| SooperKanoon Citation | sooperkanoon.com/378292 |
| Subject | Criminal |
| Court | Karnataka High Court |
| Decided On | Jan-24-1978 |
| Judge | N.R. Kudoor, J. |
| Reported in | 1978CriLJ1367 |
| Appellant | Sangappa |
| Respondent | State of Karnataka |
N.R. Kudoor, J.
1. This petition is one under Section 439 of the Cr. P.C., 1973 (Act 2 of 1974) (hereinafter referred to as the 'new Code') by the petitioner Sangappa who is A-l in Sessions Case No. 46 of 1977 on the file of the Sessions Judge, Bidar, for admitting him to bail during the pendency of the Sessions trial.
2. The few facts relevant for the disposal of this petition may be stated as under:
3. Deceased Baburao is the younger brother of the petitioner. They belong to Jaknal village of Aurad Taluk in Bidar District. There was enmity between the petitioner and the deceased on account of the partition of their family properties. On 16-6-1977 between 4 and 5 p.m., the petitioner and 8 others formed themselves into an unlawful assembly with the common object and preplanned intention to commit the murder of Baburao, attacked him in the nala of Jaknal village with sickles, axes and sticks and inflicted fatal injuries. The occurrence in question is said to have been witnessed by Joteppa the father of the deceased and two others, by Vaijinath and Nagashetty. Shamarao, who is the dalapathi and police patil of Jaknal village, on hearing hues and cries from the scene of occurrence, ran towards the nala along with other villagers. He saw about 10 to 12 persons attacking a person fallen on the ground with weapons and by the time he reached the place of occurrence, the assailants ran away with the weapons. On reaching the spot, he found Baburao lying dead with multiple injuries. He proceeded to Aurad Police Station which is about 12 miles away from the village and lodged a complaint at about 9 p.m. on the same day. A case was registered by the Aurad Police and F.I.R. was submitted to J. M. F C's Court at Aurad which reached the Court at 4-20 a.m. on 17-6-1977. After completing the investigation, the police have filed a charge-sheet against the petitioner and 8 others for offences punishable under Sections 143, 147, 148. 394, 302 read with 149 and 120-B of the I.P.C. The case is committed to the Court of Session at Bidar where it is pending trial.
3A. The petitioner and two others filed an application for bail in Misc. Case No. 34 of 1977 before the learned Sessions Judge. The learned Sessions Judge, rejected the bail application by recording a considered order on 17-12-1977. Being aggrieved by the said order of the learned Sessions Judge, the petitioner has filed this petition for admitting him to bail on the same grounds on which he and two others moved the Sessions Judge for bail.
4. The State has filed written objections opposing the bail.
5. Shri M. M. Jagirdar, learned Advocate appearing for the petitioner, made a two-fold submission. His first submission is that the scope and ambit for granting bail under Section 439 of the new Code is wider than that under the provisions of the Cr. P.C. 1898 (hereinafter referred to as the 'old Code') and the provisions of Section 437 of the new Code are of no consideration for the High Court and the Court of Session while granting bail under Section 439 of the new Code. The second leg of his submission is that the petitioner is entitled for bail on merits for more than one reason. I shall deal with these contentions in the order in which they are formulated during the course of the arguments.
6. Now coming to the first submission, I shall refer to the relevant provisions of both the Codes. Section 437 of the new Code provides for granting bail in the case of non bail able offence by a Court other than the High Court or the Court of Session, It is provided therein that when any person accused of or suspected of the commission of any non bail able offence is arrested or detained without warrant by an Officer-in-Charge of a Police Station or appears or is brought before the 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. However, it makes an exception under the first proviso that any person under the age of 16 years or any woman or any sick or infirm person accused of such an offence may be released on bail.
7. Section 439 of the new Code provides for special powers of the High Court or Court of Session regarding bail. It reads as follows:
439. Special powers of High Court or Court of Session regarding bail:
(1) A High Court or Court of Session may direct:
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437 may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
2. A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
8. For a proper consideration of the point at issue as to whether the provisions of the new Code have widened the scope and ambit of the power of the High Court and the Court of Session for granting bail, a reference is made to the provisions of Sections 497 and 498 of the old Code. Under Section 497 (1) of the old Code, the High Court and the Court of Session are not excluded from the purview of the word 'Court'. In other respects, dealing with the powers of the Courts in granting bail in a non bail able offence, there is no change in the provisions of Section 497 (1) of the old Code and Section 437 (1) of the new Code. Section 498 of the old Code deals with the power of the High Court and the Court of Session in granting bail and reduction of bail. It reads thus:
498. Power to direct admission to bail or reduction of bail:
(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 Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a Police Officer or Magistrate be reduced.
(2) A High Court or Court of Session may cause any person who has been admitted to bail under Sub-section (1) to be arrested and may commit him to custody.
9. The question for consideration is whether the change brought about in the provisions of Section 437 (1) of the new Code excluding the High Court and the Court of Session from the word 'Court' has made any remarkable change in the powers of the High Court and the Court of Session in granting bail under the provisions of the new Code from that of the old Code.
10. It was contended by Shri M. M. Jagirdar, learned Counsel for the petitioner, placing reliance on a Division Bench decision of the High Court of Calcutta in Re. Sasti Charan Mondal reported in 1974 (2) Cri LJ 1326 that the powers of the High Court and the Court of Session under Section 439 of the new Code remain untrammelled subject only to the proviso to Section 439 (1) (b) unlike the provisions of the old Code wherein the provisions contained in Section 497 (1) constituted 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 bail able offence under Section 498 of the old Code. According to him, the provisions of Section 437 (1) of the new Code would not constitute one of the relevant considerations for granting bail by the High Court or the Court of Session under Section 439 of the new Code. In support of this above submission, he placed reliance on the following observations contained in the decision of the High Court of Calcutta in re. Sasti Charan Mondal 1974 Cri LJ 1326 : (at p. 1329):
Applying 'the principle of intent and that of meaning' to the relevant provisions relating to bail in the old Code as well as in the new Code, we ultimately hold that the provisions contained in the Cr. P.C., 1973 (Act II of 1974) clearly extend the periphery of the powers of the High Court to grant bail in a case involving an offence punishable with death or imprisonment for life or imprisonment for a term of seven years or more....The provisions of Section 437 of the new Code, unlike those of Section 497 (1) of the old Code, do not constitute such a relevant consideration....The pith and substance of the said provisions is that the High Court or a Court of Session may direct any person accused of an offence and in custody to be released on bail; and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section. The provisions of Section 439 (1) (a) for imposing conditions in cases involving offences of the nature as specified in Section 437 (3) are again discretionary and do not, control in any way the overriding powers of the High Court or the Court of Session to grant bail....The provisions are not, therefore, by and large, the same as urged by the learned Deputy Legal Remembrancer; the differences are marked and material, sticking out for miles.
11. I am of the view that the change in the provisions contained in Section 437 (1) of the new Code excluding the High Court and the Court of Session from the word 'Court' has not brought about any material change of far-reaching consequence in the powers of the High Court and the Court of Session in granting bail under the provisions of the new Code from that of the provisions of the old Code. A comparative reading of the provisions of Sections 497 (1) and 498 of the old Code and Sections 437 (1) and 439 of the new Code would clearly demonstrate that the provisions of Section 437 (1) of the new Code do constitute one of the relevant considerations among several others in the judicial exercise of the powers of granting bail by the High Court and the Court of Session as Section 497 (1) of the old Code constituted one of the relevant considerations for granting bail under the old Code.
12. It is true that the words 'a Court' occurring in Section 497 (1) of the old Code are not qualified in any way to rule out the High Court or the Court of Session. In the proviso thereunder, the words used are 'the Court'. Again the words 'the Court' used under the proviso also do not in any way rule out the High Court or the Court of Session. However, the power of the High Court and the Court of Session granting bail was provided under Section 498 (1) of the old Code. The power of granting bail by the High Court and the Court of Session under Section 498 (1) of the old Code was 'in any case', thereby meaning without reference to any kind of offence. There is no reference to Section 497 (1) in Section 498 (1) of the old Code which gives power to the High Court and the Court of Session to admit an accused person to bail in any case. There is no indication in the provisions of Section 498 that it is controlled or qualified by the provisions of Section 497 (1) of the old Code while granting bail by the High Court or the Court of Session. Even though the word 'Court' used in Section 497 (1) of the old Code does not exclude the High Court or the Court of Session, it is held in a catena of decisions that the provisions of Section 497 (1) of the old Code do not in terms control or qualify the provisions of Section 498 but the same, nonetheless constitute 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 bail able offence where there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life. In Section 497 (1) of the old Code, the word 'Court' is used without any qualification whereas in Section 437 (1) of the new Code, the word 'Court' is specifically referred to the Court other than the High Court or the Court of Session. So far as the powers of the High Court and the Court of Session for granting bail, the same is found elsewhere both in the old Code as well as in the new Code which are controlled or unqualified without any reference to the limitations imposed either under Section 497 (1) of the old Code or under Section 437 (1) of the new Code. Courts have interpreted that the provisions of Section 497 (1) of the old Code do not in terms control or qualify the provisions of Section 498 of the old Code even though the word 'Court' used in Section 497 (1) does not exclude the High Court or the Court of Session. Nonetheless it is held that the provisions of Section 497 (1) of the old Code do constitute one of the relevant considerations amongst several others while granting bail. The only change that is brought about in the provisions of Section 437 of the new Code is that the word 'Court' used in Section 437 (1) is made specifically clear that it does not include High Court or the Court of Session thereby making it very plain that Section 437 of the new Code in terms does not control or qualify the provisions of Section 439. The change brought about in Section 437 (1) of the new Code, in my view, has only set at naught the ambiguity of the word 'Court' used in Section 497 (1) of the old Code and it has no bearing as to the powers of the High Court and the Court of Session in granting bail either under the provisions of the old Code or under the provisions of the new Code. The powers of the High Court or the Court of Session under Section 439 are considerably wider than the powers of the Magistrate in Section 437. for the reason that the limitation in Section 437 and the distinction drawn between non bail able offences punishable with death or life imprisonment and other non bail able offences with lesser penalty are non-existent in Section 439, nor is there the condition that bail shall be refused if there appear reasonable grounds for believing that the accused has committed an offence falling under the first category. The discretion therefore, in Section 439 is wholly unfettered and is wide enough to allow bail in any case even when charged with non bail able offence of a most serious character. The powers given in Section 439 are unfettered by any limitation other than that which controls all discretionary powers vested in a Court. Though the discretion is absolute and unfettered by restrictions of any kind, like all discretionary powers, it has to be exercised judicially and on well-established principles. Therefore, though the discretionary power under Section 439 is much wider than in Section 437 (1) and is uncontrolled by the latter, the reasonable limitations in Section 437 (1) which are founded upon a rule of prudence ought not, ordinarily to be departed from by the High Court or the Court of Session except in special cases. The provisions of Section 437 (1) of the new Code like those of Section 497 (1) of the old Code, in my view, do constitute 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. For these reasons. I am unable to agree with the view expressed by the High Court of Calcutta in re. Sasti Charan Mondal (1974 (2) Cri LJ 1326) that the provisions of Section 437 of the new Code unlike those of Section 497 (1) of the old Code do not constitute 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 where there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment of life.
13. The Supreme Court in State v. Jagjit Singh : [1962]3SCR622 has laid down various considerations that have to be taken into account while granting bail under Section 498 of the old Code in a non bail able offence such as nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, the reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public or the State and similar other considerations, which arise when a Court is asked for bail in a non bail able offence. In my view, the above considerations are quite relevant even under Section 439 of the new Code while considering the bail petition in a non bail able offence where there appear reasonable grounds of believing that the accused has been guilty of an offence punishable with death or imprisonment for life. The Court in M. P. Jayaraj v. State of Karnataka reported in 1977 (1) Kant LJ 304 : 1977 Cri LJ 1724, took the same view. In the said decision, after referring to the decision of the Supreme Court in State v. Jagjit Singh : [1962]3SCR622 , D. B. Lall. J. has observed thus (at p. 1725 of 1977 Cri LJ):
In my opinion, the ratio of that decision is, that the test of 'reasonable ground' as laid down in Section 437, Cr. P.C., having been satisfied and the person found guilty of an offence punishable with death and imprisonment for life, even then something more is required to be satisfied before he can be released on bail. It cannot be stated that the power of the High Court is unfettered and even if no additional grounds are made out, bail should be granted as a routine. Had it been so, every accused instead of going to the Magistrate for grant of bail would come straight to the Sessions Court or the High Court. That would rather render Section 437 defunct, at any rate, in most of the cases leaving those in which the accused is infirm, a minor or a woman. That could not be the intention of the legislature.
14. The scope and ambit of the power of the High Court and the Court of Session to grant bail under the new Code has come up for consideration before the Supreme Court in Gurucharan Singh v. State (Delhi Administration) AIR 1978 SC 179 : 1978 Cri LJ 129 in which the Supreme Court held thus in para 24 of its judgment:
Section 439 (1), Cr. P.C. of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437 (1) there is no ban imposed under Section 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 that 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 thawing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439 (1), Cr. P.C. of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both 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 fleeing from justice; or repeating the offence; of jeopardising his own life being 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 factors, cannot be exhaustively set out.
15. In view of the above discussion, I hold that there is no substance in the first contention urged by Shri M. M. Jagirdar, for the petitioner.
16. Now coming to the second submission on the merits of the petition. Shri M. M. Jagirdar, has urged two grounds. His first ground is that the evidence collected against the petitioner is very meagre and it does not afford reasonable grounds for believing that the petitioner has been guilty of an offence punishable with death or imprisonment for life. His second ground is that the petitioner is entitled for bail on the ground of illness.
17. As regards the first ground, Sri Jagirdar submitted that the first information report given by Shama Rao, the police patil of the village, does not refer to any of the accused including the petitioner specifically. A reading of the F.I.R. would indicate that the petitioner is implicated in the case only on suspicion on the ground that there was enmity between him and the deceased. According to the prosecution, the police patil who lodged the F.I.R. is not a witness to the occurrence. According to him, on hearing hues and cries from the scene of occurrence, he along with others, ran towards the nala. At that time, he saw about 10 to 12 persons attacking a person fallen on the ground and by the time he reached the place of occurrence, the persons who were attacking ran away with the weapons. He has stated in his report that there was ill-will between the deceased and the petitioner and it was likely that the petitioner and his followers might have done the deceased to death. Therefore, even according to the prosecution, the police patil was not an eye-witness to the occurrence and from his own showing, he could not have identified the accused as, by the time he reached the spot, the accused had run away from the place of occurrence. There are three eye-witnesses according to the police investigation. One of them is Joteppa, father of the petitioner and the deceased. The two other eye-witnesses are Vaijinath and Nagashetty. It is not disputed that the statement of these witnesses implicate the petitioner as well as the other accused in the alleged crime, The Sub-Inspector of Police reached the scene of offence on 16-6-1977 itself. He questioned the three eye-witnesses referred to above on the night of 16-6-1977 and recorded their statements before the inquest which was held on the following day i.e. 17-7-1977.
18. It was argued by Sri M. M. Jagirdar that the three eye-witnesses were questioned at the inquest on 17-6-1977 and their statements show that they have not spoken about the presence of the petitioner and the other accused. It must be noted that all the three eyewitnesses were questioned and their detailed statements were recorded on the night of 16-6-1977 and they were again examined at the inquest and at that time a note has been made by the investigating officer that the statement of those witnesses had been recorded in detail earlier. That being so, it was likely that a brief statement of these witnesses has been recorded at the inquest in continuation of their previous statement recorded earlier in detail.
19. Shri M. M. Jagirdar has also argued placing reliance on the certified copy of the order sheet produced in C. C. No. 569 of 1975 on the file of J. M. F. C. Aurad, that the petitioner could not have been present at the scene of offence and as such, the allegation against him is false, C. C. No. 569 of 1975 is a criminal case against the deceased and some other in which the petitioner was charge-sheet witness No. 1, It is noted in the order sheet dated 16-6-1977 that C. Ws. 1 to 5 were present. They were ordered to be bound over to 17-6-1977 as the Court's time was over. On the basis of this document, it was argued that the petitioner was at Aurad till the Court's time was over and such, he could not have been present at the scene of occurrence which is about 12 miles from Aurad between 4 and 5 p.m. on 16-6-1977. It is stated in the objections that the petitioner has not signed the order sheet whereas the remaining 4 witnesses had signed. It is seen from the order sheet that a note has been made by the Presiding Officer to bind over C. Ws. 1 to 5. If the petitioner was present when the case was finally adjourned, he would not have failed to affix his signature to the order sheet as the other witnesses did. This circumstance would go to show that the petitioner would not have been present when the case was ultimately adjourned for the day, It is not contended on behalf of the petitioner that the statements of the three eye witnesses, if accepted, would not afford reasonable grounds for believing that the petitioner has been guilty of am offence punishable with death or imprisonment for life. Thus, I do not see any force in the submission that the material collected by the investigation against the petitioner is meagre and does not in any way connect him with the alleged offence of murder.
20. The only other ground urged in support of the petition is the illness of the petitioner. This ground of illness was urged before the learned Sessions Judge by means of a separate application after the bail petition was presented, when he was admitted to the District Hospital at Bidar for treatment. The learned Sessions Judge has called for a report from the District Surgeon, Bidar. It is seen from the said report that the petitioner was admitted to the District Hospital on 7-11-1977 for treatment. The petitioner is stated to have informed the doctor that he was suffering from diabetes since two years and from chest pain since six months. On examination of the petitioner, the District Surgeon found that he was having moderate to severe degree of diabetes and moderate degree of blood pressure. He was also having mild ischaemic heart disease as revealed by the E. C. G. Having so stated about the illness of the petitioner, the Medical Officer has stated in his report that the petitioner required constant medical supervision and follow up. He requires further investigation viz. Blood glucose tolerance test and if that test confirms moderate to severe degree of diabetes, he has to take insulin injections daily depending upon the examination of urine for sugar. He closed his report by saying that it is better that the petitioner is treated in a big institution like District Hospital or Medical College Hospital and the disease may worsen if he is kept in jail without proper medical supervision and treatment daily.
21. Admittedly, the petitioner was admitted to the District Hospital at Bidar for treatment. The opinion of the doctor is that the petitioner should be treated in a big institution like District Hospital or Medical College Hospital. His report does not reveal that the District Hospital at Bidar does not have the facilities or expertise to treat the petitioner for his ailment. The diseases of diabetes and blood pressure, now a days, are common diseases. It is seen from the order of the lower court that a submission was made on behalf of the State that in the District Hospital at Bidar, there are post-graduate surgeons and post-graduate doctors in medicine. Further, the District Hospital at Bidar is a well-equipped hospital with all amenities for treating the disease of diabetes and blood-pressure. No contra statement was made at the time of argument on behalf of the accused before the court below. Thus, it cannot be said that there are no proper facilities in the District Hospital at Bidar for treating the illness of the petitioner. In fact, he has been admitted to the said hospital and he is treated there. It is not the case of the petitioner that the jail authorities, in whose custody he is at present, have neglected to provide necessary medical aid to him. On the other hand, they have taken prompt action in getting the petitioner admitted to the District Hospital at Bidar for treatment. It is not every sickness or infirmity that entitles a person to be enlarged on bail. The nature and seriousness of the sickness or infirmity, the suitability or otherwise of the remand to jail custody and the availability of the necessary medical treatment and reasonable amenities have to be taken into consideration along with other circumstances before granting bail on the ground of illness. On the basis of the material available in the case, I do not see that the illness of the petitioner is such that he is entitled for bail only on that ground in the circumstances of the case.
22. From the order of the court below, it is seen that the case is ripe for trial. In fact, the case was posted for framing charges on 21-12-1977. The learned Sessions Judge, in the course of his order has observed that the trial of the case would be expedited. That being so, there may not be any apprehension for the petitioner that the trial of the case would be delayed or protracted.
23. In the result, for the reasons stated supra, I see ho merit in this petition. Accordingly, it is dismissed.