, the answer to the question lies in

the interpretation of the term bail. In other words, the question is whether

the term ‘oail’ includes ‘anticipatory bail’ introduced by Section 438,

Criminal Procedure Code, 1973.49

In this context, the Hon’ble Supreme Court fiirther reported that:-

“The facility which Section 438 affords is generally referred to as

‘anticipatory bail’ an expression which was used by the law Commission

in its 41st report. Neither the section nor its marginal note so describes it

but the expression ‘anticipatory bail’ is a convenient mode of conveying

that it possible to apply for bail in anticipation of arrest. Any order of

bail can, of course, be effective only from the time of arrest because, to

grant bail, as stated in Warton’s Law Lexican, is to set at liberty a person

arrested or imprisoned, on security being taken for his appearances.

Thus, bail is basically release from restraint, more particularly release

from the custody of the police. The act of arrest directly affects freedom

49 Kata.:a R.P, “Law of Bails, Bonds and Arrest” (2003) p. 1079.

105
 , i .

of movement of the person arrested by the police, and speaking generally,

an order of bail gives back to the accused that freedom on condition that

he will appear to take his trial. Personal recognizance, suretyship bonds

and such other modalities are the means by which an assurance is secured

from the accused that though he has been released on bail, he will present

himself at the bail of offence or offences of which he is charged and for

which he was arrested. The distinction between an ordinary order of bail

and an order of anticipatory bail is that whereas the former is granted

after arrest and therefore means release from the custody of the police,

the latter is granted in anticipation of arrest and is therefore, effective at

the very moment of arrest.”50

The above observation of the Supreme Court gives the clear

indication that “anticipatory bail” falls within the category of ‘bail’, or, to

be more precise, the term ‘bail’ includes ‘anticipatory bail. If, therefore,

in view of the express prohibition contained in CL.(d) of Section 12AA

of the Act, the court of Session has no power to grant bail to a person

accused of or suspected of the commission of an offence under the Act it

follows, as a necessary corollary, that it has also no power to grant

anticipatory bail in such a case. Conversely, as the Special Court has the

power to grant bail it has also the power to grant anticipatory bail.51

50 Kataria R.P, “Law of Bails, Bonds and Arrest” (2003) p. 1079.

51 Ibid.

106
 The view taken by court stands fortified by Section 12AC of the

Act which, for proper appreciation, is extracted below:

“12AC Application of code to proceedings before a Special Court.

Save as otherwise provided in this Act, the provisions of the code

(including the provisions as to bail and bonds) shall apply to the

proceedings of the said provisions, the Special Court shall be deemed to

be a Court of Session and the person conducting a prosecution before a

Special Court, shall be deemed to be a Public Prosecutor”.

In view of the deeming provision contained in the above section,

the Special Court constituted under the Act is to be regarded as a Court of

Session in relation to proceedings before it and the provisions of Chart

XXXIII, or Criminal Procedure Code as to bail and bonds shall be

applicable to such proceedings. That being the position, the Special court

is fully competent to grant anticipatory bail under Section 438, Criminal

Procedure Code to a person accused of or suspected of the commission of

Cry

an offence under the Act.

As per Section 12AC of the Act, the provisions of the code

(including .the provisions as to bail and bonds) shall apply to the

proceedings before a Special Court and for the purposes of the said

provisions, the Special Court shall be deemed to be a court of session and

52 Kataria R.P, “Law of Bails, Bonds and Arrest” (2003) p. 1080.

107
the person conducting a prosecution before a Special Court, shall be

deemed to be a Public Prosecutor.

There was difference of opinion between some of the High Courts

#■*
whether the High Court or the Special Courts have powers to grant

anticipatory bail to a person accused of Essential Commodities Act under

Section 438 Criminal Procedure Code. There is a reported decision of

learned single Judge of this court in Harish vs. State of Rajasthan53

wherein Justice S.C. Agarwal after noticing Section 12AA and Section

12AC has come to the conclusion that Section 438 is applicable to the

* proceedings under the Essential Commodities (special provisions) Act,

1981. Karnataka High Court has taken the same view in S.

Murugeshappa vs. Stat of Karnataka54 whereas, the Andhra Pradesh High

Court in S.A. Ismail vs. Inspector of Police Vigilence Cell,55 has held that

the High Court has no power to grant anticipatory bail under section 438

Criminal Procedure Code.

Thus, in Suresh Chand vs. State of Rajasthan56 it was held that, it is

true that the Essential Commodities Act, 1955 was enacted to provide, in

the interest of the general public, for the control of the production, supply

and distribution of, and trade and commerce in certain essential

53 1984 Raj LW 665.

54 1984 Cri.L.J. 1819.
55 1984 Cri.LJ. 1855.
56 1985 Cri.LJ. 1750.

108
commodities. Temporary amendments for five years from the date of

enforcement of the Essential Commodities (Special Provisions) Act, 1981

with effect from 1st Sept., 1982 were introduced with a view that the cases

under the Essential Commodities Act should be disposed of by Special

Courts specially appointed in this behalf at an early date and in that

connection Sections 12A, 12AA, 12AB and 12AC were introduced and

substituted for the old Section 12AA(d) provides that no person accused

of or suspected of the commission of offence under the Essential

Commodities Act should be released on bail by any court other than

special court or the High Court, provided that Special Court shall not

release any person on bail without giving the prosecution an opportunity

to oppose the application for such release unless the Special Court for

reasons to be recorded in writing is of opinion that it is not practicable to

give such opportunity and secondly, where the prosecution opposes the

application, if the Special Court is satisfied that there appears reasonable

grounds for believing that he has been guilty of the offence concerned.

It further provides that if the accused is under the age of 16 years is

a woman or is a sick or inform person, the Special Court may release on

bail, if the Special Court is satisfied that it is just and proper so to do.

This sub section envisages that a person should be first arrested and then

he can apply for bail, which is a similar provision like Section 439

Criminal Procedure Code will not apply to cases to cases under the

109
Essential Commodities Act. The Legislature while enacting Section

12AA was fully aware of the existence of Section 438 Criminal

Procedure Code and if they intended that the Special Court or the High

Court should not exercise power under Section 438 Criminal Procedure

Code in cases under the Essential Commodities Act, nothing prevented

them to make a mention in Section 12AA and the very fact that the

legislature has omitted to specifically debar the jurisdiction of the Special

Cqurt or the High Court under Section 438 Criminal Procedure Code

shows that the legislature never intended to do so. More ever, reading of

Section 12AC makes it quite clear that the provisions of Criminal

Procedure Code (including the provisions as to bail and bonds) shall

apply to proceedings before the Special Court. Thus, in court view the

answer to the question referred to court is in the affirmative, that is, the

High Court has power to grant anticipatory bail to a person accused under

Essential Commodities Act, but the High Court should exercise its

discretion fairly and properly keeping in view the ambit and scope of

Section 438 Criminal Procedure Code as explained in judicial

pronouncements. It should not be as a matter of course that Anticipatory

bail should be granted for mere asking. High Court should apply its mind

to the facts of each case and then exercise its dissector judicially. The

person has to be exercised very sparingly and in exceptional cases.

110
2. Customs Act 1962:

An Act which provide to prohibit importation or exportation of

goods for the prevention of smuggling, of injury to the economy of the

country by the uncontrolled import or export of gold and silver of serious

injury to domestic production of goods of any description, of deceptive

practices and the protection of human, animal or planet life or health.

Section 2(22) defines the “goods” includes:

(a) Vessels, air craft and vehicles;

(b) Stores;

(c) Baggage;

(d) Currency and negotiable instruments and

(e) Any other kind of movable property.

The Customs Officer has the power to release a person on bail, it

implies that he had the power to refuse bail as well, which required the

Customs Officer to produce the detained person before the Magistrate and

then could it be said, if the Magistrate decided to refuse trial, the person

will have tp be left in the lurch? The power of bail, refusal of bail and

remand are automatically attracted in view of the provisions of Section

4(2) of the code, the parent Act, which steps in the area not provided for

under the Customs Act. A look at the provisions under section 437

111
Criminal Procedure Code clearly visualizes the possibility of not only a

person accused of an offence, but also a person suspected of the

commission of any non-bailable offence being brought before the court

and the powers of the court to release such person on bail. It could not

also be overlooked that Section 437 Criminal Procedure Code takes in its

sweep release on bail of a person accused of or suspected of the

commission of any non-cognizable offence who was arrested or detained

without a warrant and was brought before the court other than the High

Court or Court of Session. Similarly, the provisions of Section 438

Criminal Procedure Code point out the reasonable behalf of a person that

he may be arrested of an accusation of having committed a non-

cognizable offence, praying for release in the event of arrest. All this will

put an end to the fallacy that the customs officer will have to produce any

person arrested before a Magistrate only for being released, without any

other power being exercised by the Magistrate.57

The absence of the provisions in the Customs Act for remand and

bail necessarily involves the application of Section 4(2) Criminal

Procedure Code and in that view there cannot be any doubt whatsoever

that a Magistrate has power not only to remand the person produced by

the Customs Officer, but also to release him on bail one cannot overlook

that the objects and scope of production of the persons arrested before a

57 Katana R.P, “Law of Bails, Bonds and Arrest” (2003) p. 1084.

112
Magistrate with the least possible delay was not only for the application

of the Judicial mind relating to the custody to be ordered, but also to

enable such persons to make any representation in the matter. At this

stage contemplated under Section 167 Criminal Procedure Code, a

Magistrate does not take cognizance of a case when the object appears to

be to prevent abuses by the investigating agency.58

In Anil Mahajan vs. Commissioner of Customs59, the petitioner

was accused of offence under section 132 and 135 (27(b) of the Customs

Act, 1962 on conviction, the maximum sentence that can be imposed on

the petitioner was imprisonment for a term which may extend to seven

years. The petitioner was arrested on 4th August, 1999 and he has been in

Judicial Custody since then. The investigation in the case has been

completed and Criminal complaint has been filed in the court. The goods

in respect of respondents and hence no further recovery was to be

effected.

The main witnesses in the case were official witnesses and the

court did not find sufficient reasons to have a reasonables apprehension

that the petitioner will tamper with prosecutor evidence if he was released

on bail. From the materials placed on record, it was clear that the

58 Katana R.P, “Law of Bails, Bonds and Arrest” (2003) p.1084.

59 2000 Cri.LJ. 2904 at 2102 (Delhi).

113
petitioner was an established business man with roots in the society. The

court not inclined to refuse bail to the petitioner on the ground that he was

accused of a services economic offence.

If the investigation has not been completed or, there are sufficient

reasons to have a reasonable apprehension that the accused will free from

justice or will tamper with prosecution. The court may refuse the bail.

In Prashant Kumar vs. Mancharlal Bhagatram Bhatra60 the trial

court Magistrate wholly unjustified in granting the impugned order of

bail. The goods seized in the present case are valued at over Rs.23 lakhs

and this is only one incident in a chain of the illegal activities carried in

the matter of smuggling. If the respondents had been produced before the

Magistrate on the 1st July, 1987 after the arrest on the 30th June, 1987 to

say the least the impugned order of bail smacks of non-application of

mind has the tendency to scuttle the investigation and to repeat the said

order is not supported by any reasons whatsoever. The said order of bail,

therefore deserve to be set aside.

NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT. 1985:

An Act to consolidate and amend the law relating to narcotic drugs,

to make stringent provisions for the control and regulation of operations

60 (1988) 1 Bom. CR 31 at 33.

114
relating to narcotic drugs and psychotropic substances, to provide for the

forfeiture of property derived from, or used in, illicit traffic in narcotic

drugs and psychotropic substances, to implement the provisions of the

International Conventions on Narcotic Drugs and Psychotropic

Substances and for matters connected therewith.

Section 2(xiv) defines “opium” means

(a) The Coagulated juice of the opium poppy; and

(b) Any mixture with or without any neutral material of the coagulated

juice of the opium poppy, but does not include any preparation

containing not more than 0.2 percent of morphine.

Section 2(xxiii) defines “psychotropic substance” means any

substance, natural or synthetic, or any national material or any salt or

preparations of such substance or material included in the list of

psychotropic substance or material included in the list of psychotropic

substances specified in the schedule.

By means of the Amendment Act 9/2001 a radical change has been

effected in:-

Section 37: The amended Section 37 reads as follows:

Which deals with the offences to be cognizable and non-bailable.

115
(1) Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974): -

(a) Every offence punishable under this Act shall be cognizable.

(b) No person accused of an offence punishable for offences under

section 19 or section 24 or section 27-A and also for offences

involving commercial quantity shall be released on bail or on his

over bond unless:-

(i) The public prosecutor has been given an opportunity to

oppose the application for release and

(ii) where the public prosecutor oppose an application the court

is satisfied that there are reasonable grounds for believing

that he is not guilty of such offence and that he is not likely

to commit any offence and that he is not likely to commit

any offence while on bail.

(iii) The limitations on granting of bail specified in clause(b) of

sub-section(l) are in addition to the limitations under the

code of criminal procedure, 1973, of any other law for the

time being in force, on granting bail.

Therefore after the amendment, those offences which fall under

section 19, section 24 or section 27-A and also for offences involving

commercial quantity alone come within the purview of section 37 and

116
whose accused who have committed any of these offences are to satisfy

the twin conditions in section 37 to get release on bail. In the light of the

pronouncement of the Hon’ble Supreme Court said that, the amendement

has made it manifestly clear that the other offences including an offence

involving ‘small quantity’ are all bailable and they are to be dealt with

under section 436 as section 37 has no application.

From the analysis of provisions of section 37 of the N.D.P.S. Act

and section 4 and 5 of the Criminal Procedure Code it is clear that except

for offences under sections 19,24, and 27-A of the Act, the provisions for

bail as given in the Criminal Procedure Code will apply. The offences no

doubt are also cognizable and to this extent also the provisions of the Act,

will prevail over the provisions of the Criminal Procedure Code.

Though heading (marginal note) of this section makes a mention of

the offences to be cognizable and non-bailable, there is nothing in the

body of the section to show that all offences under the Act are non-

bailable. Just as, despite mention of the offences being cognizable in the

heading of the section, clause (a) expressly says that every offence under

the Act shall be cognizable, if intention of the legislature had been to

make all the offences under the Act to be non-bailable, there would have

been some provision in the body of the section to show or declare that all

the offences under the Act shall be non-bailable. This could have been

done by inserting the words “and non-bailable” after the word

117
“cognizable” in clause(a) itself, or by enacting a separate clause like

clause (a) regarding the offences under the Act being non-bailable also.

On the point of offence being non-bailable or bailable, all that body of

section says is that no person accused of an offence punishable for a term

of 5 years or more shall be released on bail unless public prosecutor has

been given an opportunity to oppose the application, and if application is

opposed by him, unless the court is satisfied that he is not guilty of such

offence and that he is not likely to commit any offence while on bail, etc.

This section is totally silent regarding offences under the Act which are

punishable with imprisonment for less than 5 year offence under section

26 of the Act is punishable with three years imprisonment.

Under section 27(1 )(a) and (b) of the Act is punishable with 1 year

and six months imprisonment respectively. Offences under sections 46

and 47 are punishable under section 32 with six months imprisonment

and two yests imprisonment respectively. Offence under section 59(1) is

punishable with one year’s imprisonment. Thus, all these offences are

punishable with imprisonment for less than five years and application of

clause(a) of sub-section (1) is not attracted to such offences.

As said above there is nothing in section 37 to show that every

offence under the Act shall be non-bailable. In view of such an omission

in the body of the section, and in view of clause (b) thereof, and this Act
• , • f-

being a law other than Indian Penal Code, question whether offences

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under this Act, which are punishable with imprisonment for less than

five years, such as offences under sections 26, 27, 32, 46, 47, 58, 59(1)

are bailable or non-bailablle will be decided by reference to Part-II of first

schedule to the Code of Criminal Procedure, 1973 which prescribes

classification of offences against laws other than Indian Penal code. As

per this schedule, offences under section 26 of the Act which is

punishable with imprisonment for a term which may extend to three years

would be non-bailable, offences under section 27(1 )(a) and (b) of the Act

which are punishable with imprisonment for one year and six months

respectively would be bailable offences under section 46 and under

section 47 which would be punishable under section 32 with

imprisonment for a term which may extend to six months. Imprisonment

would be considered to be bailable and offence under section 59(1) which

is punishable with imprisonment for one year would also be bailable.

In Peter vs. Sate of Kerala61 a case under section 20(b)(i) of the

Act, it was contended in bail application that since section 37 is

applicable o,nly to cases where the minimum sentence is five years, and as

offence punishable under section 20(b)(i) of the Act is not punishable

with a minimum sentence of five years imprisonment, the offence

punishable under section 20(b)(i) will not attract section 37 of the Act.

1993 Drugs Cases 158.

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 But, the court held that, in Section 37(1 (b) of the Act accused of an

offence punishable for a term of imprisonment of five years or more,

qualifies the word ‘person’, the person should be accused of an offence

punishable for a term of imprisonment of five years or more. Therefore,

the five years is a term of imprisonment. It would be unrealistic to read

omitting the words “Term of imprisonment” to understand “of five years

or more”. Term signifies boundary or limit etc. Evidently therefore, the

five years is the limit not the beginning when the legislature used the

words “term of imprisonment” would show that the five years is the

maximum. Therefore, when Section 37(l)(b) speaks of “an offence

punishable for a term of imprisonment of five years or more, the same

could only mean an offence which is punishable with five years or more,

that is, an offence punishable for a period of five years or more”. When

Section 37(l)(b) of the Act states that an offence punishable for a term of

imprisonment of five years, it is not possible to read the same to mean an

offence punishable for a minimum period of five years. On the other

hand it could only mean an offence punishable, for a period of

imprisonment of five years or more. Therefore, an offence punishable

under section 20(b)(i) of the Act also is taken in by Section 37 of the Act.

While adjudicating an application under section 439 Criminal Procedure

Code for pre-trial release of the accused from jail custody High Court

cannot ignore the mandatory requirements of Section 37 of the Act and

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the conditions governing the grant of bail under the code of Criminal

Procedure. To put it clearly, the Apex Court in State of Madhya Pradesh

vs. Kajad62 explained that -

“The purpose for which the Act was enacted and the menace of

drug trafficking which intends to curtail is evident from its scheme. A

perusal of section 37 of the Act leaves no doubt in the mind of the court

that a person accused of an offence, punishable for a term of

imprisonment of five years or more, shall generally be not released on

bail. Negation of bail is the rule and its grant an exception under sub

clause (ii of CL(b) of Section 37(1). For granting bail the court must, on

the basis of the record produced before it, be satisfied that there are

reasonable grounds for believing that the accused is not guilty of the

offences with which he is charged and further that he is not likely to

commit any offence while on bail. It has further to be noticed that the

conditions for granting the bail, specified in Cl(b) of sub-section (1) of

Section 37 or in addition to the limitations provided under the Code of

Criminal Procedure or any other law for the time being in force regulating

the grant of bail. Liberal approach in the matter of bail under the Act is

uncalled for”.

In Union of India vs Shri Shiv Shanker Kesari,63 the court while

considering the application for bail with reference to Section 37 of the

62 2010 Cri.L.J. 4240 (SC).

121
Act is not called upon to record a finding of not guilty. It is for the

limited purpose essentially confined to the question of releasing the

accused on bail that the court is called upon to see if there are reasonable

grounds for believing that the accused is not guilty and records its

satisfaction about the existence of such rounds. But, the court has not to

consider the matter as if it is pronouncing a judgment of acquittal and

recording a finding of not guilty. Additionally, the court has to record a

finding that while on bail the accused is not likely to commit any offence

and there should also exist some materials to come to such a conclusion.

In the instant case, it appears that there was a statement recorded

under section 67 of the Act. The respondent has taken a stand that the

same was under coercion. The acceptability of such a stand is a matter of

trial. Additionally, the High Court has not indicated any reason as to why

it was of the view that the control and articles were not seized from the

exclusive possession of the accused respondent.

Above being the position, the impugned order is clearly

unsustainable and is set aside. The bail application shall be considered

afresh by the High Court keeping in view the parameters of Section 37 of

the Act.

2008(z) ALT(Crl) 89(SC) = 2008 (4) SCJ 327.

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 In Sayed Abdul Ala vs. Union of India64 it was held that, the

detaining authority should have also informed himself about the

implication of Section 37 of the Act. If the detenu was involved in a

large number of cases and the prosecution was aware of the same, it

would invariably be brought to the notice of the court dealing with the

application of bail filed by the detenu by the public prosecutor. Further

more, the order of the court granting bail would be passed only when the

court dealing there with forms an opinion that there are reasonable

grounds for believing that he is not guilty of such offense that there was

no livelihood to commit any offence while on bail.

In Kanneboina Ramesh and another vs. State of Andhra Pradesh

held that, in the light of the material available on record and is as much as

specific allegation had been made as against the first petitioners -

Accused No.l that 40 Kgs of ganja had been seized from him, unless the

additional conditions specified under section 37 of the Act are satisfied

apart from the provisions for grant of bail under the provisions of the

code, the case of the first petitioner - Accused No.l cannot be

considered.

As far as the second petitioner - Accused No.3 is concerned, since

the allegation is that 15 Kgs of ganja had been seized from he second

64 2008(1) ALT (Crl) 369 (SC) = 2008(2) SCJ 832.

65 2007 (2) ALT (Crl) 490 (AP).

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petitioner - Accused No.3 is as much as Section 37 of the Act as it is,

being not applicable, in the light of the facts and circumstances, the

second petitioner - Accused No.3 be released on bail on condition of the

second petitioner - Accused No.3 furnishing two sureties for a sum of

Rs. 15,000/- each and also personal bond.

The expression “nothing contained in this section” of Section 36-A

(3) postulates that High Court’s bail power is not to be deemed affected

by anything contained in Section 36-A only, the fiction is not meant to be

extended to Section 37 which is an independent provision contemplating

expressly cladding of additional limitations” on bail powers when

exercised in respect of a person who is in confinement after arrest under

section 52 of the Act. Clause (b) of Section 36-A(l) denying expressly in

terms of its provisio to the Magistrate the power to take bail and limiting

his jurisdiction to order detention for specified periods and thereafter for

the accused produced before him to be forwarded to the Special Court

having jurisdiction” in terms of clause (c) the legislature could not have

contemplated to vest that power in the Special Court and through it in the

High Court in terms of sub-section(3). Legislature is supposed to enact

sensibly and in any case it is court’s duty to construe statutory provisions

in such manner as to avoid conflict, chaos and cavil.66

Katana R.P, “Law of Bails, Bonds and Arrest” (2003) p.1073.

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 The Supreme Court in a judgment in Narcotic Control Bureau vs.

Kishan Lai67 had an occasion to consider the scope of granting bail by the

High Court and the effect of limitations placed in Section 37 of NDPS

Act. The . facts in that case were that the accused sought bail on the

ground that the charge-sheet was filed in that case were that the accused

sought bail on the ground that the charge-sheet was filed at a belated

stage and they were entitled to be released on bail as required under

section 167(2) Criminal Procedure Code as well as on the ground of

illness. The bail was granted by the D.B. of Delhi High Court holding

that the limitations placed on the Special Court under section 37(2) of the

NDPS Act cannot be read as fetters on the High Court in exercise of the

powers under Section 439 Criminal Procedure Code for granting bail.

After analyzing the various provisions of NDPS Act, the Supreme Court

has held as under:-

“As already, Section 37 of the NDPS Act starts with a non­

obstinate clause stating that notwithstanding anything contained in the

Code of Criminal Procedure, 1973 no person accused of an offence

prescribed therein shall be released on bail unless the conditions

contained therein are satisfied. Consequently the power to grant bail

under any of the provisions of Criminal Procedure Code should

AIR 1991 SC 558:1991 Cri.LJ. 654.

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necessarily be subject to the conditions mentioned in Section 37 of the

NDPS Act”.

No doubt Section 18 of the Juvenile Justice Act made a general

provision with regard to the right of a Juvenile delinquent to be released

on bail irrespective of the offence committed by him, but the N.D.P.S.

Act is a special provision and in that special statute a further special

provision has been made with regard to the pre-conditions to be satisfied

for an accused being released on bail. Therefore, the said special

provision of the special statute, namely Section 37 of the N.D.P.S. Act,

would override Section 18 of the Juvenile Justice Act and therefore, even

in case of a juvenile delinquent involved in commission of an offence

under N.D.P.S. Act, no bail can be granted until and unless the provisions

of Section 37 of the N.D.P.S. Act are complied with. Then again, no

doubt, the N.D.P.S. Act was enacted earlier in point of time than the

Juvenile Justice Act, but the special provision in relation to the bail by

way of insertion of Section 37 in the N.D.P.S. Act came into the statute

book of the said amendment indicates that the Parliament though it

appropriate to make stringent provision in respect of an accused being

released on bail to meet the challenge arising from drug trafficking.

Therefore, the said latter provision contained in Section 37 of the

N.D.P.S. Act would override the earlier general provision of Section 18

of the Juvenile Justice Act and consequently, a juvenile delinquent being

126
accused of commission of an offence under the N.D.P.S. Act cannot be

released unless the pre-conditions contained IN Section 37 of the

N.D.P.S. Act are complied with. Therefore, court was unable to accept
fro
the contention of the petitioner.

In Anataryani Patra vs. State of Orissa, it was held that, apart from

conclusion that the provisions of Section 37 of the N.D.P.S. Act must be

complied with even in case of a juvenile delinquent accused of an

offences under N.D.P.S. Act, even on a plain interpretation of Section 18

of the Juvenile Justice Act, it would not be appropriate to release a

juvenile delinquent being involved in the commission of an offence under

the N.D.P.S. Act as that would defeat the ends of justice. Thus, judged

from any angle, the petitioner is not entitled to be released on bail.

TERRORISTS AND DISRUPTIVE ACTIVITIES ACT. 1987:

Entire Criminal Procedure Code is not made applicable but some

specific provisions are made applicable and some provisions of the

Criminal Procedure Code with modifications are made applicable.

It is an admitted fact that under Section 9 of the Terrorist Act,

exclusive jurisdiction is conferred upon the Designated Court established

as per provisions of Section 7 of the Terrorist Act to try every offence

punishable under any provision of the Terrorist Act or any rule made

68 Katana R.P, “Law of Bails, Bonds and Arrest” (2003) p. 1074.

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there under. No other court has jurisdiction to deal with or try the person

who is involved in any offence punishable under the ‘Terrorist Act’.

The following provisions of the Terrorist Act would make it clear

that the entire Criminal Procedure Code is not made applicable. Under

Sect5ion 8 of the Terrorist Act a Designated Court is entitled to sit for

any of its-proceedings at any place, other than the ordinary place of its

sitting, in the state in which it is constituted sub-section (2) of Section 9

of the Terrorist Act provides for transfer of case from one Designated

Court to another Designated Court. That power is conferred upon the

Central Government and is to be exercised with the concurrence of the

Chief Justice of India. So, it is clear that the provisions of transfer which

are there in the Criminal Procedure Code would not be applicable under

section 10 of the Terrorist Act.

Whereas, in our country, the rule of law operates, it is incumbent

upon the investigating agency to proceed with its investigation into the

crime with utmost expedition which necessarily implies that the case

against an accused, particularly when he is in custody, should be

submitted to court at the earliest to enable the trial to proceed and

conclude without any undue delay. The fact that now by virtue of the

provisions of Section 20 of the Terrorists & Disruptive Activities

(Prevention) Act, 1987 wherein after referred as Act) the words ’90 days’

in sub-section (2)(a)(i) of Section 167, of the Code of Criminal Procedure

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1973,have been substituted by the words ‘one year’ for the purposes of

this Act, it cannot be taken as a license to the police or the investigating

agency to hold in custody a person accused of an offence under the Act

without trial for a period upto a year by simply putting off filing of the

challan against him for such period. The spirit of the law in bold letters

proclaims that every endeavour should be made by the investigating

agency to complete its task and to submit the case for trial at the earliest.

This being so, it would clearly be open to the court while considering the

prayer for bail by the person detained to see how the investigation is

proceeding. If it was then revealed that the investigating agency was

merely treating it as a means to keep the under-trial in detention without

further ado, the court must forthwith release the person detained, on bail

or otherwise as it deems appropriate. Any impression that the provisions

of the Act permit or sanction detention of an under trial upto a period of

one year without anything more, must be categorically dispelled as being

wholly misconceived and contrary to law.69

In Gursewak Singh vs. State of Punjab,70 it was apparent that no

plausible explanation was forthcoming to account for the state of

investigation being as revealed in the affidavit filed and what was more it

was obvious that there was little livelihood of the challan against the

69 Katana R.P, “Law of Bails, Bonds and Arrest” (2003) p. 1086.

70 1988 Cri.LJ. 1605 (1606) (P&H).

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petitioner being put in court at an early date. This being so the petitioner

was hereby ordered to be released on bail on furnishing bail bonds to the

satisfaction of the Chief Judicial Magistrate.

In the above case, the Counsel for the applicants submitted that

even if an appeal or revision is not maintainable against the order passed

by a Designated Court, yet this court has jurisdiction to entertain an

application under Section 439 of the Criminal Procedure Code for

releasing the accused on bail because there is no provisions under the

Terrorist Act which debars the application of Section 439 of the Criminal

Procedure Code. He further submitted that in any circumstances the High

Court has inherent powers under section 482 of the Criminal Procedure

Code to quash and set aside any illegal or arbitrary order passed by the

Designated Court situated within the territorial jurisdiction of the High

Court and to decide whether prima-facie the provisions of the Terrorist

Act are applicable to the facts of the case.

For this purpose, reliance was placed on the provisions of Section

17 of the Terrorist Act and it was contended that specific provision is

made to the effect that Section 167 of the Criminal Procedure Code with

same modifications, would be applicable to a case involving an offence

punishable under the Terrorist Act.

Further, specific provision is made that Section 438 of the Criminal

Procedure Code for granting anticipatory bail shall not apply while no

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such provision is made that Section 439 will not apply. The learned

counsel further submitted that cell throughout in the Terrorist Act

wherever the legislature wanted to confer powers on the Designated

Court it has been specifically mentioned as “Designated Court”. While

under sub-section (5)(b) of Section 17 the word used is “court”. He,

therefore submitted that the accused against whom allegation for offence

punishable under the Terrorist Act is made, can be released under Section

439 of the Criminal Procedure Code by the High Court or by the Sessions

Court. The counsel emphasized upon sub-section (6) of Section 17

wherein it is provided that limitations on granting bail specified in sub­

section (5) of Section 17 are in addition to the limitations under the Code

of Criminal Procedure or any other law for the time being in force on

granting on bail. He, therefore, submitted that with regard to the bail, the

provisions of Criminal Procedure Code are applicable and this court has

jurisdiction under section 439 or 482 of the Criminal Procedure Code to

release the accused on bail.

Section 15(4) of the Act reads -

“Nothing in Section 438 of the Code shall apply in relation to any case

involving the arrest of any person on an accusation of having committed

scheduled offence in a terrorist affected area”.

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 In Ajit Singh vs. State of Punjab,71 counsel for respondent had

argued that irrespective of the fact that the respondent could not be

allowed anticipatory bail for offence under section 506, IPC and Sections

25/27 Arms Act in view of the provisions contained in Section 15(4) of

the Act, the bail already allowed to him could not be cancelled for the

reason that the Criminal Court had no jurisdiction to review the order

already passed.

An accused who was released on bail and or Section 438 Criminal

Procedure Code can be ordered to be arrested and committed to custody.

Section 439(2), empowers the High Court and the Court of Session to

cancel the bail already allowed to an accused including anticipatory bail.

In Ajit Singh’s case,72 it was held that the High Court has no power to

review or alter its earlier judgment in a Criminal case except to correct a

clerical error.

The contention of the counsel for the accused was that the power of

the High Court to cancel the bail already allowed to the accused under

section 439(2) Criminal Procedure Code can only be exercised when the

accused was found interfering with the course of justice and not on the

ground that the court had no jurisdiction to allow the bail. Section 439(2)

71 (1982) 1 chand LR(Cri) 363 : (1982 CriLJ 1215).

72 1982 Cri.LJ. 1215.

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Criminal Procedure Code empowers the High Court to cancel the bail

already allowed to an accused. The cancellation of bail already allowed

to an accused does involve the review of the earlier order passed.

Cl(b) of Sub-Section(8) of the Section 20 of the Act, which is in

the following terms renders granting of bail almost impossible and thus

runs counter to the basic postulates. Where, the public prosecutor

opposes the application, the court is satisfied that there are reasonable

grounds for believing that he is not guilty of such offence and that he is

not likely to commit any offence while on bail. Thus, Cl.(b) of Section

20(8) not only puts the onus on the accused of proving his innocence in

order to be able to assert his right to be released on bail, but also requires

the court to be further satisfied that when on bail, the accused would not

commit any offence.

Sub-Section (4) of Section 17 of the Terrorist Act provides that the

concept of anticipatory bail is not at all applicable and nothing in Section

438 of the Criminal Procedure Code shall apply in relation to any case

involving the arrest of any person on an accusation of having committed

an offence punishable under the Terrorist Act or any rule may there

under.

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 Sub-section (5) of Section 17 of the Terrorist Act begins with the

non obstinate clause that notwithstanding anything contained in the

Criminal Procedure Code, no person accused of an offence punishable

under the Terrorist Act or any rule made there under shall, if in custody

be released on bail or on his own bond unless -

(a) the public prosecutor has been given an opportunity to oppose the

application for such release; and

(b) where the public prosecutor opposes the application, the court is

satisfied that (i) there are. reasonable grounds for believing that he

is not guilty of such offence and (ii) he is not likely to commit any

offence while on bail.

134