ORDER
Jagjit Singh, J.
1. By his order dated May 18, 1974, the Sessions Judge, Delhi, admitted Vipin Kumar Jaggi to bail on his furnishing two sureties in the sum of Rupees 10,000/- each and executing personal bonds for the like amount. For getting the order of the learned Sessions Judge, Shri F. S. Gill, set aside the present petition was filed on behalf of State.
2. On September 28, 1973, F. I. R. No. 571 was registered in Police Station, Kamla Market, Delhi. That was on the report lodged by Inder Singh Rana, Cashier of the Union Bank of India,. Chandni Chowk, Branch, After investigation a police report or Challan was submitted on April 25, 1974. Earlier to that date an incomplete report had also been. submitted.
3. According to the police report: or the challan five persons, namely, Shawar Khan, Boby alias Sunil Batra, Ravi Kapur, Hariit Singh and Vipin Kumar Jaggi had entered into a criminal conspiracy and were responsible for dacoity committed on September 28, 1973, when-, after murdering the gun-man of the Union Bank of India van No. DHB-768 and seriously injuring the driver of that vehicle two cash boxes containing currency notes of the value of six lakhs rupees were, taken tway. The gun-man was Shri;. Bansi Ram and the driver of the van was Shri Ram Niwas Sharma. The driver also died on October 4, 1973, in Irwin Hospital.
4. Harjit Singh having been tendered pardon on the condition of his making a full and true disclosure of the whoever of the circumstances within his knowledges1 relating to the offence and to every other person concerned in the commission-there of, names of Shawar Khan, Sunil' Batra, Ravi Kapur and Vipin Kumar Jaggii. were shown in the Police report as the accused in custody. Another person, named Shri Kishan Dawar, was also shown as an accused on bail but against him the allegations were only of dishonestly receiving property stolen in the-commission of a dacoity and assisting iru concealment of stolen property, under Sections 412 and 414 of the Indian Penal Code. Against the other accused the alleged offences were under Sections 302, 396, 397, 398 and 120-B of the Indian. Penal Code.
5. Before the learned Sessions.-Judge the bail application on behalf of Vipin Kumar Jaggi, to be hereinafter called for facility of reference as Jaggi, was pressed on two grounds. It was urged that by virtue of the provisions of proviso (a) to Sub-section (2) of Section 16? of the Code of Criminal Procedure, 1973. (hereinafter referred to as 'the new-Code'), no Magistrate could pending investigation authorise detention of an accused person in custody, otherwise than in custody of the Police, beyond a total period exceeding sixty days and on the expiry of the said period of sixty days--the Magistrate had no option but to release the accused if he was prepared and did furnish bail. The Magistrate having refused to grant bail it was submitted, that the Sessions Court should admit Jaggi to bail. The other contention raised was that the facts of the case indicated that Jaggi had been falsely implicated and the evidence collected during investigation did not connect him with the alleged crime.
6. It is an undisputed fact that the investigation relating to F. I. R. No. -571 dated September 28, 1973, in connection with the alleged dacoity involving .six lakes rupees and murders of the gun-man and the driver of Union Bank of India van, was pending when the new Code came into force with effect from April 1. 1974. The Code of Criminal Procedure, 1898 (hereinafter referred to as' the old Code') was repealed by sub-sec-lion (1) of Section 484 of the new Code. Sub-section (2) of the said Section 484, inter alia, provides that notwithstanding the repeal if, immediately before the date on which the new Code comes into force, there is any appeal, application, trial, inquiry or investigation pending, then, such appeal, application, trial, inquiry or investigation shall be opposed of, continued, held or made, as the case may be, in accordance with the provisions of the old Code, as in force immediately before the coming into force of the new Code, as if the new Code had not come into force. The proviso to Clause (ai of subsection (2) of Section 484 further provides as follows:
Provided that every inquiry under Chapter xviii of the Old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code.
7. At this stage reference may also be made to the relevant portion of Section 167 of the new Code:
167. (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57; and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may/whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
provided that-
(a) the Magistrate may authorise detention of the accused person, otherwise than in custody of the (police, beyond the period of fifteen days if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this section for a total period exceeding sixty days, and on the expiry of the said period of sixty days, the accused person shall be released on bail if he is prepared to and does furnish bail; and every person released on bail .under this section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;The learned Sessions Judge took the view that when the investigation in the case had commenced under the old Code and was pending when the new Code came into force it was not obligatory to follow the provisions embodied in proviso (a) to Sub-section (2) of Section 167, but even then matters regarding grant of bail, should be considered more liberally. In that connection it was remarked by him as under:In my view, it is not an obligatory provision which should be followed, when the investigation was under the old Code, but the intention of the legislature seems to be that the grant of bail be more liberally considered in view of the provisions embodied in Section 167 (2)(a) of the Criminal Procedure Code (1973).
8. Regarding the circumstances of the present case it was mentioned in the order of the Sessions Judge that the F. I. R. Shri Inder Singh Rana had mentioned the number of accused persons to be four. In an extra-judicial confession said to have been made by Harjit Singh to one Earnest D'Cruz, the name of Jaggi was not given. In the inquest report prepared by the police on the 28th September and the 4th October, 1973, as well only four person^ were stated to have committed the crnBe. No recovery of any amount was effected from Jaggi. Before Harjit Singh was made an approver he had submitted some applications in which he had alleged that he was being coerced by the police to implicate innocent persons.
9. The provisions contained in the old Code and the new Code relating to bail in case of non-bailable offences are not materially different. Under Section 437 (1) of the new Code when a person accused of or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he 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. The first proviso to that sub-section is to the effect that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail, Section 439 provides, inter alia, that a High Court or Court of Session may direct that any person accused of an offence and in custody be released on bail. Almost to the same effect was Sub-section (1) of Section 497 and the latter part of Sub-section (1) of Section 498 of the old Code. The power of the High Court or Court of Session for directing that any person who has been released on bail be arrested and committed to custody is given by Section 439 (2) of the new Code corresponding to Section 493 (2) of the old Code. The provision contained in I proviso (a) to Sub-section (2) of Section J167 of the new Code is a new one.
10. On behalf of Jaggi respondent it was contended by his learned Counsel, Shri D. B. Mukherjea, that the effect of the proviso to Clause (a) of Sub-section (2) of Section 484 of the new Code is that in cases triable by the Court of Session where investigation was pending immediately before the date on which the hew Code came into force, those cases are to be dealt with and disposed of in accordance with the provisions of the new Code and, thereforee, the provisions of proviso (a) to Sub-section (2) of Section 167 of the new Code became applicable to the present case. I am, however, unable to agree with the contention. The .proviso to Clause (a) of Sub-section (2) of Section 484 is only to this effect that every inquiry under Chapter xviii of the old Code which is pending at the commencement of the new Code has to be dealt with and disposed of in accordance with the provisions of the new Code. In the new Code the procedure for commitment of cases to Court of Session has been changed and is now given in Sections 208 and 209. thereforee, even in inquiries which were pending under Chapter xviii of the old Code at the commencement of the new Code the commitment proceedings have to be dealt with and disposed of in accordance with the provisions of the new Code and not by following the procedure given in Chapter xviii of the old Code.
11. By no stretch of imagination, in my opinion, the proviso to Clause (a) of Sub-section (2) of Section 484 of the new Code can imply that where investigation in any case was pending when the new Code came into force the provisions relating to investigation as now contained in Chapter XII of. the new Code, including proviso (a) to Sub-section (2) of Section 167 of the new Code, shall apply. On the other hand, Sub-section (2) of Section 484 of the new Code makes it clear that any investigation pending immediately before the date on which the new Code came into force has to be made in accordance with the provisions of the old Code as if the new Code 'had not come into force'. In the old Code there was no provision that pending investigation, Magistrate could not authorise detention of an accused person, otherwise than in custody of the police, beyond a total period exceeding sixty days and that on the expire of the said period of sixty days the accused person was to be released on bail if he was prepared to and did furnish bail.
The learned Sessions Judge was, thereforee, right in holding that proviso (a) to Sub-section (2J of Section 167 of the new Code did not apply but fell in error when he held that even cases where investigation was pending when the new Code came into force bail matters had to be more Hberally construed 'in view of the Provisions embodied in Section 167 (2) fa) of the Criminal Procedure Code (1973)'.
12. In dealing with the application of Jasgi the Sessions Judge, in spite of his wide powers in the matters of granting bail, should have kept in view that the normal rule is that an accused person should not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Admittedly the case of Jaggi did not fall under the proviso relating to any person under the age of sixteen years or any woman or any sick or infirm person.
Without going into the details and merits of the material on which the prosecution seeks to place reliance during the trial it has to be said that it is not possible to sav that there are no reasonable grounds for believing that Jaggi has not been guilty of an offence punishable with death or imprisonment for life.
13. Harjit Singh approver in his statement recorded by a Judicial Magistrate on the 29th and the 30th March, 1974, attributed to Jaggi active part in hatching the criminal conspiracy which led to the commission of offences of dacoit and murders and according to him was driving the Ambassador car used for stopping the Bank van and after the da-coity and murders in carrying away cash boxes containing six lakes of rupees. After his arrest Jaggi was alleged to have made a disclosure statement in consequence of which keys of the Bank van were recovered. On some portions of a Fiat car of Jaggi some blood stains were alleged to have been found due to the, cash boxes having been transferred that car at some stage. According to the learned Counsel for State some of the prosecution witnesses would be in a position to identify Jaggi as the person who was driving the white Ambassador car used for the commission of the crime.
14. On behalf of the respondent good - deal of stress was laid on the fact that in the First Information Report only four persons were named and so was the case when inquest reports were prepared or the police recorded statements of the persons other than the informant and who were also sitting in the Bank van at the time of the occurrence and escaped alhre. From the other side it was contended that one of the accused had got into the white Ambassador car a little beyond the place of occurrence and, thereforee, only four persons were mentioned by the informant and the other occupants of the Bank van.
15. The statement of Earnest D'Cruz regarding the alleged extra-judicial confession made to him by Harjit Singh was recorded on December 24, 1973. Thus that statement was made lone after the alleged extra-judicial confession. According to the statement of Harjit Singh recorded on the 29th and the 30th March, 1974, he had as ,,well mentioned Jaggi to Shri D'Cruz. At this stage it would not be appropriate to go into the merits and niceties of the statements of either Shri D'Cruz or that of the approver for that may cause prejudice one way or the other. Whether Shri D'Cruz's memory failed or only four other persons were mentioned to him would be a matter for the trial Judge to consider. The non-recovery of any money from the person of one of the alleged co-conspirators were hardly of any consequence. It is not necessary that in every case there may be an immediate and exact division of the bootv. The learned Counsel for State also invited my attention to the fact that one of the documents recovered was an unsigned scheme according to which the five conspirators, including Jaggi, were intending to float a business venture.
16. The effect and implications of the applications that bear the signatures of Hariit Singh and which were submitted before he turned an approver alleging coercion by the police would also appropriately be gone into during the trial, but it seems difficult to say that those applications will necessarily make, the testimony of the approver unacceptable even if it may be found to satisfy the test of reliability and may be corroborated in material particulars.
17. Considering the very serious nature of the allegations against Jaggi and (the fact that yit cannot be said that there are no reasonable grounds for believing that he has riot been guilty of an offence punishable with death or imprisonment for life, it was not a case where the discretion vested in the Sessions Court of granting bail should have been exercised in favor of the said accused. In the State v. Jagjit Singh : [1962]3SCR622 it was observed by their Lordships of the Supreme Court that among other considerations, which a court has to take into account in deciding whether bail should be granted in a non-bailable offence, is the nature of the offence; and if the offence is of a kind in which bail should not be granted considering its seriousness, the court should refuse bail even though it has very wide powers under Section 498 of the Code of Criminal Procedure, 1893. In that case under Sections 3 and 5 of the Indian Official Secrets Act, 1923, pertaining to military affairs of the Government, the accused in the event of conviction could be liable up to fourteen years imprisonment. The order of bail granted by the High Court was set aside., The present case is more serious. The bail granted by the learned Sessions Judge not being justified the order dated May 18, 1974 has to be set aside. The mere fact that after the grant of bail the respondent has not been shown to have misused the privilege of bail is not a sufficient ground by itself, irrespective of other considerations, for not interfering with the order of the learned Sessions Judge.
18. The petition submitted on behalf of State is accordingly accepted and the order of the learned Sessions Judge dated May 18, 1974, releasing Jaggi, on bail, is set aside. Jaggi being present in the Court, should be taken into custody. I shall, however, like to make it clear that nothing in this order shall be deemed to be expression of opinion regarding merits of evidence or any other matters that may have to be considered during the trial of the case against Jaggi and the other accused.