N.C. Talukdar, J.
1. This Rule is at the instance of the accused-petitioner. Swapan Banerjee alias Swapan Kumar Banerjee alias Kumar Swapan, for setting aside an order dated the 21st May, 1971 passed by Shri M. N. Das. Additional Chief Presidency Magistrate, Calcutta and for releasing him on bail.
2. The facts leading on to the Rule can be put in a short compass. The accused-petitioner is one of the nine accused in a case under Section 302/34, Indian Penal Code for the alleged murder of Nepal Roy, M. L. A., on 30-3-71 at 292/6, Upper Chitpur Road. Calcutta. The investigation is still pending and some statements have been recorded under Section 161 of the Code of Criminal Procedure. Four of the accused are absconding. The accused-petitioner who was arrested on 8-4-71 and produced before the learned Additional Chief Presidency Magistrate. Calcutta, was in Police custody and thereafter is in Jail custody since 23-4-71. Prayers for bail made on his behalf on 23-4-71 and 21-5-71 were rejected. The last order has been impugned and forms the subject-matter of the present Rule.
3. Mr. Dilip Kumar Dutt. Advocate (with Mr. Biswanath Sanval. Advocate) appearing in support of the Rule on behalf of the accused-petitioner pressed his prayer for bail firstly on the absence of the accused-petitioner's name in the F. I. R. lodged on the same date. Mr. S. N. Banerjee. D. L. R. appearing on behalf of the State submitted that the informant Balai Chatterjee is not an eve-witness and had informed over the phone immediately after the explosion. We agree with the submission of Mr. Banerjee and hold that in the circumstances the absence of the accused-petitioner's name in the F. I. R. is not by itself clinching. The next plea viz. of alibi as based on a certificate by the Finance Officer and Chief Accountant. Corporation of Calcutta, is also premature and has to be determined in course of the trial. The third and last submission of Mr. Dutt is the absence of any eve-witness and the hardship caused to a permanent employee of the Corporation of Calcutta by the continued detention for about three months. Mr. Banerjee in reply submitted that there are some statements under Section 161 of the Code of Criminal Procedure of persons who have referred to the presence of the accused-petitioner, close to the office of the deceased, before and after the incident on that day. We have gone through the statements and it is difficult for us to agree, at this stage, with Mr. Dutt's submission.
4. Mr. Dutt also raised a further contention which is one of law and of some importance viz... that in any event, the powers of the High Court or the Court of Session to grant bail under Section 498 of the Code of Criminal Procedure are unfettered and unqualified by the considerations contained in Section 497 (1) of the Code of Criminal Procedure with regard to non-bailable offence punishable with death or imprisonment for life. He cited several cases in support of his contention. Mr. Banerjee appearing on behalf of the State joined issue and contended that the provisions of Section 498 of the Code of Criminal Procedure are subject to those of Section 497 (1) of the Code, whereunder bail in a non-bailable offence can only be granted, if there appear reasonable grounds for believing that the accused is not guilty of an offence punishable with death, or imprisonment for life. Several cases were cited by him in this context.
5. A reference to the provisions of Section 498 of the Code of Criminal Procedure brines to light that the said provisions, unlike those in Section 497 (1) of the Code, are not qualified and significantly enough contain the words 'in any case'. The point arising for consideration therefore is whether the use of the aforesaid words vest the High Court or the Court of Session with unfettered or unqualified discretion, or with a discretion qualified by various considerations including those referred to in Section 497 (1) of the Code of Criminal Procedure, It is pertinent therefore to refer to the imprimatur of judicial decisions on the point. Mr. Dilip Kumar Dutt referred in the first instance to the case of K. N. Joglekar, v. Emperor reported in AIR 1931 All 504 (SB) and relied on the observations of the Acting Chief Justice Sulaiman delivering the judgment of the Court at P. 506 that 'It is a mistake to imagine that Section 498 is controlled by the limitations of Section 497. except when there are not reasonable grounds for believing that the accused committed the offence'. Mr. Dutt overlooked the other part of the observations viz... that 'that discretion is unfettered but of course it cannot be exercised arbitrarily but must be exercised judicially. There is no hard and fast rule and no inflexible principle governing such discretion.... It is not any one single circumstance which necessarily concludes the decision, but it is the cumulative of all the combined circumstances that must weigh with the court. The considerations are too numerous to be qualified or catalogued exhaustively'. Some of these considerations have been catalogued in some later decisions, as would be found when we would consider the same. The next case cited by Mr. Dutt is the case of Keshav Vasudeo v. Emperor reported in AIR 1933 Bom 492. Broom-field and Divatia JJ. held at page 494 that 'Having regard to Section 498. it is clear that the power of the Sessions Judge, like the power of the High Court, is unlimited and not fettered, as the discretion of the magistrate is by the provisions of subsection. (1), Section 497'. Their Lordships however provided for an exception in the course of the said judgment as follows : 'Except of course in this sense that the Sessions Judge like the High Court will naturally not grant bail in a case which comes under the clause in question unless there are some good grounds for doing so' and their Lordships thereby referred to the provisions of Sub-section (1) to Section 497 of the Code of Criminal Procedure. The next case relied on is the case of Kripa Shankar v. Emperor reported in AIR 1948 All 26 wherein Mr. Justice Malik (as His Lordship then was) relied on the Special Bench decision in 1931 All LJ 773 : AIR 1931 All 504 and held that 'Section 498 confers upon a Sessions Judge or the High Court wide powers to grant bail which are not handicapped by the restrictions in the preceding section'. The other part of the Special Bench decision was also relied on and adopted by Mr. Justice Malik in the said case as follows : 'That discretion is unfettered but of course it cannot be exercised arbitrarily but must be exercised judicially' and that 'It is the cumulative effect of all the combined circumstances that must weigh with the court.' Mr. Dutt next referred to the case of Mohmood Muzaffar v. State reported in : AIR1963All127 wherein K. B. Asthana J. held that in the matter of granting bail under Section 498 Criminal Procedure Code, the High Court has got a very wide discretion and the exercise of that unfettered discretion is not controlled by the limitations of Section 497. The learned Judge proceeded to observe however that it is not any one single circumstance which necessarily concludes the discretion but it is the cumulative effect of all the combined circumstances that must weigh with the court as a rule of practice and caution. The principles in Joglekar's case reported in AIR 1931 All 504 (S. B.) were relied on. It is abundantly clear from the aforesaid decisions that those do not support the unqualified proposition put forward by Mr. Dutt. The last case referred to by Mr. Dutt is the case of Partap v. State of Rajasthan reported in AIR 1966 Rai 198. In that case Mr. Justice Chhaneani observed at page 202 that in considering bail applications under Section 498 Criminal Procedure Code 'the Court should take into consideration various other circumstance including (i) the nature of the offence alleged to have been committed, (ii) the type and volume of the evidence likely to be produced in court, (iii) the aggravating or mitigating circumstance, if any, under which the offence was committed and (iv) the severity of the sentence that is likely to be awarded'. Besides the aforesaid cases Mr. Dutt also referred to two other cases which were relied on by the learned D. L. R. also viz. the case of Emperor v. Sourindra Mohan Chuckerbutty reported in (1910) ILR 37 Cal 412 and the case of the State v. Captain Jasjit Singh, reported in AIR 1962 SC 253. We shall now proceed to consider the cases cited by Mr. S. N. Banerjee. D. L. R. appearing on behalf of the State. He referred to the case reported in (1910) ILR 37 Cal 412. Mr. Justice Stephen and Mr. Justice Carnduff delivering the judgment of the Division Bench observed at page 416 that 'Our power to grant bail 'in any case' as given by Section 498 of the Criminal Procedure Code is quite unfettered'. Their Lordships however proceeded to observe at pp. 416 and 417 as follows : 'Though we consider that in exercising our discretion we ought to take into consideration the limitations on the Dower of other authorities to grant bail imposed by Section 497.... The former section does not in terms apply to Section 498 of the Code, but we are of opinion that we ought to take its provisions into consideration in the same way as we think we ought to take into consideration those of Section 497'. The next case relied on by Mr. Banerjee is the wellknown case of Lala Jairam Das v. Emperor reported in AIR 1945 PC 94. Lord Russel of Killowen observed at p. 97 that in the Indian decisions Section 498 Criminal Procedure Code seems to have been treated as though it included cases, in which persons already convicted were concerned but that any such view is a misapprehension based upon a mistaken readme of a few words which occur in that section. It was ultimately observed that 'In truth the scheme of Chap. 39 is that Sections 496 and 497 provide for the granting of bail to accused persons before trial and the other sections of the chapter deal with matters ancillary or subsidiary to that provision.... A consideration of Section 496 reinforces the view that Section 498 has no reference to convicted persons'. In the case of Ami ad Sheik v. State reported in : AIR1955Cal141 , Guha Roy and Sen JJ. relied on the principles laid down by the Judicial Committee and observed at page 143 that 'In agreement, therefore with the view taken by the Privy Council we hold that Section 498. Criminal Procedure Code does not really grant to the High Court or the Court of Session a power independent of the earlier sections. What it really does is to extend to the High Court or the Court of Session the power granted under Sections 496 and 497 Criminal Procedure Code, to the trial court'. Mr. Banerjee further referred to the case of Govt. of West Bengal v. Abdul Hakim reported in ILR (1956) 2 Cal 92. Sen and Renupada Mukheriee JJ. followed the decision in Lala Jairam Das's case AIR 1945 PC 94 by the Privy Council and held that the provisions of Section 498 of the Code of Criminal Procedure must be controlled by the provisions of Section 496 of the Code. It was further observed therein that this Court while following the aforesaid decision of the Judicial Committee 'has held in miscellaneous case No. 184 of 1954 that the provisions of Section 498 Criminal Procedure Code are controlled by Sections 496 and 497. Criminal Procedure Code.' A reference in this context may also be made to the case of Public Prosecutor. Andhra Pradesh v. G. Manikva Rao reported in : AIR1959AP639 wherein it was held that the expressions 'may in any case' and 'direct that any person be admitted to bail' occurring in Section 498 Criminal Procedure Code do not enlarge the powers of the court in the matters of granting bail. They only indicate that any accused person can avail himself of that section, whether the case in which he is involved is bailable on conviction or not. The words 'in any case' govern only the language following, viz., whether there be a bail on conviction or not. Mr. Banerjee then referred to the case reported in AIR 1962 SC 253. Mr. Dilip Kumar Dutt relied on the observations of the Supreme Court at page 255 that 'It is true that under Section 498 of the Code of Criminal Procedure the powers of the High Court in the matter of granting bail are very wide'. But he overlooked the other observation made in the said judgment that '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 witness 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'. Mr. Justice Wanchoo (as His Lordship then was) delivering the judgment of the court ultimately observed at page 255 that 'if so where the offence is non-bailable, various considerations such as those indicated above have to be taken into account before bail is granted in a non-bailable offence'. We respectfully agree with the said observations and we hold that the position in law on the point at issue has been fully stated in course of the said observations and any consideration by the High Court or the court of session while exercising its powers of granting bail, short of that will be lone off the mark. The last case relied on by Mr. Banerjee is the case of the State of Gujarat v. Lohana Lakhu Amarshi reported in AIR 1958 Ghi 77. Mr. Justice Shelat observed therein at page 79 that 'But howsoever wide and unfettered discretion in the sessions court or the High Court may be, it cannot ignore the force behind Sub-section (1) of Section 497 of the Criminal Procedure Code when it says that 'he shall not be so released if there appear reasonable around for believing that he has been guilty of 'an offence punishable with death or imprisonment for life' '.
6. We ultimately hold that neither the top wide proposition put forward by Mr. Dilip Kumar Dutt nor the rather circumscribed interpretation made by the learned Deputy Legal Remembrancer, relating to the nature of the powers exercisable by the High Court or the Court of Session under Section 498 Criminal Procedure Code is sustainable, as would be borne out by the imprimatur of judicial decisions referred to above, A balance must be struck between the two and the correct position is a delicate equipoise between the two extreme propositions referred to above, giving effect thereby to the intention of the legislature and conforming to the line of decisions by the different courts. The provisions of Section 497(1) Criminal Procedure Code accordingly do not. in terms, control or qualify the provisions of Section 498 Criminal Procedure Code, taut the same nonetheless constitutes one of the relevant considerations, amongst several others, in the judicial exercise of the powers of granting bail by the High Court or the Court of Session relating to non-bailable offences where there appear reasonable grounds for believing that the accused has (not?) been guilty of an offence punishable with death or imprisonment for life.
7. We accordingly reject the prayer for bail at this stage and discharge the Rule.
A.P. Das, J.
8. I agree.