iminal Appeal No 16 of 1958
Appeal by special leave from the Judgment and order dated January 14 1958 of the Bombay High Court in Criminal Application No 60 of 1958 arising out of the judgment and order dated January 9 1958 of the Court of Chief Presidency Magistrate at Bombay in an application for cancellation of bail in Case No 608W of 1957
1227 Purshottam Tricumdas Rajni Patel and I N Shroff for the appellant
K J Khandalwala and R H Dhebar for respondent No 1 1958
February 7
The Judgment of the Court was delivered by GAJENDRAGADKAR J
The appellant along with others has been charged under section 120B of the Indian Penal Code and section 16781 of the Sea Customs Act 8 of 1878
There is no doubt that the offences charged against the appellant are bailable offences
Under section 496 of the Code 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 complainant before the learned Magistrate for cancellation of the bail the learned Magistrate however dismissed the application on the ground that under section 496 be had no jurisdiction to cancel the bail
Against this order the complainant preferred a revisional application before the High Court of Bombay
Another application was preferred by the complainant before the same Court invoking its inherent power under section 561 A of the Code of Criminal Procedure
Chagla C J and Datar J who heard these applications took the view that under section 561A of the Code of Criminal Procedure the High Court 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 Court and came to the conclusion that in the present case it would not be safe to permit the appellant to be at large
That is why the application made by the complainant invoking the High Court s inherent power under section 561 A of the Code 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 156 1228 custody
It is against this order that the appellant has come to this Court in appeal by special leave
Special leave granted to the appellant has however been limited to the question of the construction of section 496 read with section 561A of the Code of Criminal Procedure
Thus the point of law which falls to be considered 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 section 496 of the Code of Criminal Procedure it can be cancelled in a proper case by the High Court in exercise of its inherent power under section 561A of the Code of Criminal Procedure This question is no doubt of considerable importance and its decision would depend upon the construction of the relevant sections of the Code
The material provisions on the subject of bail are contained in sections 496 to 498 of the Code of Criminal Procedure
Section 496 deals 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 an officer in charge of a police station or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail such person shall be released on bail
 The section further leaves it to the discretion of the police officer or the court if he or it thinks fit to discharge the accused person on his executing a bond without sureties for his appearance and not to take bail from him
Section 497 deals with the question of granting bail in the case of non bailable offences
A person accused of a non bailable offence may be released on bail but he shall not 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 section 4971
Sub section 2 deals with cases where it appears to the officer or the court that there are not reasonable grounds for believing that the accused has committed a non 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 court 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 section
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 non bailable offence is not concluded 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 confers oil the High Court and the Court of Session and on any other court 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 committed to custody
Section 4981 confers on the High Court or the Court of Session power to direct admission to bail or reduction of bail in all cases where bail is admissible under sections 496 and 497 whether in such cases there be an appeal against conviction or not
Sub section 2 of section 498 empowers the High Court or the Court of Session to cause any person who has been admitted to bail under sub section
1 to be arrested and committed to custody
There is one more section to which reference must be made in this connection and that is section 426 of the Code
This section incidentally deals with the power to grant bail to persons who have been convicted of non bailable offences when such convicted persons satisfy the court that they intend to present appeals against their orders of conviction
That is the effect of section 4262A which has been added in 1955
A similar power has been conferred on the High Court under sub section
2B of section 426 where the High Court is satisfied that the convicted person has been granted special leave to appeal to the Supreme Court against any sentence which the High Court has imposed or maintained
Sub section 3 provides that if the appellant 1230 who is released on bail under said sub section
2 or 2B is ultimately sentenced to imprisonment the time during which he is so released shall be excluded in computing the term for which he is so sentenced
That briefly is the scheme of the Code on the subject of bail
There is no doubt that under section 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 court 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 court 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 non bailable offences is entirely different
Though the recent amendments made in the provisions of section 497 have made definite improvement in favour of persons accused of non bailable offences it would nevertheless be correct 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 non bailable offences may perhaps be explained on the basis that bailable offences are generally regarded as less grave and serious than non bailable offences
On this basis it may not be easy to explain why for instance offences under sections 477 477A 475 and 506 of the Indian Penal Code should be regarded as bailable whereas offences under section 379 should be non bailable
ever it cannot be disputed that section 496 recognizes that a person accused of a bailable offence has a right to be enlarged on bail and that is a consideration on which Shri Purushottam for the appellant has very strongly relied
Shri Purushottam has also emphasized the fact that whereas legislature has specifically conferred power on the specified courts to cancel the bail granted to a person accused of a non bailable offence by the provisions of section 497 5 no such power has been conferred on any court in regard to persons accused 1231 of bailable offences
If legislature had intended to confer such a power it would have been very easy for it to add an appropriate sub section under section 496
The omission to make such a provision is according to Shri Parushottam not the result of inadvertence but is deliberate and if that is so it would not be legitimate or reasonable to clothe the High Courts with the power to cancel bails in such cases under section 561 A
It is this aspect of the matter which needs careful examination in the present case
Section 561A was added to the Code in 1923 and it purports to save the inherent power of the High Courts
It provides that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court 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 Courts prior to 1923
That is why legislature enacted this section to clarify the position that the provisions of the Code were not intended to limit or affect the inherent power of the High Courts as mentioned in section 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 cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code
It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code
It is only if the matter in question is not covered by any specific provisions of the Code that section 561A can come 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 not 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 cover 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 noticed that it is only the High Courts whose inherent power is recognized by section 561A and even in regard to the High Courts  inherent power definite salutary safeguards have been laid down as to its exercise
It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would riot be secured that the High Court can and must exercise its inherent power under section 561A
There can thus be no dispute about the scope and nature of the inherent power of the High Courts and the extent of its exercise
Now 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 innocence 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 conducted by the prosecution as would lead to the conviction of an innocent person similarly the progress of a criminal trial must not be obstructed by the accused so as to lead to the acquittal of a really guilty offender
The acquittal of the innocent and the conviction of the guilty are the objects of a criminal trial and so there can be no possible 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 Courts to secure the ends of justice
There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trial and it is for the continuance of such a fair trial that the inherent powers of the High Courts 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 country to escape the trial that again would be a case where the exercise of the inherent power would be justified in order to compel the accused to submit to a fair trial and not to escape its consequences by taking advantage of the fact that he has been released on bail and by absconding to another country
In other words if the conduct of the accused person subsequent to his release on bail puts in jeopardy the progress of a fair trial itself and if there is no other remedy which can be effectively used against the accused person in such a case the inherent power of the High Court can be legitimately invoked
In regard to non bailable offences there is no need to invoke such power because section 497 5 specifically deals with such cases
The question which we have to decide in this case is whether exercise of inherent power under section 561A against persons accused of bailable offences who have been released on bail is contrary to or inconsistent with the provisions of section 496 of the Code of Criminal Procedure
Shri Purushottam contends that the provisions of section 496 are plainly inconsistent with the exercise of inherent power under section 561A against the appellant in the present case and he argues that despite the order which has been passed by the High Court he would be entitled to move the trial court for bail again and the trial court would be bound to release him on bail because the right to be released on bail recognized by section 496 is an absolute and an indefeasible right and despite the order of the High Court that right would still be available to the appellant
If that be the true position the order passed under 1234 section 561A would be rendered ineffective and that itself would show that there is a conflict between the exercise of the said power and the provisions of section 496
Thus presented the argument no doubt is prima facie attractive but a close examination of the provisions of section 496 would show that there is no conflict between its provisions and the exercise of the jurisdiction under section 561A
In dealing with this argument it is necessary to remember that if the power under section 561 A is exercised by the High Court the bail offered by the accused and accepted by the trial court would be cancelled and the accused would be ordered to be arrested forthwith and committed to custody
In other words the effect of the order passed under section 561A just like the effect of an order passed under section 497 5 and section 498 2 would be not only that the bail is cancelled but that the accused is ordered to be arrested and committed to custody
The order committing the accused to custody is a judicial order passed by a criminal court of competent jurisdiction
His commitment to custody thereafter is not by reason of the fact that he is alleged to have committed a bailable offence at all his commitment to custody is the result of a judicial order passed on the ground that he has forfeited his bail and that his subsequent conduct showed that pending the trial he cannot be allowed to be at large
Now where a person is committed to custody under such an order it would not be open to him to fall back upon his rights under section 496 for section 496 would in such circumstances be inapplicable to his case
It may be that there is no specific provision for the cancellation of the bond and the re arrest of a person accused of a bailable offence but that does not mean that section 496 entitles such an accused person to be released on bail even though it may be shown that he is guilty of conduct entirely subversive of a fair trial in the court
We do not read section 496 as conferring on a person accused of a bailable offence such an unqualified absolute and an indefeasible right to be released on bail 1235 In this connection it would be relevant to consider the effect of the provisions of section 498
Under section 4981 the High Court or the Court 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 section 496
Shri Purushottam no doubt  attempted to argue that the operative part of the provisions of section 4981 does not apply to persons accused of bailable offences but in our opinion there can be no doubt that this sub section deals with cases of persons accused of bailable as well as non bailable offences
We have no doubt that even in regard to persons accused of bailable offences if the amount of bail fixed under section 496 is unreasonably high the accused person can move the High Court or the Court of Sessions for reduction of that amount
Similarly a person accused of a bailable offence may move the High Court or the Court of Sessions to be released on bail and the High Court or the Court 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 Court of Sessions the provisions of sub section
2 become applicable to his case and under these provisions the High Court or the Court of Sessions is expressly empowered to cancel the bail granted by it and to arrest the accused and commit him to custody
This sub section as we have already pointed out has been added in 1955 and now there is no doubt that legislature has conferred upon the High Court or the Court 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 Court of Sessions under section 4981
The result is that with regard to a class of cases of bailable offences failing under section 4981 even after the accused persons are admitted to bail express power has been conferred on the High Court or the Court of Sessions to arrest them and commit them to custody
Clearly then it cannot be said that the right of a 157 1236 person accused of a bailable offence to be released on bail cannot be forfeited even if his conduct subsequent to the grant of bail is found to be prejudicial to a fair trial
It would also be interesting to notice that even before section 4982 was enacted there was consensus of judicial opinion in favour of the view that if accused persons were released on bail under section 4981 their bail bond could be cancelled and they could be ordered to be arrested and committed to custody under the provisions of section 561 A of the Code Mirza Mohammad Ibrahim vs Emperor 1 Seoti vs Rex 2  Bachchu Lal vs State 3 Muunshi Singh vs State 4 and The Crown Prosecutor Madras vs Krishnan 5 
These decisions would show that the exercise of inherent power to cancel bail under section 561A was not regarded as inconsistent with the provisions of section 4981 of the Code
It is true that all these decisions referred to cases of persons charged with non bailable offences but it is significant that the provisions of section 4975 did not apply to these cases and the appropriate orders were passed under the purported exercise of inherent power under section 561A
On principle then these decisions proceed on the assumption and we think rightly that the exercise of inherent power in that behalf was not inconsistent with the provisions of section 498 as it then stood
It would now be relevant to enquire whether on principle a distinction can be made between bailable and non bailable offences in regard to the effect of the prejudicial conduct 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 non bailable on which are based the different provisions as to the grant of bail would not in our opinion have any 1 AIR 1932All534
2 AI R 1948 All
3 AIR 1951 All
4 AIR 1952 All 39
5ILR 1237 material bearing in dealing with the effect of the sub sequent conduct of accused persons on the continuance of a fair trial itself
If an accused person by his conduct puts the fair trial into jeopardy it would be the primary and paramount duty of criminal courts to ensure that the risk to the fair trial is removed and criminal courts are allowed to proceed with the trial smoothly and without any interruption or obstruction  and this would be equally true in cases of both bailable as well as non bailable offences
We therefore feel no difficulty in holding that if by his subsequent conduct a person accused of a bailable offence forfeits his right to be released on bail that forfeiture must be made effective by invoking the inherent power of the High Court under section 561A Omission of legislature to make a specific provision in that behalf is clearly due to oversight or inadvertence and cannot be regarded as deliberate
If the appellant s contention 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 cannot be cancelled and a threat to a fair trial cannot be arrested or prevented
Indeed Shree Purushottam went the length of suggesting that in such a case the impugned subsequent conduct of the accused may give rise to some other charges under the Indian Penal Code but it cannot justify his re arrest
Fortunately that does not appear to be the true legal position if the relevant provisions of the Code in regard to the grant of bail are considered as a whole along with the provisions of section 561A of the Code
It now remains to consider the decision of the Privy Council in Lala Jairam Das  Others vs 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 Code of Criminal Procedure confer no power on High Courts to grant bail to a person who has been convicted and sentenced to imprisonment and to whom His Majesty 1 1945 LR 72 IA 120132
1238 in Council has given special leave to appeal against his sentence and conviction
Divergent views had been expressed by the High Courts in this country on the question as to the High Courts  power to grant bail to convicted persons who had been given special leave to appeal to the Privy Council these views and the scheme of the Code in regard to the grant of bail were examined by Lord Russel of Killowen who delivered the judgment of the Board in Lala Jairam Das s case 1
The decision has thus no application 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 Code together with section 426 is and was intend to contain a complete and exhaustive statement of the powers of a High Court in India to grant bail and excludes the existence of any additional inherent power in a High Court relating to the subject of bail 
The judgment further shows their Lordships  opinion like the High Court of Justice in England High Courts in India would not have inherent power to grant bail to a convicted person
It would be clear from the judgment that their Lordships were not called upon to consider the question about the inherent power of the High Courts to cancel bail under section 561A
That point did not obviously arise in the case before them
Even so in dealing with the question as to whether inherent power could be exercised for granting bail to a convicted person their Lordships did refer to section 561A of the Code and they pointed out that such a power cannot be properly Attributed to the High Courts 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 Court of its judgment which is prohibited by section 369 of the Code
In other words their Lordships examined the provisions of section 561A and came to the 1 1945 LR 72 IA 120 132 1239 conclusion that the power to grant bail to a convicted person would not fit in with the scheme of Chapter XXXIX of the Code read with section 561A
In our opinion neither this decision nor 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 Council in that case that section 426 of the Code was amended in 1945 and power has been conferred on appropriate courts either to suspend the sentence or to grant bail as mentioned in the several subsections of section 426
That is how section 4262A and 2B now 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 Court about its inherent power to act in this case under section 561 A is right and must be confirmed
It is hardly necessary to add that the inherent power conferred on High Courts under section 561A has to be exercised sparingly carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself
After all procedure whether criminal or civil must serve the higher purpose of justice and it is only when the ends of justice are put in jeopardy by the conduct of the accused that the inherent power can and should be exercised in cases like the present
The result is that the appeal fails and must be dismissed
Appeal dismissed


Summary:
 The appellant was appointed to the post of Craftsman Jawan on November 23 1973
He was later promoted to the post of Naik in view of his good services and subsequently confirmed in that post
He served at various places in the country including field areas
He was however reverted from the post of Naik to the post of Craftsman Jawan
While he was in service he incurred the displeasure of the Commanding Officer of his regiment Major as he did not comply with his directions
He was consequently harassed and maltreated in various ways
Unable to bear the torture he surrendered to the mercy of the Commanding Officer of the Battalion Colonel
He however directed him to surrender to the Commanding Officer of his regiment and gave him a certificate of surrender
The Commanding Officer took him into custody
He was charge sheeted for the purpose and sentenced to 42 days imprisonment in military custody
During the period of his remaining in military custody his family suffered harassment
The appellant on 12th September 1984 left station with his wife and children without taking any leave
He stated that he became unwell and was under the treatment of a doctor
When he reported back to his unit with the fitness certificate the Commanding Officer of his regiment served him with a charge sheet on November 2 1984 and directed that he be tried by a summary court martial
On November 9 1984 the order of dismissal of the appellant from service was made by the Commanding Officer in the Summary Court Martial
The appellant challenged the aforesaid order in a writ petition to the High Court and sought quashing of the same contending that the Commanding Officer was not legally competent to preside a summary 954 court martial that the punishment of dismissal from service was disproportionate to the charge that he was denied a fair opportunity to defend himself and was in fact not permitted to question the witnesses
A Division Bench of the High Court however dismissed the writ petition holding that no objection was taken before the Summary Court Martial that the appellant was not allowed to be represented by his counsel that no objection was taken as to the competence of the Commanding Officer to act as a Judge in the Summary Court Martial that the appellant had earlier been convicted four times and entries were made in red ink in his service record and that as the appellant was absent from duty without leave and pleaded guilty before the court martial proceedings there was as such no illegality in the order of dismissal made in the court martial proceedings
Dismissing the Appeal  HELD 1
Four kinds of courts martial are specified in Section 108 of the 
These area General Courts Martial b District Courts Martial c Summary General Courts Martial and d Summary Courts Martial
959G H 960A 2
Section 116 of the Act says that a summary court martial may be held by the Commanding Officer of any corps or department or detachment of the regular Army and he shall alone constitute the court and that the proceedings shall be attended throughout by two other persons who shall be Officers or junior commissioned officers or one of either and who shall not as such be sworn or affirmed
It is only in the case if general court martial or district court martial that Rule 392 of the Army Rules 1954 is applicable and the Commanding Officer is not competent to convene general or district court martial
960BD 3
In the instant case the summary court martial was held by the Commanding Officer of the Corps Major PS Mahant and there were two other officers Captain KJ Singh and another officer to attend the proceedings
In such circumstances the summary court martial had been convened by the Commanding Officer according to the provisions of the 
960C E F 4
Section 39a of the Act specifies that to be absent without leave constitutes an offence while Section 71e provides dismissal from service as one of the punishments for such an offence
960F 955 5
The appellant in the instant case undoubtedly absented himself from duty without taking any leave from the lines as required under the  was charge sheeted for the said offence and tried by a summary court martial convened by the Commanding Officer
After giving him due opportunity it was held that the appellant was previously punished also for the offence of absence from duty on four occasions and there was a red ink entry
Considering all this in the summary court martial proceedings he was convicted and sentenced to the punishment of dismissal from service
The submission on behalf of the appellant that punishment is disproportionate to the charge is wholly unsustainable
As such the said order of dismissal cannot be challenged as disproportionate to the charge or as one tainted with illegality
It is also evident from the judgment of the High Court that the appellant admitted his guilt of absenting from duty without any leave
960G H 961A BF