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TMI Blog1982 (8) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... as a chequered history. A complaint was filed by the Income-Tax Department in 1974 against the concerned accused and 22 others, for the offences punishable under Sections 193, 199, 183 and 120B of the Indian Penal Code, on the ground that they attempted to convert their black-money into white money by nefarious means of cross word puzzle. Some of the accused, including the concerned accused, were detained either under MISA or COFEPOSA. Quite often, some of them remained absent and the proceedings could not be started. So, it is a fact that till August, 1982, the case has not started at all. It is a matter of record that on various adjournments, the concerned accused remained present. It is also a matter of record that sometimes when the accused remained absent request for exemption from his attendance in Court was once or twice granted. It is also a matter of record that due to his absence, the Court was required to issue non-bailable warrants, and even in spite of that, he could not be arrested or even brought before the Court, and ultimately the last non-bailable warrant, which, according to the record, is the fifth in number, was issued on 27-7-1982, and on the strength of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate has committed an error in granting bail to the concerned accused even in spite of the fact that due to the absence of the concerned accused and some of the other accused throughout the period of seven years, the case did not proceed at all. The learned Magistrate, in his impugned order has observed making reference to some facts on record. Accused No. 23 Haribhai Vallabhbhai had presented himself before the Court after remaining in jail for one day, and thereafter he was released on bail of Rs. 5,000/- as cash security by an order dated 27-5-1982. In para 5 he has specifically observed that the concerned accused and his wife Manekben accused No. 14) were not remaining present before the Court. On 28-7-1982 application on behalf of both the accused was given to cancel the non-bailable warrant against them. He has referred to the order passed for Manekben. 7. After considering the arguments, the learned Magistrate observed that there are about 22 other accused in the case. Others are on bail. There is allegation of an attempt to convert black money of Rs. 48 lakhs to white money, and it is stated that the concerned accused is involved for an amount of Rs. 8 lakhs. He also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to principles. Along with that, it cannot be ignored that this is a bailable offence. Every person accused of a bailable offence has a right to be released on bail and it is the duty of the Police Officers as well as the Court to release the person accused of a bailable offence on bail and not to detain him. This requirement, so far as the present case is concerned, was completely fulfilled by the Court, when after the complaint was filed on 27-3-1974, the Court of the Metropolitan Magistrate had issued bailable warrant for Rs. 1,500/ for the concerned accused directing the Police at Daman to take surety bond from him for an amount of Rs. 1,500/- with an undertaking that he would remain present before the Metrapolitan Magistrate, 10th Court, Ahmedabad on 15-4-1974, etc. So, apparently bail was granted because this was a bailable offence and the concerned accused had to remain present in Court on the strength of the undertaking given. Thereafter, because the concerned accused did not remain present, warrants were issued. 11. Extract from the Rozname is produced before me that out 19-9-1978 as the concerned accused was absent, non-bailable warrant was issued. Thereafter, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submission that in the first week of November, 1980, order to detention under the COFEPOSA was issued by Government of Gujarat and therefore, the concerned accused had to file a writ petition in the Calcutta High Court challenging the said order, and by an order of the Calcutta High Court he was directed to stay at his given address at Calcutta, and this order was passed on 8-11-1980 and 11-12-1980 and, therefore, he could not go out of Calcutta. Thereafter, it is the case that the concerned accused was arrested by the Government of Goa, Daman Diu under the COFEPOSA on 8-4-1982 and was detained at Aguada (Goa) Central Jail. Thereafter the Advisory Board constituted under the COFEPOSA by its order dated 30-5-1982 directed the concerned accused should be released from Aguada (Goa) Central Jail. But as the concerned accused was to be detained under the Detention order passed by Government of Gujarat, the wife of the concerned accused moved the J.C's. Court of Goa, Daman and Diu at Panaji under Article 226 of the Constitution and obtained a stay order. However, the Judicial Commissioner of Goa, Daman and Diu directed the concerned accused not to leave Daman, and accused No. 14 (wife of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Criminal Procedure, 1898 (hereinafter referred to as "the Old Code") under Sec. 439 read with Section 435. It has been observed that although revisional power of the High Court under Sec. 439 read with Section 435 is as wide at the power of the Court of appeal under Section 423 of the old code, it is now well settled that normally the jurisdiction of the High Court under Sec. 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error in a point of law which has consequent resulted in flagrant miscarriage of justice. In spite of the wide language of Section 435, the High Court is not expected to act under Sec. 435 or Section 439 if it is hearing an appeal. It is further observed that where neither in trial Court nor the sessions Court committed any error of fact or law is arriving at their conclusions and the High Court upset their concurred findings in exercise of the revisional jurisdiction and acquitted the accused the order of acquittal passed by the High Court was set aside. It should be noted that this was a case where the question of acquittal of a person on evidence on record and appreciation of that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alty thereof under sec. 446." 16. Now, in this sub-sec. (2) of sec. 436 of the new code, if a person failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, and if on a subsequent occasion in the same case the accused appears before the Court or is brought in custody, any such refusal would be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof. So, this provision is brought in help by the prosecution to show that even for a bailable offence under Section 436(2) of the new code, powers of the Court to refuse to release a person on bail would be there. 17. Now, it is a fact that so far as the bond about the concerned accused is there, it is the bond executed by him on 8-11-1974 assuring to attend the Court on 15-4-1975. Question, therefore, would be whether after he had attended the Court in pursuance of that bond, whether recourse to the condition of that bond can be taken. Now, in the bond, over and above appearing before the Court on 15-4-1975, there is also an undertaking that he would remain present on all occasions so long a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, which is pending at the commencement of this code, shall be dealt with and disposed of in accordance with the provisions of this code." It is, therefore, the submission of Mr. Thakore that as the complaint was filed before the date on which the new code came into force, then any appeal, application, trial, inquiry or investigation pending shall be disposed of according to the old Code. 20. Now, it is not the case that there was any application pending pertaining to the release or non-release of the concerned accused when the new code came into force. But in order to show that there is a vested right, Mr. Thakore relied on the Full Bench decision of this Court in Hiralal Nansa Bavsar v. State of Gujarat, 15 Gujarat Law Reporter 725, wherein the question before this Court was as to what procedure should be adopted for an appeal, and it was considered that the right of appeal is a substantive right and not a procedural one. Right of appeal is a vested right and the said right vests from the day of commencement of the proceeding as an appeal is considered as a continuation of the proceeding. This Court further considered that the new code came into force from 1-4-1974, repealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the extent of permitting the accused to remain absent depriving the court of its power to force his attendance by refusing the bail? Therefore it cannot be said that if under the old code a person is released on bail under a bailable offence and he does not remain present at the time when the provision of Section 436(2) of the new Code are available, that jurisdiction cannot be invoked and that the accused would be permitted to claim that he has a vested right to remain absent even in spite of his having given an undertaking, because he has given an undertaking in a bailable offence when the new code was not available. Now, even though I have touched this point because it was argued at length, according to the accepted principles under the old code, the High Court is not devoid of any jurisdiction to deny bail to a person if he is not facilitating proper conduct of the case before the Court. 23. At this stage it would be worthwhile to refer to the provisions of Section 498 of the old Code. It is as follows :- "498. (1) The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w there is no doubt that the 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 sec. 498(1). The result is that with regard to a class of cases of bailable offences falling under sec. 498(1) 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. So, even under the old code power was there to practically cancel the bail under sec. 498(2) of the old code. Of course, that section in the old code does not refer to chapter, as in Section 439(2) of the new code but a person admitted to bail under sub-sec. (1) of sec. 498. There is of course scope to consider whether Section 498(2) refers to all cases where an accused is admitted on bail or only those cases where the bail is granted by the Sessions Court or the High Court. Though, of course, accused Talab was released on bail by the Chief Presidency Magistrate and the High Court cancelled the order under sec. 561A of the Old Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the appeal filed by Talab Haji Hussain was dismissed, to which I have already made reference. 25. Mr. H. K. Thakore, however, wanted to submit a distinguishing feature in the case before the Bombay High Court and the Supreme Court. There were two possibilities. One was that the accused before the High Court and the Supreme Court was attempting to tamper with the evidence, and secondly, there was likelihood of his jumping out the bail and going away abroad. But in both the cases the main consideration before the Court was the conduct of the trial in a fair way. It may be impeded by winning over the witnesses or impeded by the accused remaining consistently absent thus depriving the court of the trial at all. The Supreme Court in para 6, to which I have made some reference, has observed : ...There can be no more important requirement of the ends of justice than the uninterrupted progress of a fair trail; and it is for the continuance of such a fair trail that the inherent powers of the High Court are sought to be invoked by the prosecution in cases where it is alleged that the accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r occasion they remained absent and thus the conduct of the trial is delayed. It is apparent that the prosecution case, as argued by Mr Mehta, is that the concerned accused is practically the leader of all the other accused. Experience in Court shows that if all the accused are on bail, then proceedings are delayed by absence of one or the other accused, and the court cannot proceed with the trial in absence of any of the accused if exemption is not requested and granted. But if one of them is in jail, especially a person like the concerned accused then those who are concerned with him will see that the trial is taken up speedily and will remain present and by that the progress of the case will not be impaired. This is one of the considerations which has to weigh with the Court. 27. It was also submitted that as stated by the concerned accused, he was detained in Aguada Jail. The Customs authorities from Gujarat were waiting to receive him or rather, to put it correctly, arrest him. Instead of coming by the front door, it is the allegations that he escaped by the back door. It was streneously argued by Mr. Thakore that it was at the sweet will of the concerned accused either to g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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