Ratilal Bhanjl Mithani v. Asstt. Collector of Customs, Bombay, (SC) BS109970
SUPREME COURT OF INDIA

(Larger Bench)

Before:- K.N. Wanchoo, C.J.I., R.S. Bachawat, J.M. Shelat, V. Bhargava and G.K. Mitter, JJ.

Criminal Appeal No. 64 of 1967. D/d. 4.5.1967.

Ratilal Bhanji Mithani - Appellant

Versus

Asstt. Collector of Customs, Bombay and another - Respondent

For the Appellant :- Mr. A. K Sen, Senior Advocate, (M/s. S. G. Sheth and I. N. Shroff, Advocates.

For the Respondent :- Mr. N. S. Bindra, Senior Advocate, Mr. S. P. Nayyar Advocate.

A. Criminal Procedure Code, 1898, Sections 561A and 496 - Constitution of India, Article 21 - Bail - Procedure established by law - Criminal Procedure Code, 1898, Sections 561-A and 496 - Scope of Section 561-A - Cancellation of bail granted under Section 496 of the Code - Inherent powers of High Court preserved by Section 561-A, are vested in it by 'law" within the meaning of Article 21 - Held, order of High Court cancelling bail of accused being tried for bailable offences and depriving him of his personal liberty was according to procedure established by law and was not violative of Article 21.

[Para 10]

B. Constitution of India, Article 136 - Special Leave Appeal - Finding of fact - High Court cancelled the previous bail orders on ground that appellant was intimidating and tampering prosecution witnesses - High Court reserved liberty to appellant accused to apply for fresh order of bail on or after specified date - Non-examination of witnesses - Delay in examination of witness is entirely caused due to laches of prosecution - Finding of fact not to be interfered with but accused directed to be released on bail on that date whether or not prosecution witnesses are examined.

[Para 11]

Cases Referred :-

Talab Haji Hussain v. Madhukar Purshottam Mondkar, 1958 SCR 1226 .

A.K. Gopalan v. State of Madras, 1950 SCR 88 .

M.S.M. Sharma v. Krishna Sinha, 1959 Supp (1) SCR 806 .

King Emperor v. Khwaja Nazir Ahmad. 71 Ind Appl 203 at p. 213 .

JUDGMENT

Bachawat, J. - The appellant along with other persons is being tried for an offence under Section 120B of the Indian Penal Code read with Section 1137 (81) of the Sea Customs Act, 1878. and Section 5 of the Imports and Exports Control Act, 1947. The offence is bailable. The appellant was released on bail under orders of Magistrates, dated May 11, 1960 and April 1, 1961. A large number of witnesses have been examined but the trial has not yet been concluded. By an order, dated March 3/6 1967, the High Court of Maharashtra, Bombay, in the exercise of its inherent jurisdiction cancelled the bail orders and directed him to surrender to his bail. From this order, the present appeal has been filed by special leave.

2. In Talab Haji Hussain v. Madhukar Purshottam Mondkar, 1958 SCR 1226 , this Court held that a High Court has the inherent power to cancel a bail granted to a person accused of a bailable offence where such an order is necessary to secure the ends of justice or to prevent the abuse of process of any Court, and this power is preserved by Section 561A of the Code of Criminal Procedure.

3. On behalf of the appellant it was strenuously argued that this case was wrongly decided. Having heard full arguments, we find no reason for departing from our earlier decision.

4. In the matter of admission to bail, the Code of Criminal Procedure makes a distinction between bailable and non-bailable offences. The grant of bail to a person accused of a non-bailable offence is discretionary under Section 497 of the Code and the person released on bail may again be arrested and committed to custody by an order of the High Court, the Court of Session and the Court granting the bail. Under Section 498 of the Code. the High Court and the Court of Session may release any person on bail and by a subsequent order cause any person so admitted to bail to be arrested and committed to custody. A person accused of a bailable offence is treated differently; at any time while under detention without a warrant and at any stage of the proceedings before the Court before which he is brought, he has the right under Section 496 of the Code to be released on bail. The Code makes no express provision for the cancellation of a bail granted under Section 496. Nevertheless, if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with the prosecution witnesses or is attempting to absconds the High Court has the power to cause him to be arrested and to commit him to custody for such period as it thinks fit. This jurisdiction springs from the over-riding inherent powers of the High Court and can be invoked in exceptional cases only when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody. For the reasons given in Talab Haji Hussain's case, 1958 SCR 1226-(AIR 1958 Supreme Court 376 (supra), we hold that this inherent power of the High Court exists and is preserved by Section 561-A of the Code. The person committed to custody under the orders of the High Court cannot ask for his release on bail under Section 496, but the High Court may by a subsequent-order admit him to bail again.

5. Counsel for the appellant argued that the inherent power of the High Court is not conferred by any legislation or statute and the deprivation of the personal liberty of the appellant by an order of the High Court in the exercise of its inherent powers is violative of the constitutional protection under Article 21 of the Constitution.

6. Article 21 is in these terms:

7. The term 'law' in Article 21 was the subject of an elaborate discussion in A.K. Gopalan v. State of Madras, 1950 SCR 88 , Kania, C. J. at pp. 111113 (of SCR) , said that the term 'law' in that Article must mean the law of the State or enacted law, and not rules of natural justice. Fazl Ali, J. who was in the minority, said at p. 169 (of SCR) , that 'law' must include certain principles of natural justice. Patanjali Sastri, J. at p. 199 (of SCR) , said that 'law-' in Article 21 means 'positive or State-made law'. Mahajan, J. at p. 226 (of SCR) -, expressed no opinion on the point. Mukherjea, J. at p. 278 (of SCR) , said that in Article 21 the word 'law' has been used in the sense of State-made law and not as an equivalent of law in the abstract or general sense embodying the principles of natural justice." Das, J. said at p. 309 of SCR), that "there is no scope for introducing the principles of natural justice in Article 21 and 'procedure established by law must mean procedure established by law made by the State which, as defined, includes Parliament and the Legislatures of the States." As explained by four of the learned Judges in A. K. Gopanlan's case, 19.50 SCR 88 - (supra), the expression 'law' in Article 21 means enacted or State-made law, and not the general principles of natural justice.

8. In M.S.M. Sharma v. Krishna Sinha, 1959 Supp (1) SCR 806 , this Court held that a deprivation of personal liberty of any person by a Legislative Assembly of a State in exercise of its power to punish for its contempt is according to a procedure established by Jaw and does not contravene Article 21. Article 194 (3)of the Constitution provides that "the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committee of a House of such Legislature. shall be such as may from time to time be defined by the Legislature by law, and, until so defined, shall be those of the House of Commons of the Parliament of the United Kingdom, and of its members and committees, at the commencement of this Constitution." Article 194 (3) thus confers on the Legislative Assembly of a State the existing inherent powers enjoyed by the British House of Commons including the power to punish for its contempt. Article 208 (1) empowers the Legislative Assembly to make rules regulating its procedure. As explained in Pandit Sharma's case, 1959 Supp (1) SCR 806 (Supra), these powers and the procedure prescribed by the rules has the sanction of enacted law and an order of committal for contempt of the Assembly is according to procedure established by law. Das. C. J. speaking for four learned Judges said at p. 861 (of Supp SCR) = at 17P 410-411 of AIR) '"Article 194 (3) confers on the Legislative Assembly those powers. privileges and immunities and Article 208 confers power on it to frame rules. The Bihar Legislative Assembly has framed rules in exercise of its powers under that Article. It follows, therefore, that Article 194 (3) read with the rules so framed has laid down the procedure for enforcing powers, privileges and immunities If, therefore, the Legislative Assembly has the powers privileges and immunities of the House of Commons and if the petitioner is eventually deprived of his personal liberty as a result of the proceedings before the Committee of Privileges, such deprivation will be in accordance with procedure established by law and the petitioner cannot complain of the breach, actual or threatened, of his fundamental right under Article 21." Subba Rao, J. in his minority judgment in that case and the Court in Special Reference No.1 of 1964, (1965) 1SCR 413, did not say anything to the contrary on this point.

9. Now the question is whether the inherent power of the High Court is confered by or has the sanction of enacted law. From its very inception, the High Court has possessed and enjoyed its inherent powers including the power to prevent the abuse of the process of any Court within its jurisdiction and to secure the ends of justice. These powers inhere in the High Court and spring from its very nature and constitution as a Court of superior jurisdiction All the existing powers of the High Courts were preserved and continued by legislation from time to time.

10. Section 561A of the Criminal Procedure Code declared that "nothing in this Code shall he 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 passed under this Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice." The section was inserted in the Code by Act XVIII of 1923 to obviate any doubt that these inherent powers have been taken away by the Code. In terms, the section did not confer any power, it only declared that nothing in the Code shall be deemed to limit or affect the existing inherent powers of the High Court. see King Emperor v. Khwaja Nazir Ahmad. 71 Ind Appl 203 at p. 213 . Then came other enactments which were framed differently. Section 223 of the Government of India Act, 1935, provided

The Section enacted that the jurisdiction of the existing High Courts and the powers of the Judges thereof in relation to the administration of justice "shall be" the same as immediately before the commencement of Part III of the Act. 'The statute confirmed and reversted in the High Court all its existing powers and jurisdiction including its inherent powers. Then came the Constitution. Article 225 of the Constitution provides:

The proviso to the article is not material and need not be read. The article enacts that the jurisdiction of the existing High Courts and the powers of the judges thereof in relation to administration of justice "shall be" the same as immediately before the commencement of the Constitution. The Constitution confirmed and revested in the High Court all its existing powers and jurisdiction including its inherent powers, and its power to make rules. When the Constitution or any enacted law has embraced and confirmed the inherent powers and jurisdiction of the High Court which previously existed, that power and jurisdiction has the sanction of an enacted "law" within the meaning of Article 21 as explained in A. K. Gopalan's case, 1950 SCR 88- - (supra). The inherent powers of the High Court preserved by Section 561A of the Code of Criminal Procedure are thus vested in it by "law" within the meaning of Article 21. The procedure for ir-invoking the inherent powers is regulated by rules framed by the High Court. The power to make such rules its conferred on the High Court by the Constitution. The rules previously in force were continued in force by Article 372 of the Constitution. The order of the High court cancelling the bail and depriving the appellant of his personal liberty is according to procedure established by law and is not violative of Article 21.

11. The High Court cancelled the previous bail orders, as it found that the appellant was intimidating and tampering with certain German citizens whom the prosecution intended to examine as witnesses. This finding is challenged by the appellant. Normally , it is not the practice of this Court to re-examine findings of fact in an appeal under Art 136 of the Constitution. Having heard full arguments, we are not inclined to interfere with the findings of the High Court The High Court reserved liberty to the appellant to move the High Court on or after June 26. 1967, for a fresh order of bail. It was contemplated that within the time so fixed, the prosecution will examine the German witnesses. On March 13, 1967, the appellant surrendered to his bail and since then he is in jail custody. The prosecution has been given ample opportunity to examine the witnesses before June 26, 1967, without any interference from the appellant. From the correspondence placed before us, it appears that during the pendency of this appeal the prosecution has refrained from taking steps for the examination of the German witness. This Court did not pass any order staying the proceedings or admitting the appellant to bail. The delay in the examination of the witnesses is caused entirely by the laches of the prosecution. Even if the prosecution cannot now examine the witnesses by June 26, 1967, we see no reason why the appellant should remain in custody after that date. We direct that the appellant be released on bail on June 26, 1967, whether or not the prosecution witnesses are examined by that date. The bail will be given to the satisfaction of the Presidency Magistrate, 23rd Court, Esplanade, Bombay, before whom the case is pending. Subject to this modification, the appeal is dismissed.

Appeal dismissed.