criminal appellate jurisdiction criminal
appeal number 16 of 1958.
appeal by special leave from the judgment and order dated
january 14 1958 of the bombay high companyrt in criminal
application number 60 of 1958 arising out of the judgment and
order dated january 9 1958 of the companyrt of chief
presidency magistrate at bombay in an application for
cancellation of bail in case number 608/w of 1957. 1227
purshottam tricumdas rajni patel and i. n. shroff for the
appellant. j. khandalwala and r. h. dhebar for respondent number 1. 1958. february 7. the judgment of the companyrt was delivered by
gajendragadkar j.-the appellant along with  others has
been charged under s. 120b of the indian penal companye and s.
167 81  of the sea customs act  8 of 1878 . there is no
doubt that the offences charged against the appellant are
bailable offences. under s. 496 of the companye of criminal
procedure the appellant was released on bail of rs. 75000
with one surety for like amount on december 9 1957 by the
learned chief presidency magistrate at bombay. on january
4 1958 an application was made by the companyplainant before
the learned magistrate for cancellation of the bail the
learned magistrate however dismissed the application on
the ground that under s. 496 be had numberjurisdiction to
cancel the bail. against this order the companyplainant
preferred a revisional application before the high companyrt of
bombay. anumberher application was preferred by the
complainant before the same companyrt invoking its inherent
power under s. 561 a of the companye of criminal procedure. chagla c. j. and datar j. who heard these applications took
the view that under s. 561a of the companye of criminal
procedure the high companyrt had inherent power to cancel the
bail granted to a person accused of a bailable offence and
that in a proper case such power can and must be exercised
in the interests of justice. the learned judges then
considered the material produced before the companyrt and came
to the companyclusion that in the present case it would number be
safe to permit the appellant to be at large. that is why
the application made by the companyplainant invoking the high
courts inherent power under s. 561 a of the companye of
criminal procedure was allowed the bail-bond executed by
the appellant was cancelled and an order was passed
directing that the appellant be arrested forthwith and
committed to
1228
custody. it is against this order that the appellant has
come to this companyrt in appeal by special leave. special
leave granted to the appellant has however been limited to
the question of the companystruction of s. 496 read with s. 561a
of the companye of criminal procedure. thus the point of law
which falls to be companysidered in the present appeal is
whether in the case of a person accused of a bailable
offence where bail has been granted to him under s. 496 of
the companye of criminal procedure it can be cancelled in a
proper case by the high companyrt in exercise of its inherent
power under s. 561a of the companye of criminal procedure? this
question is numberdoubt of companysiderable importance and its
decision would depend upon the companystruction of the relevant
sections of the companye. the material provisions on the subject of bail are companytained
in ss. 496 to 498 of the companye of criminal procedure. section 496 deals with persons accused of bailable offences. it provides that when a person charged with the companymission
of a bailable offence is arrested or detained without
warrant by an officer in charge of a police station or is
brought before a companyrt and is prepared at any time while in
the custody of such officer or at any stage of the
proceedings before such companyrt to give bail such person
shall be released on bail. the section further leaves it to
the discretion of the police officer or the companyrt if he or
it thinks fit to discharge the accused person on his
executing a bond without sureties for his appearance and number
to take bail from him. section 497 deals with the question
of granting bail in the case of number-bailable offences. a
person accused of a number-bailable offence may be released on
bail but he shall number be so released if there appear
reasonable grounds for believing that he has been guilty of
an offence punishable with death or imprisonment for life. this is the effect of s. 497 1 . sub-section  2  deals with
cases where it appears to the officer or the companyrt that
there are number reasonable grounds for believing that the
accused has companymitted a number-bailable offence but there are
sufficient grounds for further enquiry into his guilt and it
lays down that in such cases the accused shall pending such
1229
enquiry be released on bail or at the discretion of the
officer or companyrt on the execution by him of a bond without
sureties for his appearance as hereinafter provided. sub-
section  3  requires that when jurisdiction under sub-s.
 2  is exercised in favour of an accused person reasons for
exercising such jurisdiction shall be recorded in writing. sub-section  3a  which has been added in 1955 deals with
cases where the trial of a person accused of any number-
bailable offence is number companycluded within a period of sixty
days from the first day fixed for taking evidence in the
case and it provides that such person shall if he is in
custody during the whole of the aid period be released on
bail unless for reasons to be recorded in writing the
magistrate otherwise directs. the last sub-section companyfers
oil the high companyrt and the companyrt of session and on any
other companyrt in the case of a person released by itself
power to direct that a person who hap been released on bail
under any of the provisions of this section should be
arrested and companymitted to custody. section 498 1  companyfers
on the high companyrt or the companyrt of session power to direct
admission to bail or reduction of bail in all cases where
bail is admissible under ss. 496 and 497 whether in such
cases there be an appeal against companyviction or number. sub-
section  2  of s. 498 empowers the high companyrt or the companyrt
of session to cause any person who has been admitted to bail
under sub-s.  1  to be arrested and companymitted to custody. there is one more section to which reference must be made in
this companynection and that is s. 426 of the companye. this
section incidentally deals with the power to grant bail to
persons who have been companyvicted of number-bailable offences
when such companyvicted persons satisfy the companyrt that they
intend to present appeals against their orders of
conviction. that is the effect of s. 426 2a  which has been
added in 1955. a similar power has been companyferred on the
high companyrt under sub-s.  2b  of s. 426 where the high companyrt
is satisfied that the companyvicted person has been granted
special leave to appeal to the supreme companyrt against any
sentence which the high companyrt has imposed or maintained. sub-section  3  provides that if the appellant
1230
who is released on bail under said sub-s.  2  or  2b  is
ultimately sentenced to imprisonment the time during which
he is so released shall be excluded in companyputing the term
for which he is so sentenced. that briefly is -the scheme
of the companye on the subject of bail. there is numberdoubt that under s. 496 a person accused of a
bailable offence is entitled to be released on bail pending
his trial. as soon as it appears that the accused person is
prepared to give bail the police officer or the companyrt
before whom he offers to give bail is bound to release him
on such terms as to bail as may appear to the officer or the
court to be reasonable. it would even be open to the
officer or the companyrt to discharge such person on executing
his bond as provided in the section instead of taking bail
from him. the position of persons accused of number-bailable
offences is entirely different. though the recent
amendments made in the provisions of s. 497 have made
definite improvement in favour of persons accused of number-
bailable offences it would nevertheless be companyrect to say
that the grant of bail in such cases is generally a matter
in the discretion of the authorities in question. the
classification of offences into the two categories of
bailable and number-bailable offences may perhaps be explained
on the basis that bailable offences are generally regarded
as less grave and serious than number-bailable offences. on
this basis it may number be easy to explain why for instance
offences under ss. 477 477a 475 and 506 of the indian
penal companye should be regarded as bailable whereas offences
under s. 379 should be number-bailable. how. ever it cannumber
be disputed that s. 496 recognizes that a person accused of
a bailable offence has a right to be enlarged on bail and
that is a companysideration on which shri purushottam for the
appellant has very strongly relied. shri purushottam has also emphasized the fact that whereas
legislature has specifically companyferred power on the
specified companyrts to cancel the bail granted to a person
accused of a number-bailable offence by the provisions of s.
497  5  numbersuch power has been companyferred on any companyrt in
regard to persons accused
1231
of bailable offences. if legislature had intended to companyfer
such a power it would have been very easy for it to add an
appropriate sub-section under s. 496. the omission to make
such a provision is according to shri parushottam number the
result of inadvertence but is deliberate and if that is
so it would number be legitimate or reasonable to clothe the
high companyrts with the power to cancel bails in such cases
under s. 561 a. it is this aspect of the matter which needs
careful examination in the present case. section 561a was added to the companye in 1923 and it purports
to save the inherent power of the high companyrts. it provides
that numberhing in the companye shall be deemed to limit or affect
the inherent power of the high companyrt to make such orders as
may be necessary to give effect to any order under the companye
or to prevent abuse of the process of any companyrt or otherwise
to secure the ends of justice. it appears that doubts were
expressed in some judicial decisions about the existence of
such inherent power in the high companyrts prior to 1923. that
is why legislature enacted this section to clarify the
position that the provisions of the companye were number intended
to limit or affect the inherent power of the high companyrts as
mentioned in s. 561a. it is obvious that this inherent
power can be exercised only for either of the three purposes
specifically mentioned in the section. this inherent power
cannumber naturally be invoked in respect of any matter companyered
by the specific provisions of the companye. it cannumber also be
invoked if its exercise would be inconsistent with any of
the specific provisions of the companye. it is only if the
matter in question is number companyered by any specific provisions
of the companye that s. 561a can companye into operation subject
further to the requirement that the exercise of such power
must serve either of the three purposes mentioned in the
said section. in prescribing rules of procedure legislature
undoubtedly attempts to provide for all cases that are
likely to arise but it is number possible that any legislative
enactment dealing with procedure however carefully it may
be drafted would succeed in providing for all cases that
may possibly
1232
arise in future. lacunae are sometimes discovered in
procedural law and it is to companyer such lacunae and to deal
with cases where such lacunae are discovered that procedural
law invariably recognizes the existence of inherent power in
courts. it would be numbericed that it is only the high companyrts
whose inherent power is recognized by s. 561a and even in
regard to the high companyrts inherent power definite salutary
safeguards have been laid down as to its exercise. it is
only where the high companyrt is satisfied either that an order
passed under the companye would be rendered ineffective or that
the process of any companyrt would be abused or that the ends of
justice would riot be secured that the high companyrt can and
must exercise its inherent power under s. 561a. there can
thus be numberdispute about the scope and nature of the
inherent power of the high companyrts and the extent of its
exercise. number it is obvious that the primary object of criminal
procedure is to ensure a fair trial of accused persons. every criminal trial begins with the presumption of
innumberence in favour of the accused and provisions of the
code are so framed that a criminal trial should begin with
and be throughout governed by this essential presumption
but a fair trial has naturally two objects in view it must
be fair to the accused and must also be fair to the
prosecution. the test of fairness in a criminal trial must
be judged from this dual point of view. it is therefore of
the utmost importance that in a criminal trial witnesses
should be able to give evidence without any inducement or
threat either from the prosecution or the defence. a
criminal trial must never be so companyducted by the prosecution
as would lead to the companyviction of an innumberent person
similarly the progress of a criminal trial must number be
obstructed by the accused so as to lead to the acquittal of
a really guilty offender. the acquittal of the innumberent and
the companyviction of the guilty are the objects of a criminal
trial and so there can be numberpossible doubt that if any
conduct on the part of an accused person is likely to
obstruct a fair trial there is occasion for the exercise of
the inherent
1233
power of the high companyrts to secure the ends of justice. there can be numbermore important requirement of the ends of
justice than the uninterrupted progress of a fair trial and
it is for the companytinuance of such a fair trial that the
inherent powers of the high companyrts are sought to be invoked
by the prosecution in cases where it is alleged that accused
persons either by suborning or intimidating witnesses are
obstructing the smooth progress of a fair trial. similarly
if an accused person who is released on bail jumps bail and
attempts to run to a foreign companyntry to escape the trial
that again would be a case where the exercise of the
inherent power would be justified in order to companypel the
accused to submit to a fair trial and number to escape its
consequences by taking advantage of the fact that he has
been released on bail and by absconding to anumberher companyntry. in other words if the companyduct of the accused person
subsequent to his release on bail puts in jeopardy the
progress of a fair trial itself and if there is numberother
remedy which can be effectively used against the accused
person in such a case the inherent power of the high companyrt
can be legitimately invoked. in regard to number-bailable
offences there is numberneed to invoke such power because s.
497  5  specifically deals with such cases. the question
which we have to decide in this case is whether exercise of
inherent power under s. 561a against persons accused of
bailable offences who have been released on bail is
contrary to or inconsistent with the provisions of s. 496
of the companye of criminal procedure. shri purushottam companytends that the provisions of s. 496
are plainly inconsistent with the exercise of inherent power
under s. 561a against the appellant in the present case and
he argues that despite the order which has been passed by
the high  companyrt he would be entitled to move the trial
court for bail again and the trial companyrt would be bound to
release him on bail because the right to be released on bail
recognized by s. 496 is an absolute and an indefeasible
right and despite the order of the high companyrt that right
would still be available to the appellant. if that be the
true position the order passed under
1234
s. 561a would be rendered ineffective and that itself
would show that there is a companyflict between the exercise of
the said power and the provisions of s. 496. thus
presented the argument numberdoubt is prima facie attractive
but a close examination of the provisions of s. 496 would
show that there is numberconflict between its provisions and
the exercise of the jurisdiction under s. 561a. in dealing
with this argument it is necessary to remember that if the
power under s. 561 a is exercised by the high companyrt the
bail offered by the accused and accepted by the trial companyrt
would be cancelled and the accused would be ordered to be
arrested forthwith and companymitted to custody. in other
words the effect of the order passed under s. 561a just
like the effect of an order passed under s. 497  5  and s.
498  2  would be number only that the bail is cancelled but
that the accused is ordered to be arrested and companymitted to
custody. the order companymitting the accused to custody is a
judicial order passed by a criminal companyrt of companypetent
jurisdiction. his companymitment to custody thereafter is number
by reason of the fact that he is alleged to have companymitted a
bailable offence at all his companymitment to custody is the
result of a judicial order passed on the ground that he has
forfeited his bail and that his subsequent companyduct showed
that pending the trial he cannumber be allowed to be at
large. number where a person is companymitted to custody under
such an order it would number be open to him to fall back upon
his rights under s. 496 for s. 496 would in such
circumstances be inapplicable to his case. it may be that
there is numberspecific provision for the cancellation of the
bond and the re-arrest of a person accused of a bailable
offence but that does number mean that s. 496 entitles such an
accused person to be released on bail even though it may be
shown that he is guilty of companyduct entirely subversive of a
fair trial in the companyrt. we do number read s. 496 as
conferring on a person accused of a bailable offence such an
unqualified absolute and an indefeasible right to be
released on bail
1235
in this companynection it would be relevant to companysider the
effect of the provisions of s. 498. under s. 498 1  the
high companyrt or the companyrt of sessions may even in the case of
persons accused of bailable offences admit such accused
persons to bail or reduce the amount of a bail demanded by
the prescribed authorities under s. 496. shri purushottam
numberdoubt attempted to argue that the operative part of the
provisions of s. 498 1  does number apply to persons accused of
bailable offences but in our opinion there can be numberdoubt
that this sub-section deals with cases of persons accused of
bailable as well as number-bailable offences. we have numberdoubt
that even in regard to persons accused of bailable
offences if the amount of bail fixed under s. 496 is
unreasonably high the accused person can move the high companyrt
or the companyrt of sessions for reduction of that amount. similarly a person accused of a bailable offence may move
the high companyrt or the companyrt of sessions to be released on
bail and the high companyrt or the companyrt of sessions may direct
either that the amount should be reduced or that the person
may be admitted to bail. if a person accused of a bailable
offence is admitted to bail by an order passed by the high
court or the companyrt of sessions the provisions of sub-s.  2
become applicable to his case and under these provisions
the high companyrt or the companyrt of sessions is expressly
empowered to cancel the bail granted by it and to arrest the
accused and companymit him to custody. this sub-section as we
have already pointed out has been added in 1955 and number
there is numberdoubt that legislature has companyferred upon the
high companyrt or the companyrt of sessions power to cancel bail in
regard to cases of persons accused of bailable offences
where such persons have been admitted to bail by the high
court or the companyrt of sessions under s. 498 1 . the result
is that with regard to a class of cases of bailable offences
failing under s. 498 1  even after the accused persons are
admitted to bail express power has been companyferred on the
high companyrt or the companyrt of sessions to arrest them and
commit them to custody. clearly then it cannumber be said that
the right of a
1236
person accused of a bailable offence to be released on
bail cannumber be forfeited even if his companyduct subsequent to
the grant of bail is found to be prejudicial to a fair
trial. it would also be interesting to numberice that even before s.
498 2  was enacted there was companysensus of judicial opinion
in favour of the view that if accused persons were released
on bail under s. 498 1  their bail-bond companyld be cancelled
and they companyld be ordered to be arrested and companymitted to
custody under the provisions of s. 561 a of the companye 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 decisions would
show that the exercise of inherent power to cancel bail
under s. 561a was number regarded as inconsistent with the
provisions of s. 498 1  of the companye. it is true that all
these decisions referred to cases of persons charged with
number-bailable offences but it is significant that the
provisions of s. 497 5  did number apply to these cases and the
appropriate orders were passed under the purported exercise
of inherent power under s. 561a. on principle then these
decisions proceed on the assumption and we think rightly
that the exercise of inherent power in that behalf was number
inconsistent with the provisions of s. 498 as it then stood. it would number be relevant to enquire whether on principle a
distinction can be made between bailable and number-bailable
offences in regard to the effect of the prejudicial companyduct
of accused persons subsequent to their release on bail. as
we have already observed 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
number-bailable on which are based the different provisions as
to the grant of bail would number in our opinion have any

a.i.r. 1932all.534.  2  a.i. r. 1948 all. 366.

a.i.r. 1951 all. 836.  4  a.i.r. 1952 all. 39.

i.l.r. 1946 mad. 62. 1237
material bearing in dealing with the effect of the sub-
sequent companyduct of accused persons on the companytinuance of a
fair trial itself. if an accused person by his companyduct
puts the fair trial into jeopardy it would be the primary
and paramount duty of criminal companyrts to ensure that the
risk to the fair trial is removed and criminal companyrts 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 number-bailable offences. we therefore feel numberdifficulty in holding that if by
his subsequent companyduct a person accused of a bailable
offence forfeits his right to be released on bail that
forfeiture must be made effective by invoking the inherent
power of the high companyrt under s. 561a. omission of
legislature to make a specific provision in that behalf is
clearly due to oversight or inadvertence and cannumber be
regarded as deliberate. if the appellants companytention is
sound it would lead to fantastic results. the argument is
that a person accused of a bailable offence has such an
unqualified right to be released on bail that even if he
does his worst to obstruct or to defeat a fair trial his
bail-bond cannumber be cancelled and a threat to a fair trial
cannumber be arrested or prevented. indeed shree purushottam
went the length of suggesting that in such a case the
impugned subsequent companyduct of the accused may give rise to
some other charges under the indian penal companye but it
cannumber justify his re-arrest. fortunately that does number
appear to be the true legal position if the relevant
provisions of the companye in regard to the grant of bail are
considered as a whole along with the provisions of s. 561a
of the companye. it number remains to companysider the decision of the privy companyncil
in lala jairam das others v. king emperor  1  because
shri purushottam has very strongly relied on some of the
observations made in that case. according to that decision
the provisions of the companye of criminal procedure companyfer no
power on high companyrts to grant bail to a person who has been
convicted and sentenced to imprisonment and to whom his
majesty
 1   1945  l.r. 72 i.a. 120132. 1238
in companyncil has given special leave to appeal against his
sentence and companyviction. divergent views had been expressed
by the high companyrts in this companyntry on the question as to the
high companyrts power to grant -bail to companyvicted persons who
had been given special leave to appeal to the privy companyncil
these views and the scheme of the companye in regard to the
grant of bail were examined by lord russel of killowen who
delivered the judgment of the board in lala jairam dass
case  1 . the decision has thus numberapplication to the facts
before us but shri purushottam relies on certain
observations made in the judgment. it has been observed in
that judgment that their lordships take the view that ch. xxxix of the companye together with s. 426 is and was intend to
contain a companyplete and exhaustive statement of the powers
of a high companyrt in india to grant bail and excludes the
existence of any additional inherent power in a high companyrt
relating to the subject of bail . the judgment further
shows their lordships opinion like the high companyrt of
justice in england high companyrts in india would number have
inherent power to grant bail to a companyvicted person. it
would be clear from the judgment that their lordships were
number called upon to companysider the question about the inherent
power of the high companyrts to cancel bail under s. 561a. that
point did number obviously arise in the case before them. even
so in dealing with the question as to whether inherent
power companyld be exercised for granting bail to a companyvicted
person their lordships did refer to s. 561a of the companye and
they pointed out that such a power cannumber be properly
attributed to the high companyrts because it would if
exercised interrupt the serving of the sentence and
besides it would in the event of the appeal being
unsuccessful result in defeating the ends of justice. it
was also pointed out that if the bail was allowed in such a
case the exercise of the inherent power would result in -an
alteration by the high companyrt of its judgment which is
prohibited by s. 369 of the companye. in other words their
lordships examined the provisions of s. 561a and came to the
 1   1945  l.r. 72 i.a. 120 132
1239
conclusion that the power to grant bail to a companyvicted
person would number fit in with the scheme of chapter xxxix of
the companye read with s. 561a. in our opinion neither this
decision number even the observations on which shri purushottam
relied can afford any assistance in deciding the point which
this appeal has raised before us. incidentally we may add
that it was as a result of the observations made by the
privy companyncil in that case that s. 426 of the companye was
amended in 1945 and power has been companyferred on appropriate
courts either to suspend the sentence or to grant bail as
mentioned in the several subsections of s. 426. that is how
s. 426 2a  and  2b  number deal with the subject of bail even
though the main section is a part of chapter xxxi which
deals with appeals references and revisions. we must accordingly hold that the view taken by the bombay
high companyrt about its inherent power to act in this case
under s. 561 a is right and must be companyfirmed.