Talab Haji Hussain vs Madhukar Purshottam Mondkarand

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 16 of 1958

Decision Date: 7 February 1958

Coram: P.B. Gajendragadkar, Natwarlal H. Bhagwati, Syed Jaffer Imam

In this case the matter titled Talab Haji Hussain versus Madhukar Purshottam Mondkarand was decided on 7 February 1958 by the Supreme Court of India. The judgment was authored by Justice P B Gajendragadkar and the bench comprised Justice P B Gajendragadkar, Justice Natwarlal H Bhagwati and Justice Syed Jaffer Imam. The reported citations for the decision are 1958 AIR 376 and 1958 SCR 1226. The case concerned the application of the Criminal Law provisions relating to bail cancellation, the inherent power of a High Court, and the procedure for bailable offences under the Code of Criminal Procedure, 1898, particularly sections 426, 496, 497, 498 and 56 1A. The appellant had been charged under section 120 B of the Indian Penal Code and section 167(8)(i) of the Sea Customs Act, 1878, both of which are bailable offences.

The appellant was released on bail by the Chief Presidency Magistrate in Bombay under section 496 of the Code of Criminal Procedure, the bail amount being Rs 75,000 with a matching surety. The complainant subsequently applied for cancellation of that bail, but the magistrate dismissed the application on the ground that section 496 did not confer jurisdiction to cancel bail. The complainant then sought the inherent power of the High Court under section 56 1A of the Code, and the Bombay High Court, after hearing the matter, concluded that it possessed such inherent power and, on the basis of the material before it, cancelled the bail because it was not safe to allow the appellant to remain at large. The High Court’s order was challenged by special leave to appeal before this Court. The appeal was made in Criminal Appeal No 16 of 1958, arising from the High Court’s judgment dated 14 January 1958, which in turn stemmed from the magistrate’s order dated 9 January 1958 in criminal application No 60 of 1958, relating to case No 608/W of 1957. Counsel for the appellant were Purshottam Tricumdas, Rajni Patel and I N Shroff, while counsel for the respondent was K J Khandalwala together with R H Dhebar. The Supreme Court held that although section 496 of the Code entitles a person accused of a bailable offence to be released on bail pending trial, any conduct by the accused after release that is prejudicial to a fair trial results in forfeiture of that right. Such forfeiture may be effected by the High Court’s inherent power under section 56 1A, but the Court emphasized that this power must be exercised sparingly, carefully and only when the specific tests laid down in that provision are satisfied. The Court also distinguished the earlier authority of Lala Jairam Das & Others v King Emperor (1945) L R 72 I A 120. The judgment of the Supreme Court was delivered by Justice Gajendragadkar.

In this case, the Court observed that the offences for which the appellant had been charged were bailable. Accordingly, under section 496 of the Code of Criminal Procedure, the appellant was released on bail of seventy‑five thousand rupees with one surety for an equal amount on 9 December 1957 by the learned Chief Presidency Magistrate at Bombay. On 4 January 1958 the complainant filed an application before the same magistrate seeking cancellation of that bail. The magistrate rejected the application, holding that section 496 conferred no jurisdiction on him to cancel a bail that had been granted under that provision. The complainant then filed a revisional petition before the High Court of Bombay, and subsequently lodged an additional application invoking the High Court’s inherent power under section 561A of the Code of Criminal Procedure. The two judges hearing the matters, Chagla C.J. and Datar J., held that section 561A endowed the High Court with an inherent authority to cancel bail granted to a person accused of a bailable offence, and that in appropriate circumstances such power must be exercised in the interests of justice. After considering the material placed before them, the judges concluded that it would not be safe to allow the appellant to remain at large. Consequently, they allowed the application that invoked the High Court’s inherent power, set aside the bail bond executed by the appellant, and ordered that the appellant be arrested immediately and placed in custody.

The appellant subsequently appealed to this Court by way of special leave. The special leave granted was confined strictly to the question of the construction of section 496 read together with section 561A of the Code of Criminal Procedure. The point of law for determination, therefore, was whether, in a case where a person accused of a bailable offence has been granted bail under section 496, the High Court may, in a proper case, cancel that bail by exercising its inherent power under section 561A. The Court noted that this question was of considerable importance and that its answer would depend on the proper construction of the relevant statutory provisions. The provisions governing bail are located in sections 496 to 498 of the Code of Criminal Procedure. Section 496 deals specifically with persons accused of bailable offences. It provides that when a person charged with the commission of a bailable offence is arrested or detained without warrant by a police officer in charge of a police station, or is brought before a court, and at any time while in the custody of such officer or at any stage of the proceedings before such court a bail is to be granted, that person shall be released on bail. The section further leaves to the discretion of the police officer or the court the power, if they deem it fit, to discharge the accused by having him execute a bond without sureties for his appearance and to forgo taking bail from him.

Section 496 provides that when a person accused of a bailable offence is arrested without a warrant by a police officer, or when such a person is brought before a court, the officer or the court may, at any stage of the proceedings, grant bail and release the accused. The provision further allows the police officer or the court, if it deems appropriate, to accept the accused’s execution of a bond without sureties for his appearance and to dispense with taking bail from him. Section 497 addresses the grant of bail in cases involving non‑bailable offences. Under subsection (1) a person accused of a non‑bailable offence may be released on bail, but such release is barred when reasonable grounds exist to believe that the accused has committed an offence punishable with death or life imprisonment. Subsection (2) deals with situations where the officer or the court finds no reasonable grounds to believe that the accused has committed a non‑bailable offence, yet there are sufficient grounds to continue investigating the accusation. In those circumstances the accused, while the enquiry is pending, may be released either on bail or, at the discretion of the officer or the court, upon executing a bond without sureties for his appearance, as prescribed later in the Code. Subsection (3) requires that whenever jurisdiction under subsection (2) is exercised in favour of an accused, the reasons for exercising such jurisdiction must be recorded in writing. Subsection (3A), inserted in 1955, applies where the trial of a person accused of any non‑bailable offence is not concluded within sixty days from the first day fixed for taking evidence. If the accused remains in custody for the entire sixty‑day period, he shall be released on bail unless the magistrate records written reasons for refusing bail. The final subsection of Section 497 confers on the High Court, the Court of Session, and any other court that has itself released a person on bail, the authority to direct that a person who has been released under any provision of this section be arrested and committed to custody. Section 498(1) gives the High Court or the Court of Session the power to order admission to bail or reduction of bail in all cases where bail is permissible under Sections 496 and 497, regardless of whether an appeal against a conviction is pending. Subsection (2) of Section 498 empowers the High Court or the Court of Session to cause any person who has been admitted to bail under subsection (1) to be arrested and committed to custody. Finally, Section 426 of the Code, which also merits reference, deals with the power to grant bail to persons who have been convicted of non‑bailable offences, provided that such convicted persons satisfy the conditions laid down by the court.

The Court explained that section 426(2A), which was inserted into the Code in 1955, authorised a person who intended to lodge an appeal against a conviction order to be released on bail. A comparable authority was granted to the High Court by sub‑section (2B) of section 426, on the condition that the High Court was satisfied that the convicted individual had obtained special leave to appeal to the Supreme Court against any sentence that the High Court had imposed or affirmed. Furthermore, sub‑section (3) of the same provision stipulated that if an appellant who had been released on bail under either sub‑section (2) or sub‑section (2B) was later sentenced to imprisonment, the period of his release on bail would be disregarded when calculating the length of the sentence to which he was finally committed. The Court summarized that this arrangement formed the essential framework of the Code concerning bail, delineating how bail could be granted, continued, or excluded in the context of appeals and subsequent sentencing.

The Court then turned to section 496, observing that this section unequivocally conferred upon a person accused of a bailable offence the right to obtain bail while the trial was pending. The Court noted that as soon as it became apparent that the accused was ready to furnish bail, the police officer or the judicial officer before whom the bail was offered was obligated to release the accused on such bail terms that appeared reasonable to the officer or the court. The Court further stated that the officer or the court could, in lieu of taking actual bail, discharge the accused on execution of his bond as provided by the section. By contrast, the position of individuals charged with non‑bailable offences was described as fundamentally different. Although recent amendments to section 497 had introduced definite improvements favouring accused persons in non‑bailable cases, the Court affirmed that the grant of bail in those instances remained largely discretionary for the concerned authorities. The Court explained that the distinction between bailable and non‑bailable offences could be understood on the basis that bailable offences are generally perceived as less serious than non‑bailable offences, yet the Court recognised that certain statutory provisions, such as sections 477, 477A, 475 and 506 of the Indian Penal Code, classified offences as bailable, whereas section 379 listed an offence as non‑bailable, making the classification appear inconsistent. Nevertheless, the Court acknowledged that section 496 expressly recognised the right of a person accused of a bailable offence to be released on bail, a point heavily relied upon by counsel for the appellant. Counsel also highlighted that while the legislature had expressly empowered certain courts to cancel bail granted to persons accused of non‑bailable offences under section 497(5), no comparable power was conferred for bailable offences. The Court observed that, had the legislature intended to grant such a power, it could have easily introduced a suitable sub‑section under section 496, and the absence of such a provision suggested a deliberate legislative choice.

The Court observed that the omission of a power to cancel bail for bailable offences in the statute, as argued by Shri Parushottam, was not an accidental oversight but a deliberate legislative choice; consequently, it would be neither legitimate nor reasonable to confer upon the High Courts the authority to cancel such bail under section 561A. This point required careful examination in the present matter. Section 561A was inserted into the Code in the year 1923 with the specific intention of preserving the inherent jurisdiction of the High Courts. The provision states that nothing contained in the Code shall be construed as limiting or affecting the High Court’s inherent power to issue any order that may be necessary to give effect to an order under the Code, to prevent the abuse of any court’s process, or otherwise to secure the ends of justice. The Court noted that, prior to the enactment of this section, certain judicial decisions had expressed uncertainty regarding the existence of such inherent power in the High Courts. This uncertainty prompted the legislature to enact section 561A in order to make clear that the provisions of the Code were not meant to curtail the High Courts’ inherent authority as articulated in that section.

The Court further explained that the inherent power saved by section 561A may be exercised only for one of the three purposes expressly mentioned in the provision. It cannot be invoked in respect of any matter that is already governed by a specific provision of the Code, nor can it be employed if its exercise would be inconsistent with any such specific provision. Accordingly, the power under section 561A becomes operative only when the matter before the court is not covered by any explicit provision of the Code, and even then the exercise of the power must pursue one of the three stated purposes. The Court recognised that, while the legislature strives to anticipate all possible procedural situations, it is impossible for any procedural enactment, however carefully drafted, to address every conceivable future scenario. Gaps, or lacunae, inevitably arise in procedural law, and it is precisely to fill those gaps and to manage cases that fall within them that the law acknowledges the existence of inherent powers in courts. The Court pointed out that section 561A specifically recognises the inherent power of the High Courts alone, and that this power is subject to definite safeguards. The High Court may exercise its inherent authority only when it is satisfied that an order made under the Code would be rendered ineffective, that the process of any court would be abused, or that the ends of justice would otherwise be compromised. In this manner, there can be no dispute about the scope and nature of the High Courts’ inherent power.

In describing the role of the High Courts and the scope of their inherent authority, the judgment first observed that the chief purpose of criminal procedure was to guarantee a fair trial for every accused individual. It noted that each criminal proceeding commenced with the presumption of innocence in favour of the accused, and that the provisions of the Code were deliberately drafted so that this presumption would dominate the trial from its inception to its conclusion. However, the judgment explained, a fair trial pursued two complementary goals: it had to be fair to the accused and at the same time fair to the prosecution. Accordingly, the standard of fairness was to be assessed from this dual perspective. The Court stressed that, for a trial to be truly fair, witnesses must be permitted to give their testimony without any inducement or intimidation from either the prosecution or the defence. It further warned that the prosecution must never conduct the trial in a manner that would result in the conviction of an innocent person, just as the accused must not hamper the proceedings in a way that would lead to the acquittal of a person who is actually guilty. The overarching objectives of a criminal trial were identified as the acquittal of the innocent and the conviction of the guilty, and the Court held that there could be no doubt that any conduct by an accused that threatened to undermine these objectives provided a basis for the High Court to resort to its inherent power in order to protect the ends of justice. The judgment emphasized that the most critical element of justice was the uninterrupted advancement of a fair trial, and that this very continuity justified invoking the inherent powers of the High Courts whenever the prosecution alleged that an accused was obstructing the trial by suborning or intimidating witnesses. In a similar vein, the Court observed that when an accused who had obtained bail fled the jurisdiction or attempted to escape to a foreign country, such conduct also warranted the use of inherent power to compel the accused to submit to the trial and to prevent him from evading the consequences of the proceedings by exploiting his bail status. The Court summed up that, where the actions of a bail‑released accused jeopardised the progress of a fair trial and no other effective remedy was available, the High Court could legitimately exercise its inherent authority. It further noted that for non‑bailable offences there was ordinarily no need to invoke this power because section 497(5) of the Code expressly dealt with those situations. Finally, the Court identified the precise issue it needed to resolve: whether the exercise of the inherent power under section 561A of the Code against persons accused of bailable offences who had been released on bail was consistent with the provisions of section 496 of the Code of Criminal Procedure.

In this matter, the Court examined whether the exercise of the inherent power under section 561A of the Code of Criminal Procedure, when applied to persons accused of bailable offences who have already been released on bail, conflicted with or stood opposed to the provisions of section 496 of the same Code. The counsel for the appellant argued that the provisions of section 496 were plainly inconsistent with the exercise of the inherent power under section 561A against the appellant in the present case. He further asserted that, notwithstanding the order issued by the High Court, the appellant would remain entitled to approach the trial court for bail again and that the trial court would be bound to grant bail because the right to be released on bail recognized by section 496 was an absolute and indefeasible right. According to this line of reasoning, even after the High Court’s order, that right would continue to be available to the appellant. The counsel contended that, if this were the true legal position, the order passed under section 561A would become ineffective, thereby demonstrating a direct conflict between the exercise of the inherent power and the provisions of section 496.

The Court noted that, while the argument appeared attractive at first glance, a careful scrutiny of section 496 revealed that no actual conflict existed between its provisions and the jurisdiction conferred by section 561A. The Court explained that when the High Court exercises the power under section 561A, the bail that had been offered by the accused and accepted by the trial court is cancelled, and the accused is ordered to be arrested immediately and committed to custody. In effect, an order made under section 561A produces the same result as an order made under sections 497(5) and 498(2): not only is the bail withdrawn, but the accused is also ordered to be taken into custody. The Court emphasized that the order committing the accused to custody is a judicial order issued by a criminal court of competent jurisdiction. The subsequent commitment to custody does not arise because the accused is alleged to have committed a bailable offence; rather, it stems from a judicial finding that the accused has forfeited his bail and that his conduct, pending trial, shows he cannot be allowed to remain at large.

The Court further observed that once a person is placed in custody by such a judicial order, he cannot rely on the rights granted by section 496, since that provision becomes inapplicable to his situation. The Court acknowledged that the Code does not contain a specific provision expressly dealing with the cancellation of a bond and the re‑arrest of a person accused of a bailable offence. However, this absence does not imply that section 496 confers an unconditional right to bail on an accused who has been shown to act in a manner subversive of a fair trial. Consequently, the Court concluded that the exercise of inherent power under section 561A does not stand at odds with section 496, and the order under section 561A remains effective.

The Court observed that section 496 should not be interpreted as giving an accused person of a bailable offence an unconditional, absolute and irrevocable entitlement to bail. In examining this provision, the Court found it necessary to consider the effect of section 498. Section 498(1) permits the High Court or the Court of Sessions, even in cases involving bailable offences, to either admit the accused to bail or to reduce the amount of bail that the authorities have fixed under section 496. The argument advanced by the counsel for the respondent that the operative part of section 498(1) does not apply to bailable offences was rejected. The Court held unequivocally that subsection 1 deals with both bailable and non‑bailable offences. Consequently, where the bail amount fixed pursuant to section 496 is unreasonably high, an accused person may approach the High Court or the Court of Sessions for a reduction of that amount. Likewise, an accused of a bailable offence may move the High Court or the Court of Sessions for release on bail; the court may then either order a reduction of the bail amount or admit the accused to bail. Thus, the statutory scheme provides a mechanism for judicial intervention even when the offence is bailable.

When an accused person of a bailable offence is admitted to bail by an order of the High Court or the Court of Sessions under section 498(1), the provisions of subsection 2 become applicable. Subsection 2 expressly empowers the High Court or the Court of Sessions to cancel the bail that it has granted and to order the arrest and custody of the accused. This subsection was inserted into the Code in 1955, demonstrating the legislature’s intention to give the higher courts the authority to withdraw bail for bailable offences when the accused, having been admitted to bail, engages in conduct that undermines the fairness of the trial. Accordingly, for the class of cases falling under section 498(1), even after bail has been granted, the courts possess a clear power to arrest the accused and commit him to custody. The Court therefore concluded that the right of a person accused of a bailable offence to be released on bail can indeed be forfeited if the accused’s subsequent conduct is prejudicial to a fair trial. The Court also noted that, prior to the enactment of subsection 2, judicial opinion already accepted that bail granted under section 498(1) could be cancelled and the accused could be arrested, reinforcing the principle that the power to withdraw bail was not inconsistent with the earlier statutory framework.

In this case, the Court noted that an accused person could be ordered to be arrested and committed to custody under the provisions of section 561A of the Code, as illustrated by the decisions in Mirza Mohammad Ibrahim v. Emperor (1), Seoti v. Rex (2), Bachchu Lal v. State (3), Muunshi Singh v. State (4) and The Crown Prosecutor, Madras v. Krishnan (5). These authorities demonstrate that the exercise of the inherent power to cancel bail under section 561A was not regarded as inconsistent with the provisions of section 498(1) of the Code. Although all of the cited cases involved persons charged with non‑bailable offences, it is significant that the provisions of section 497(5) did not apply to those cases and the appropriate orders were issued on the basis of the purported exercise of the inherent power under section 561A. On principle, therefore, the decisions proceed on the assumption – a view the Court concurs with – that the exercise of the inherent power in that regard was not inconsistent with the provisions of section 498 as they then stood. The Court then examined whether, in principle, a distinction could be drawn between bailable and non‑bailable offences with regard to the effect of prejudicial conduct by an accused after release on bail. As already observed, if the main objective of criminal procedure is to ensure a fair trial, any threat to the continuance of a fair trial must be arrested immediately and the smooth progress of the trial must be safeguarded; this may be achieved, if necessary, by the exercise of the inherent power. The classification of offences into bailable and non‑bailable, which forms the basis for different statutory provisions concerning the grant of bail, does not, in the Court’s opinion, have any material bearing on dealing with the effect of subsequent conduct of an accused on the continuance of a fair trial. When an accused, by his conduct, places the fair trial in jeopardy, the primary and paramount duty of the criminal courts is to remove that risk so that the trial may proceed smoothly without interruption or obstruction, and this duty is equally applicable in cases of both bailable and non‑bailable offences. Accordingly, the Court finds no difficulty in holding that if, by his subsequent conduct, a person accused of a bailable offence forfeits his right to be released on bail, that forfeiture must be effected by invoking the inherent power of the High Court under section 561A. The failure of the legislature to make a specific provision for that circumstance is regarded as an oversight or inadvertence rather than a deliberate omission. If the appellant’s contention were accepted, it would lead to absurd results; the argument advanced was that a person accused of a bailable offence possesses an unqualified right to bail that cannot be withdrawn even when he acts to obstruct or defeat a fair trial.

In this case, the Court observed that the argument advanced by the respondent's counsel—that a person accused of a bailable offence possessed an absolute right to bail which could not be withdrawn even if the accused deliberately obstructed or attempted to defeat a fair trial—was untenable. The Court noted that the respondent’s counsel had even suggested that, although the accused’s later misconduct might give rise to fresh charges under the Indian Penal Code, such misconduct could not justify a re‑arrest. The Court found that this view did not correspond with the proper legal position when the relevant provisions of the Code of Criminal Procedure relating to bail were read together with section 561A. The Court then turned to the decision of the Privy Council in Lala Jairam Das & Others v King Emperor, which the respondent’s counsel had relied upon strongly. That Privy Council decision held that the Code of Criminal Procedure granted no authority to a High Court to grant bail to a person who had already been convicted and sentenced, even where special leave to appeal had been granted by the Crown. The Court recalled that divergent opinions had been expressed by Indian High Courts on whether a High Court could grant bail to a convicted person who had obtained special leave to appeal to the Privy Council, and that Lord Russell of Killowen, delivering the Board’s judgment in the Lala Jairam Das case, examined these views and the overall scheme of the Code concerning bail. The Court emphasized that, although the Privy Council decision did not apply directly to the facts before it, the respondent’s counsel had drawn upon certain observations made in that judgment. In particular, the judgment stated that Chapter XXXIX of the Code together with section 426 was intended to provide a complete and exhaustive statement of the powers of a High Court in India to grant bail, thereby excluding any additional inherent power of the High Court in relation to bail. The Court further explained that the Privy Council judges expressed the view, consistent with the High Court of Justice in England, that Indian High Courts did not possess an inherent power to grant bail to a convicted person. The Court observed that the Privy Council judges were not asked to consider whether the High Court’s inherent power under section 561A could be used to cancel bail, because that question did not arise in the case before them. Nevertheless, when the Privy Council examined whether an inherent power could be exercised to grant bail to a convicted person, it referred to section 561A and concluded that such a power could not be properly attributed to the High Courts, since exercising it would interfere with the execution of the sentence and, if the appeal failed, would defeat the ends of justice.

The Court observed that allowing bail to a person who had already been convicted would interfere with the serving of the sentence and, if the appeal were to fail, would defeat the ends of justice. It further noted that permitting bail in such circumstances would amount to an alteration of the High Court’s judgment, an act prohibited by section 369 of the Code. In examining section 561A, the Court referred to the decision reported in (1945) L.R. 72 I.A. 120, 132, and concluded that the power to grant bail to a convicted person does not fit within the scheme of Chapter XXXIX of the Code read together with section 561A. In the Court’s opinion, neither that decision nor the observations relied upon by Shri Purushottam provide any assistance for deciding the point raised by this appeal. The Court added that, as a result of observations made by the Privy Council in the earlier case, section 426 of the Code was amended in 1945, conferring on appropriate courts the power either to suspend a sentence or to grant bail as mentioned in the several subsections of section 426. Accordingly, sections 426(2A) and 426(2B) now deal with the subject of bail, even though the main provision lies in Chapter XXXI, which deals with appeals, references and revisions. The Court therefore held that the view taken by the Bombay High Court regarding its inherent power to act in the present case under section 561A was correct and must be confirmed. It emphasized that the inherent power conferred on High Courts by section 561A must be exercised sparingly, carefully and with caution, and only where such exercise is justified by the tests specifically laid down in the section itself. The Court stressed that procedure, whether criminal or civil, must serve the higher purpose of justice, and that only when the ends of justice are put in jeopardy by the conduct of the accused should the inherent power be invoked in cases like the present. As a result, the appeal failed and was dismissed.