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358

GURCHARAN SINGH & ORS.

V.

STATE (DELHI ADMINISTRATION)

December 6, 1977

[P. K. GOSWAMI AND v. D. TuLzAPURKAR, JJ.]

Collstitution of India-Art. 136-When Supre1ne Court would interfere with

order cuncelling bail by High Court.

Crhninal Procedure Code 1973-Sections 437 439 and 497-Bail-Princi~

pies .for grant of-Cancellation of. '

The prosecution is launched against the appellant accused who are ranging.

from the Deputy Inspector General of Police to the Police Constables on the

ground that they were party to a criminal conspiracy to kill Sunder and caused

bis death

by drowning him in

Yamuna River pursuant to the conspiracy. Sunder

was said to be a notorious dacoit who was wanted in several cases of murder

and dacoity alleged to have been committed by him in Delhi and elsewhere.

It is stated that by May 1976 Sunder became a security risk for Sanjay GandhL

The appellants were arrested in connection with the prosecution between 10th

June 1977 and 12th July 1977. The Magistrate declined to release them

on

bail. Thereafter, they approached the Sessions Judge under s. 439(2) of the

Cr.

P. C. 1973. The Sessions Judge granted bail to ~he 4 appellants. There­

after the State moved the High Court under s. 439 (2) against the order of the

Sessions Judge for cancellation of the bail. The Sessions Judge while granting.

the bail held that the arguments of the prosecution that if the appellants were

relea<:.ed on bail they \vould misuse their freedom to tamper with the witnesses

\Vas not quite convincing. The learned Judge further held that there was little

to gain

by tampering with the witnesses who have themselves already tampered

with their evidence by making contradictory statements

in respect of the same

transaction. The learned Judge also held that there was inordinate delay

in

registering the case and that there was little probability of the appellants fleeing

from justice or tampering with the witnesses and also having regard to the

character of evidence the court was inclined to grant bail to the appellants.

The High

Court while setting aside the orders of the Sessions Judge observed

that considering the nature of the offence, character

of the evidence, including

the fact that some of the witnesses during preliminary enquiry did not fully

support the prosecution case, the reasonable _apprehension of witnesses being

tampered with and all other factors relevant for consideration for grant

or

refusal of bail in a non-bailable offence punishable with death or imprisonment

for life there was no option but to cancel the bail.

In an appeal by special leave, the appellants contended

( 1) The old Criminal Procedure Code refers to an accused being

"brought

before a Court" whereas s. 437(1) of Cr. P. C. 1973 uses the expression

"brought before a Court other than the High Court or a Court of Sessions".

Therefore, the limitations laid down in s. 497 ( 1) to the effect that "shall not

be so relevant if there appears reasonable ground for believing that

he has been

guilty of an offence punishable with death or imprisonment for

life" are not

in the way of the High Court or the

Court of Sessions in dealing with bail

under

s. 439 of the Code.

(2)

Under section 439(2) the High Court could ~ot entertain application

for cancellation of bail and it v.ras only the court of sess1ons that was competent_ ll'

to deal with the matter.

(3) On facts the High Court was not justified in cancelling the bail.

H Dismissing the appeal,

HELD : (I) The change in language u/s. 437(1) does not affect the true

legal position.

Under the new Code as well as the old one an accused after

being arrested

is produced before the Magistrate. There is no provision in

the.

•

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•

GURCHARAN SINGH v. STATE (Goswami, J.) 359

'Code whereby an accused is for the first time produce_d after ini~ial arrest

1

~efb.r~

the Court of Sessions or before the High Court. It. is .not P?SStble to ho . t a

the Sessions Judge or the High Court certainly

en1oy1ng wide

powe~s will. ~e

oblivious of the considerat.ions of the .Iikel!hood of fthe

1

.~ccuse[t

63

bec~:f> ~]

1

Y

·of an offence punishable with death or 1mpnsonnlent or I e. •

(2) A Court of Sessions cannot cancel a bail ~vhich ~as already been granted

by the High Court unless ne\V circumstances. anse dun~g the progr~ss of the

trial after the accused person has been admitted to bail

by the

HI~ .fo~~t.

If, however, a Court of Sessions had admitt~ an accuse~ pers~n to 3:

1

e

State has t\vo options. It may move the Se_ss1ons Judge if certain news clfcums­

tances have arisen which were not earlier known !O the State. The tate may

as well approach the High Court being the supenor court under

s.

439(~) to

·commit the accused to custody. This position follows from the subord1n?te

position of the court of Sessions vis-a-vis the High Court. :Under.~· 397 the H~gh

Co rt d-the Sessions JudirP }.a.vt; concurrent pow~rs of rev1s1on. However,

u an . . und ~nat section has been put m by a person to the High

~he1:.t an ~ppihca1&~. -• .,,, eJudge no further application by the saine person shall

b~uenl~~ta?ned e J..;1 'either authority. [364 B-E, FJ

F~11apter XXXIII contains provisions in respect of bail and bonds.

t<

3

!1 436 provides for invariable rule for bail in case of bailable offences

Se_cJect to the specified exception under sub-s. (2). Section 437 provides as to

When bail may be taken in case of non-bailable·. offences. It makes a distinc­

tion between offences punishable with death

or imprisonment for life on the

one hand and the rest

of the offences on the other hand. (364 CJ

( 4) With regard to the first category if there are reasonable grounds for

believing that an accused has been so guilty in other non-bailable

·cases judicial

discretion will always be exercised by the court in favour of granting bail sub-

ject to

s. 437(3) with regard to imposition of conditions, if necessary. In case

of

non-bailable offences punishable with death or imprisonment for life reasons

have to be recorded for releasing a person on bail. The only limited enquiry

by the Magistrate at that stage relates to the materials for the suspicion. The

position would naturally change on investigation progress and more facts and

circumstances come to light. The over·riding considerations in granting bail

are the nature and gravity of the circumstances in which the offence

is com­

mitted, the position and the status of the accused with reference to

victin1 and

the witnesses, the likelihood of the accused fleeing from justice, of repeating

the offence, of jeopardising his own life being faced

with a grim prospect of

possible conviction in the

cas1;1, of tampering \Vith the witnesses, the history

·of the case as well as of its investigation and other relevant grounds which in

view of so many variable factors, cannot be exhaustively set out.

[365 A-C. D, 366 F-H, 367 A-H. 36X Al,

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The State v. Captain Jagjit Singh, ·[1962] (3) S.C.R., 622, referred to. F

(5) Ordinarily, the High Court would not exercise its discretion to interfere

with an order of bail granted

by the Sessions Judge in favour of the accused.

In the present case, the Sessions Judge did not take into proper account the

grave apprehension of the prosecution that there

·was likelihood of the appellants

tampering with the prosecution witnesses. In the peculiar nature

of the case

and the position

of the appellants in relation to the eye witnesses it was incum-

bent upon the

Sessions Judge to give proper weight to the serious apprehension

of the prosecution with regard to the tampering with the eye witnesses. The G

manner in which the above plea

was disposed of by the Sessions Judge was

very casual. The facts

and~ circumstances of each case will govern the exercise

of judicial discretion in granting or cancelling baill. The High Court has correc-

tly appreciated the entire position and the Sessions Judge did not at the stage

the case was before him. This court would not, therefore, be justified

u/ Art.

136 of the Constitution in interfering with the discretion exercised by the

l{igh

'Court in cancelling the bail. (368 C-D-H, 370 A-BJ

The Court, 'however, directed that the ~fagistrate without loss of further ff

1ime, should pass an appropriate order under s. 209 Cr. P. C. and that Court

of Sessions would thereafter commence trial

at an early date and examine all

the

eye witnesses first and such other material witnesses thereafter as

may be

produced by the prosecution

as early as possible and that trial should proceed

' '

·suPREME COURT.REPORTS '. 360

'

'

[1978] 2 s.c.R>

. A : day to day as far as praCticable. The Court also observed that after the state_--

ments of the eye witnesses and the Panch· witness have been_ recorded it would

be open to the accused to move the Sesions Judge for admitting them to bail.

(370 C-EJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 456

of 1977. .

B Appeal by Special Leave from the Judgment and

Order dated

19th of September 1977.

of the Delhi High Court in Criminal Misc. ~M). No. 456 of 1977 and ·

Criminal Appeal No. 457 of l 977

· Appeal by Special Leave from the Judgment and Order dated

C 19-9-1977 in the Delhi High Court in Criminal Misc. (M) No. 474 .

. of J977, ·

D

A. N.-Muila, D. C. Mathur, S. K. Ga'mbhir, Miss··n. Ram·

krithiani and Miss Manju Jatley for the Appellants in Cr. A.456/77.

D. Mook;rtee, D. C. Mathur; S. K. Gambhir, Miss ·n. Ram·

krikhiani, Miss Manju Jelley for the Appellants in Cr!. A. 457 /77.

Soli J. Sorabjee, Addi, Solicitor General and R. N. Sachthey for

the Respondent in both the appeals.

The Judgment of the Court was delivered by

GOSWAMI, J.· These two appeals by Special Leave are directed

against the judgment and order of the . Delhi High . Court cancelling

E · the orders of bail of each of the appellants passed by the learned

Sessions Judge, Delhi. . They were all arrested in pursuance of the

First Information Report lodged by the · Superintendent of Police,

C.B.I. on 10-6· 77 in what is now described as the "Sunder Murder

Case". . The report at that stage did not disclose names oi accused

· persons. and referred to the involvement of "some Delhi Police Per­

sonnel". · Sunder was said to be a notorious ditcoit who was wanted

F in several case> of murder and dacoity alleged to have been commit-·

ted by him in Delhi and elsewhere. It is stated that by May, 1976

Sunder became a "security risk for Mr. Sanjay Gandhi". It appears

. Sunder was arrested at Jaipur on 31-8-1976 and wa. in police cus-·

tody in Delhi between 2nd of November 1976 and 26t!). of Novem­

ber 1976 under the orders of the Court of the Additional Chief Metro-

G

H

politan lagistrate, Shahdara, Delhi.

It is alleged that the appellants ranging from the Deputy Inspec­

tor General of Police and the Superintendent of Police at the top

down to some police constables were a party

to

a ~'riminal conspiracy

to kill Sunder and caused his .death by drowning him in the Yamuna .

in pursuance· of the conspiracy. According to the prosecution, the

alleged murder \ook place on the night of 24th of Novemb~r 1976.

The appel!ants were arrested in connection with the above case

between June 10, 1977 and July 12, 1977 and the Magistrate declined

to release them on bail. Thereafter, they approached the learned·

t

•

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•

GURCHARAN SINGH v. STATE (Goswami, J.) 361

Sessions Judge under Section 439(2), Criminal Procedure Code, 1973 A

(briefly the new Code) and secured r'~lease on bail of the four appel­

lants, namely, Gurcharan Singh (Supdt. of Police), P. S. Bhinder

!D.I.G. of Police), Amarjit Singh (Inspector) and Constable Paras

Ram on 1st August 1977 and of the eight other pclice personnel on

1 l th August 1977.

Charge sheet was submitted on 9th August 1977 against

13 B

accused including

all the appellants under Section 120-B read with

S€ction 302, I.P .C. end under other Sections. The 13th accused wllo

was also a policeman has been evading arrest.

The Delhi Adruinistration moved the High Court under Section

439(2), Cr. P.C. against the orders of the learned Sessions J1idge for

cancellation of the bail. On September 19, 1977 the High Court set C

a~icle the orders of the Sessions Judge dated 1-8-1977 and 11-8-1977

and the bail bond!; furnished by the appellants were cancelled and

~hey were ordered to be taken into custody forthwith. Hence these

appeals by Special Leave which were argued together and

will be

disposed of

by this judgment.

In order to appreciate the submissions, on behalf of the a ppel­

lants, of Mr. Mulla

f.Qllowed by Mr. Mukherjee it will be appropriafe

to briefly advert to certain relevant facts.

On the allegations, this is principally a case of criminal conspiracy

to murder a person in police custody be be a bandit. The police

personnel from tho Deputy Inspector General of Police to police

Constables are said to be involved

as

,accused.

Before the F.I.R. was lodged on 10th June 1977, there had been

a preliminary inquiry conducted by the C.B.I. between 6th oi April

1977 and 9th

of June 1977 bearing upon the death of

Sunder. Fifty

three· witnesses were examined in that inquiry and

six of them

were

said to be eye witnesses. Those eye witnessess were all police per­

sonnel. During this preliminary inquiry, all

the six alleged eye wit­

nesses did not support the

prosecution case, but gave statements in

favour of the accused. However, as staled earlier, the F.I.R. was

lodged on 10th of June 1977 and investigation proceeded in which

statements

of witnesses were recorded under Section 161, Cr.

P.C.

The appellants were also arrested and suspended during the period

between 10th of June 1977 and 12th of July 1977. During the course

of the investigation, seven witnesses including

six persons already

examined during the preliminary inquiry, gave statements

implicaJirig

the appellants in support of the theory of prosecution. The witnesses

were also forwarded to the Magistrate for recording their statemenfs

under Section 164, Cr. P.C. .All the seven witnesses, it is stated, con­

tinued

to support the

prosecution case in their statements on oath re­

corded under Section 164, Cr. P.C. Six eye witnesses who made such

discrepant statements and bad supported the defence version

at one

.stage, explained that some the accused, namely,

D.S.P. R. K.

Sharma and Inspector Harkesh had exercised pressure on them to ·

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362

SUPREME COURT REPORTS [1978] 2 S.C.R.

make such statements in favour of the defence. The seventh eye wit­

ness AS.I. Gopal Das, who had not been examined earlier, made

statements under Section

164, Cr. P.C. in favour of the prosecution.

It is in the above background that the Delhi Administration moved

the High

Court for cancellation of the bail granted by the Sessions

Judge alleging that there

was grave apprehension of the witnesses be­

ing tampered

with by the accused persons on account of their position

and influence which they wielded over the witnesses. The

learned

Sessions Judge adverting to this aspect had, while granting bail, ob­

served

as follows :-

''The argument of the learned Public Prosecutor that if

released on bail, the petitioner will misuse

their freedom to

tamper with the witnesses

is not quite convincing. After all,

there

is little to gain by tampering with the witnesses who

have, themselves, already tampered with their evidence

b)

making contradictory statements in respect of the same tran-

saction." ·

The learned Sessions Judge ended his long discussion as follows:-

"To sum up, after reviewing the entire material includ­

ing the inquest proceedings held l;iy the Sub-Divisional

Magistrate statements recorded

by the CBI during the pre­

liminary

enquiry and under section 161, Cr. P.C. and the

statements recorded under section

164, Cr. P.C. and hav­

ing regard to the inordinate delay in registering this case

and to the circumstances that there

is little probability of the

petitioners

flying from justice or tampering with the wit­

nesses, and also having regard to the character of evidence,

J am inclined to grant bail to the petitioners."

The High Court, on the other hand, set aside the orders of th0

Sessions Judge observing as follows :-

"Considering the nature of the offence. character of the

evidence including the fact that some of. the witnesses dur­

ing preliminary inquiry did not fully support the prosecu­

tion case; the reasonable apprehension of witnesses being

tampered

with and all other factors relevant for considera­

tion.

while considering the application for grant or refusal

of bail

in a non-bailable offence punishable with death or

imprisonment for life,

J have

no option but to cancel t11e

bail. I am of the considered view that the Learned Sessions

J wlge did not exercise his judicial discretion on relevant well

recognised principles and factors which ought to have been

considered by him."

Section 437 of the new Code corresponds to Section 497 of

the Code of Criminal Procedure, 1898 (brietly the old Code) and

Section 4-19 of the new Code corresponds to Section 498 of the old

Code. Since there is no direct authority of this Court with regard to

f

GURCHARAN SINGH v. STATE (Goswami, J.) 363

·section 439, Cr. P.C. of the new Code, Counsel for both sides drew

·Our attention to various decisions of the High Courts under Section

498, Cr. P.C.

of the old Code.

Mr. Mulla drew out particular attention to some change in the lan­

guage

of Section 437(1), Cr. P. C. (new Code) compared with Sec-

tion 497 (l) of the old Code. Mr. Mulla points out that while Sec­

tion

497(1), Cr. P.C. of the old Code, in terms,

refers to an accused

being "brought before a court", Section 437(1), Cr. P.C. uses the

expression "brought before a court other thau the High Conrt or

a Court of Session". From this, Mr. Mulla submits that limitations

with regard to the granting of bail laid down under Section 497 ( 1)

to the effect that the accused "shall not be so released if there appears

reasonable grounds for believing that he has been

guilty of an offence

punishable with death or imprisomnent for

life" are not in the way of

the. High Court or the Court of Session in dealing with bail under Sec­

tion 439 of the new Code. It is, however, difficult to appreciate how

the change in ·the language under Section 437 ( 1) affects the true legal

position. Under the new as well as the old Code an accused after

being arrested

is produced before the Court of a Magistrate. There

is no provision in the Code whereby the accused is for the first time

produced after initial arrest before the Court of Session or before the

High Court.

Section 437 (1), Cr. P.C., therefore, takes care of the

situation arising out of an accused being arrested by the police and

produced before a Magistrate. What

has been the rule of production

of accused person after arrest

by the police under the

old' Code has

been made explicitly clear

in Section 437(1) of the new Code by excluding the High Court or the Court of Session.

From the above change of language it is difficult to reach a conclu­

sion that the Sessions Judge or the High Court need not even hear

in mind the guidelines which the Magistrate has necessarily to follow

in considering bail of an accused. It is not possible to hold that the

Sessions Judge or the High Court, certainly

enjoyin_g wide powers, will

be oblivious of the considerations of the likelihood of the accused

being guilty of an offence punishable with death or imprisonment for

life.

Since the Sessions Judge or the High Court will be approached

by an accused only after refusal of bail by the Magistrate. it is not pos-

sible to hold that the mandate of the law of bail under Section 437,

Cr. P.C: for the Magistrate

will be ignored by the High Court or by

the

Sessions Judge.

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It is submitted by Mr. Mukherjee that u/s 439(2) Cr. P.C. of G

the new Code, the High Court could not entertain the application for

cancellation of bail and it was only the Court of Session that was com­

petent to deul with the matter.

Section 439 of the new Code confers special powers on High Court

or Court of Session regarding bail. This was also the position under

Sec. 498 Cr. P.C. of the old Code. That is to say, even if a Magist­

rate refuses to grant bail to an accused person, the High Court or the

Court of Session may order for grant

of bail in appropriate cases.

Similarly under Section 439(2) of the new Code. the High Court or

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364 SUPREME COURT REPORTS [1978) 2 S.C.R.

the Court of Session may direct any person who has been released on

bail to be arrested and committed to custody. In the old Code, Sec­

tion 498(2) was worded in somewhat different language when it ""'d

that a High Court or Court of Session may cansc any person who has

been admitted to bail under sub-section ( l) to be arrested and may

commit him

fo custody. In other words, under

Section 498(2) of the

@Id Code, a person who had been admitted to bail by the High

Court could be committed to custody only by the High Court. Simi-

larly,

if

a person was admitted to bail by a Court of Session, it was

only the Court of Session that could commit him to custody. This

rfslriction upon the power of entertainment of an application for

committing a person, already admitted to bail, to custody,

is lifted in the new Code under Section 439(2). Under Sec­

tion 439(2) of the new Code a High Court may commit a person re­

leased on bail under Chapter

XXXllI by any Court including the Court ol Session to custody, if it thinks appropriate to do so. It must, llow­

e>·er, be made clear that a Court of Session cannot cancel a bail which

h<i< already been granted by the High Court unless new circumstances

"rise during the progress of the trial after an accw;ed 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

ih·c superior Court under Section 439 (2) to commit the accused to

tusiody. When, however, the State is aggrieved by !he order of the

Sessions Judge grauting bail and there are no new cirL'Umstances that

have cropped i;p except those already existed, it is .futile for the Slate

to move the Sessions Judge again and it is competent in law to move

the High Court for cancellation of the bail. This position follows from

1hc subordinate position of the Court of Session vis-a-vis the High Court.

It is siguificant to note that under section 397, Cr. P.C. of the new

Code while the High Court and the Sessions Judge have the concur­

rent po\vers or revision, it is expressly provided under sub-section 3

of that se;;tion that when an application under that Section has been

made by any person to the High Court

or to the Sessions Judge, no

further application

by the

same person shall be entertained by

either of them. This is the position explicitly made clear under the

new Code with regard to revision when the anthorities have concurrent

powers. Similar was the position under section 435 ( 4), Cr. P.C.

;)f the old CoJc with regard to concurrent revision powres of the Ses­

;ions Judge and the District Magistrate. Although under section

435 (

1), Cr.

P.C. of the old Code the High Court, a Sessions Judge

or a District Magistrate had concurrent powers of revision, the High

Court's jurisdiction in revision was left untouched. There is no

provision

in the new Code excluding the jurisdiction of the

Hi~h

Court in dealing with an application under section 439(2), Cr. P.C.

officer incharge of a police sation to a person accused of or suspected

of the commission of an offence punishable with death or imprisonment

'ur life. if there appear reasonable grounds for believing that he has

hetn so guilty. Naturally, therefore, at the stage of investigation un­

le<S there arc some materials to justify an officer or the court to believe·

GURCHARAN SINGH v. STATE (Goswami, J.) 365

that there are no reasonable grounds for believing that the person ac-k

cused of or suspected of the co=ission of much an offence has been

guilty of the same, there is a ban imposed

u/s 437(1) Cr.

P.C. against

granting of bail. On the other hand, if to either the officer incharge of

the police station or to the court there appear to

be reasonable grounds

to believe that the accused has been guilty of such an offence there

will

be no question of the court or the officer granting bail to

him. In

all other non-bailable cases judicial discretion will always be exercised B:

by the court in favour of granting bail subject to sub~ec. 3 of Sec.

437 Cr. P.C. with regard to imposition of conditions if necessary.

Under sub-sec. 4 of S. 437 Cr. P.C. an officer or a coun releasing any

person on bail under sub-s.

1 or sub-s. 2 of that section is required to

record in writing his or its reasons for

so doing. That is to say, law

requires that

in non-bailable offences punishable with death or imprison-

ment

for life, reasons have to be recorded for releasing a person on C'

bail, clearly disclosing how discretion has been exercised in that behalf.

Section 437 Cr. P.C. deals, inter alia with two stages during the ini-

tial period of the investigation of a non-bailable offence. Even the

officer incharge of the police station may, by recordinll his reasons in

writing, release a person accused of or suspected of the commission I»

of any non:baHable offence provided there are no reasonable grounds

for believing th(!t the accused has committed a non-bailabk offence.

Quick ~rrests by the police may be necessary when there are Sllfticient

materials for the accusation or even for suspicion. When snch an

accused

is produced before the court, the court has a discretion to

grant

bail in all non-bailable cases except those punishable with death

or imprisonment for life if there appear to be reasons

to

believe that he E

has been guilty

of

such· offences. The Courts over-see the action of

the police and exercise judicial discretion in granting bail always bear-

ing in mind that the liberty of an individua,1 is not unnecessarily and

unduly abridged and at the same time the cause of justice does not

suffer." After the court releases a,person on bail under sub-s. 1 or sub-

Sec. 2 of S. 437 Cr. P.C. it may direct him to be arrested again when

it conslders necessary so to

do. This

will be also in exercise of its F

judicial discretion on valid grounds.

Under th~ first proviso to s. 167(2) no Magistrate shall authorise

the detention

of an accused in custody under that section for

a total

period exceeding 60 days on the expiry of which the accused shall be

released on bail if he is prepared to furnish the same. This type of

release under the proviso shall be deemed to be a release under the

provi~ion~ of Chapter XXXIII ~e1'.'ting to bail. This proviso is an in­

novat1o_n rn the new Code and 1s mtended to speed up investigation by

the police so that a person does not have to languish unnecessarily in

prison facing a trial.

Ther_e is a similar provision under sub-s. 6 of s.

437 Cr.

P.C. which corresponds to s. 497 (3A) of the old Code. This

provision is again intended to speed up trial without unnecessarily de­

taining a person

as an under-trial prisoner, unless for reasons to be

recorded

in writing, the Magistrate otherwise directs. We may also

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366 SUPREME COURT REPORTS [1978] 2 S.C.R.

notice in tl1is connection sub-s. 7 of s. 437 which pro•1ides that if at

any time after the conclusion of a trial of any per>on accused of non­

bailable offence and before the judgment

is delivered. the court is of

opinion that there are reasonable grounds for believing that the accus­

ed is not

guilty of such an offence, it shall release the accused, if he

is in ,custody, on the execution of him of a bond without sureties for

his appearance to hear the judgment. 'I'he principle underlying s.

437 is, therefoi;c, towards granting of bail except in cases where there

appear

to

be reasonable grounds for believing that the accused has been

gu'lty of an offence punishable with death or imprisonment for life and

also when there are other valid reasons to justify the rciusal of bail.

Section 437 Cr. P. C. is concerned only with the court of Magistrate.

It expressly excludes the High Court and the court of ,,esslon. The

language of s. 437(1) may be contrasted withs. 437(7) to which we

have already made a reference. While under sub-sec. ( 1 J of s. 43 7

Cr. P. C. the words are : "If there appear to be reasonable grounds

for believing that he has been guilty". Sub-s. (7) says : "that there

are reasonable grounds for believing that the accused

is not guilty

of

such an offence". This difference in language occurs on account of

the stage at which the two sub--scctions operate. During the initial

investigation of a case in order to confine a person in detcnti_on, there

should 011ly appear reasonable grounds for believing that he has been

guilty of an offence punishable with death

or imprisonment for life.

Whereas after submission of charge-sheet

or during trial for such an

offence the court has an opportunity

to form somewhat clear opinion

as to whether there are reasonable grounds for

believing that the ac­

cused

is not guilty of such an offence. At that stage the degree of

certainty

of opinion in that beha.Jf is more after the trial is over and

judgment is defered than at a pre-trial stage even after the charge­

shcet. There is a noticeable trend

in the above provisions of law

that even in case of such non-bailable offences a person need not be

detained

in custody for any period more than it is absolutely

necessary,

if there arc no reasonable grounds for believing that he i, guilty of

such an nffence. There will be, however, certain over-riding consi­

derations to which

we shall refer hereafter. Whenever a person is

arrested by the police for such an offence, there should

be materials

produced before the court to come to a conclusion as

to the nature of

the case he

is involved in or he is suspected of. If

at that stage from

the materials available there appear reasonable grounds for believing

that the person has been guilty of

an offence punishable with death or

imprisonment for 1ife, the court has no other option than to commit

him to custody. At that stage, the court is concerned with the exis­

tence of the materials against the accused and not

as to whether those

materials are credible or not on the merits.

In other non-bailable cases the court w;ll

exercise the judicial dis­

cretion in favour of granting bail subject to subs. 3· of·'· 437 Cr. P.C.

if it deems nece~sary to act under it. Unless exceptional circums­

tances are brought to the notice of the court which may defeat proper

investigation and a fair trial, the court will not decline to grant bail to a

person who

is not accused of an offence punishable with death or

imprisonment for life. It is also clear that when an accused is brought

GURCHARAN SINGH v. STATE (Goswami, J.) 367

before the court of a Magistrate with the allegation against him of. an

offence punishable with death or imprisonment for life, he has ordi­

narily no option in the matter but to refuse bail subject, however, to

the first proviso to

s. 437(1) Cr.

P. C. and in a case where the Magis­

trate entertains a reasonable lielief on the materials that the accused

has not been guilty of such an offence. This will, hqwever, be ai1

extra ordinary occasion since there will be some materials at the stage

of initial arrest, for the accusation or for strong suspicion of commission

by the person of such an offence.

By

on amendment in 1955 in sec. 497 Cr. P.C. of the old Code

the words "or suspected of the co=ission of" were for the first time

introduced. These words were continued in the new Code

in s.

437(1) Cr.

l'.C. It is difficult to conceive how if a police officer ar­

rests a person on a reasonable suspicion of commission of

an offence

punishable with death or imprisonment for life

(S. 41 Cr. P.C. uf the

new Code) and forwards him to a Magistrate (S. 167(1) Cr. P.C. of

the new Code) the Magistrate at that stage will have reasons to hold that

there are no reasonable grounds for believing that he has not been

guilty of such an offence. At that stage unless the Magistrate

is able

to act under

the proviso to s. 437(1) Cr.

P.C. bail appears to be out

of the question. The only limited inquiry may then relate to the

materials for the suspicion. The position will naturally change as

investigation progresses and more facts and circumstances come to light.

Section 439(1), Cr. P.C. of the new Code, on the other hand, con­

fers special powers on the High Court or the Court of Session in res­

pect of bail. Unlike u/s. 437(1) there is no ban imposed u/s.

439(1), Cr. P.C. against granting of bail by the High Court or the

Court of Session to persons .accused of an offence punishable with

death

or imprisonment for life. It is, however, legitimate to suppose diat the High Court or the Court of Session will be approached by

an accused only after he has failed before the Magistrate and after the

investigation has progressed throwing light on the evidence and cir­

cumstances implicating the accused. Even so, the High Court or \ho

Court of Session will have to exercise its jndicial discretion in

considering the question of granting of bail

u/s 439(1), Cr. P. C. of the new Code. The over-riding considerations

in granting bail to which we adverted to earlier and which are common

bote in the case of Section 437(1) and Section 439(1 ), Cr. P.C. of

the new Code are the nature and gravity of the circumstances in

which the offence

is committed, the position and the status of

the

accused with reference to the victim and the witnesses; the likelihood,

of the accused fteeing from justice; of repeating the offence; of jeo­

pardising

his own life

be_iiig faced with a grim prospect of possible

conviction in the case; of tampering with witnesses; the history of the

case as

well as of its investigation and other relevant grounds which

in view of

so many variable

(actors, cannot be exhaustively set out. '

The question of cancellation of bail

u/s. 439(2), Cr.

P. C. of the

new Code

is certainly different from admission to bail u/s. 439(1),

Cr.

P. C. The decisions of the various High Courts cited before us

c

.B

.D

E

:F

·G

368 SUPREME COURT REPORTS l 1978) 2 S.C.R.

are mainly with regard to the admission to bail by the High Court

under section 498,

Cr. P.C. (old). Power

of the High Court or of

the Sessions Judge to admit persons to bail under section 498, Cr. P.C.

(old)

was always held to be wide without any express limitations in

law. In considering the question of bail justice to both sides

governs

the judicious exercise of tbe court's judicial discretion. The only

authority cited before us where tbis Court cancelled bail granted by

the High Court is that of The State v. Captain Jagjit Singh( 'l. The

Captain was prosecuted along with others for conspiracy and also

under section 3 and 5 of the Indian Official Secrets Act, 1923 for

passing on official secrets to a foreign agency. This Court found a

basic error

in the order of tbe High Court in treating

the case as falliug

under section 5 of the Official Secrets Act which is a bailable offence

when the High Court ought to have proceeded on the assumption that

it

was under section 3 of that Act which is a non-bailable offence. It

is because of this basic error into which the High Court fell that tbis

Court interfered with the order of bail granted

by the High Court.

In the present ca~e the Sessions J udgc having admitted tfte appel­

lants to bail

by recording his reasons we will have to

see whether

that order

was vitiated by any serious infirmity for which it was

right and proper for the High Court, in the interest of justice, to

interfere with

his discretion in granting the bail.

Ordinarily the High Court will not exercise its discretion

to inter­

fere with an order

of bail granted by the Sessions Judge in favour

of

an accused.

We have set out above tbe material portions of the order of the

Sessions Judge from which it is seen that he did not take intc proper

account the

grave apprehension of the prosecution that there was a

likelihood of the appellants tampering with the prosecution witnesses.

In tbe peculiar nature of the case revealed from tbe allegations arid

the position of the appellants in relation to the eye witnesses

it was

incumbent upon the Sessions Judge to give proper weight to the

serions apprehension of tbe prosecution with regard to tampering witb

the

eye witnesses, which was urged before him in resisting tbe appli­

cation

for bail. The matter would have been different if

there was

absolutely no basis for tbe apprehension of the prosecution with regard

to tampering of the

witnesses and the allegation rested only on a bald

statement. The manner in

which the above plea was disposed of

by tbe Sessions Judge was very casual and even the language in the

order

is not clear enough to indicate what he meant by observing that

"the witnesses. . . . . . . . themselves already tampered with their

evidence by making contradictory statements

............

". The

learned Sessions Judge was not alive to the legal position that there

was no substantive .evidence yet recorded against the accused until

the

eye witnesses were examined in the trial which was tc proceed

unimpeded

by any vicious probability. The witnesses stated on oath

u/s. 164.

Cr.

P.C. that they had made the earlier statements due

to pressurisation by

some of the appellants. Where the truth lies

(I)

[1962] 3 S.C.R. 622.

I

GURCHARAN SINGH v. STATE (Goswami, !.) 3 69

will be detenuine<l at the trial. The High Court took note of this

serious infirmity of approach of the Sessions Judge as also the uri­

warranted manner hording on his prematurely commenting on t&e

merits of the case by observing that "such deposition cannot escape

a taint of unreliability in some measure or other". The only que&­

tion which the Sessions Judge was required to consider at that ~tage

was whether there was prima facie case made out, as alleged, on the

statements

of the witnesses and on other materials.

There appeared

at least nothing at that stage against the statement of ASI Gopal Das

who had made no earlier contradictory statement. "The taint of

unreliability" could not

be attached to his statement even [or the

reason

given by the learned

Sessions Judge. Whether his evidence

will ultimately be held to be trustworthy will be an issue at the sfage

of trial. In considering the question of bail of an accused in a no11-

bailablc offence punishable with death or imprisonment for life, it is

nece;s<try for the court to consider whether the evidence diSclose& a

prima facie case to warrant his detention in jail besides the other

relevant factors referred

to above. As a link in the chain of criminal

conspiracy the prosecution

is also relying on the conduct of some

of

the appellants in taking Sunder out of Police lockup for making what

is called a false discovery and it is but fair that the Panch witness

in th".t behalf be not allowed to be got at.

We may repeat the two paramount considerations, viz. likelihood

of the accused fleeing from justice and his tampering with prosecution

evidence relate

to ensuring a fair trial of the.

case in a court of justice.

It is essential that due and proper weight should be bestowed oii

these

two factors apart from

others. There cannot be an inexorable

formula in the matter of granting bail. The facts and circumstances

of each case will govern the exercise of judicial discretion in granting

or cancelling bail.

In dealing with the question of bail under Section 498 of the

old Code under which the High Court

in that case had admitted the accu>ed to bail, this Court in The State v. Captain Jagjit Singh,

(supra) while setting aside the order of the High Court granting bail,

made certain general observations with regard to the principles that

should govern

in granting bail in a non-bailable case as follows : "It (the High Court) should then have taken into

account the various considerations, such

as, nature and

seriousness of the offence, the character of the evidence,

circumstances which are peculiar to the accused, a

reasonable

possibility of the presence of the accused not being secured

at the trial, reasonable apprehension of witnesses being

tampered with, the larger interests of the public or the State,

and similar other considerations, which arise when a court

is asked for bail in a non-bailable offence. It is true that

under s. 498 of the Code of Criminal Procedure, the powers

of the High Court in the matter of granting bail are very

wide; even so where the offence is non-bailable, various con­

siderations such as those indicated above have to be taken

into account before bail

is granted in a non-bailable

offence."

A

B

c

D

E

F

G

H

A

B

c

D

E

370 SUPREME COURT REPORTS [1978] 2 S.C.R.

We are of the opinion that the above observations equally apply to a

case under Section 439 of the new Code and the legal position is

not different under the new Code.

We are satisfied that the High Court has correctly appreciated

the entire position and the Sessions Judge did not at the stage the

case

was before him. We will not,

thereifore, be justified under

Article 136 of the Constitution in interfering with the discretion

exercised by the High Court in cancelling the bail of the Jppellants

in this case.

Before closing,

we should, however, make certain things clear.

We

find that the case is now before the committing Magistrate. We

are also informed that all documents have

been furnished to the

accused

u/s. 207, Cr.

P.C. of the new Code. The Magistrate will,

,therefore. without loss of further time pass an appropriate order

under Section 209, Cr.P.C. The Court of Session will, thereafter,.

commence trial at an early date and examine all the

eye witnesses

first and such other material witnesses thereafter

as may be

pro­

duced by the prosecution as early as possible. Trial should proceed

de die in diem as far as practicable at least so far as the eye witnesses

and the above referred to Panch witness are concerned. We have

to make this order

as both Mr. Mulla and Mr. Mukherjee submitted

that trial

will take a long time as the witnesses cited in the charge

sheet are more than

200 and it will be a punishment to keep the

appellants

in detention pending the trial. We have, therefore,

thought it

fit to make the above observation to which the learned

Addi. Solicitor General had readily and very fairly agreed. After

the statements

of the eye witnesses and the said

Panch witness l:ave

been recorded, it will be open to the accused to move the Sessions

Judge for admitting them to bail. pending further hearing. The appeals

are dismissed with the above observations. The Stay Qlders stand

vacated.

P.H.P. Appeal dismissed_

;­

/

•