# 1 / :9 BASHIR AND OTHERS v. STATE OF HARYANA October 3. 1977

- **Citation:** [1978] 1 S.C.R. 585
- **Court:** Supreme Court of India
- **Decided:** 1975-12-02
- **Case number:** Criminal Appeal No. 517 of 1976
- **Bench:** S. MURTAZA fAZAL ALI, P. S. Kailasam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-9-bashir-and-others-v-state-of-haryana-october-3-1977-7297
- **Pages:** 6

## Headnote

585
Criminal Procedure Code 1973-Ss. 167(2), 437(1) and
(5)-Graat of
bail-Release of an accused because challan not filed within 60 days fron1
arrest-Dee1ned bail-If bail can be cancelled as soon as challan is filed.
The three appellants along \Vith 8 others were prosecuted for offence~ u/s.
302 read \Vith s. 149 I.P.C. for causing the death of one· Sagru. The f.l.R. was
lodged on December 2, 1975 and the three appellants and 8 others v.·ere arrtsted
on the same day. Though the other 8 were released on bail, the bail applicaLions of the three appellants were rejected by the Sessions Court because tbey
were alleged to have caused the injuries. The High Court also declined to grant
them bail by an order dated February 5, 1976. As no challan was filed by the
police in the case within 60 days from the date of the arrest of the appellants
they were released on bail on February 23, .1976 u/s 167(2)
Cr.P.C.
1973.
Subsequently, the police filed a challan and the Magistrate committed all the
eleven accused to the Sessions Court.
An application for cancellation of the bail of the 3 appellants was file<l before
the Sessions Court on the ground that their petitions for grant of bail were rejected
on merits both by the Sessions Court and the High Court and that since challans
were filed the court should cancel the bail. The Sessions Judge relying on 1975
PU (Cri.) 143 (Ajaib Singh v. State of Puniab) held that the considerations
for grant of bail at the stage when no report u/s 173 Cr.P.C. was filed was
entirely different because if the report is not produce4 within 2 months, the
Court has no option but to. grant bail to the accused howsoever heinous the
nature of the offence may be.
Holding- that when once a report under s.
173
Cr.P.C. is filed by the police, the court has jurisdiction to cancel the bail, the
Sessions Court allowed the above application and cancelled the bail.
An appeal against the order of the Sessions Judge cancelling the bail was
dis missed by the High Court.
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The view taken by the High Court was challenged in the appeal before this
Court by special leave on the ground that when once the bail is granted u/s.
F
167(2) Cr.P.C. it cannot be cancell:d on the mere ground that subsequently the
police had filed a challan but that the bail .order can only be canceJled under the
provision of s. 437(5) Cr.P.C.
Section 167_(2) of the ~riminal Procedure· ~ode, 1973 empowers the Magistrate to authonse the detention of the accused in custody for a term not exceeding 15 days. in the \vhol~. The proviso, however, provides that no 1\[agistrate
shall authonse the detention of the accused person in custody under that section
for ?- total period exceeding 60 days and that on the expiry of the said period
G .
of sixty days _the a~cused person shall be released on bail if he is prepared 10
and does furnish bail and that every person released on bail under that section
shall be deemed to be so released under the provisions of
Chapter XX'XllL
Se:<=ti.olil 437(1) provi~es that any person accused of or suspected of the con1
mission of a_ny nonbailable offence may be released on bail but that he ihall not
be. released 1f there appears reasonable grounds for believing that be has
been
guilty of an offence punishable with death or imprisonment for life. Sub-section
(2) of s. 437 empowers the court to release an accused if there are not reasonH
able grounds .for believing th~t the accused
has
committed a
non-bailable
offence.
Section 437(5) provides that any court which has release<! a pmon on
b~l under sub-s. (1) or sub-s. (2) might, if it considers it necessary, so to do,
dtrect that such person be arrested and n1ay be committed to custody.
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586
SUPREME COURT REPORTS
(1978] l s.c.R.
Allowing the appeal,
HELD: (I) As under s. 167(2) a person who has been released on the
ground that he had been in custody for a period of over 60 days is deemed to
be released under the provisions of Chapter XXXIII, his release should be con

## Text

-1
/
:9
BASHIR AND OTHERS
v.
STATE OF HARYANA
October 3. 1977
[S. MURTAZA fAZAL ALI AND P. S. KAILASAM, JJ.J
585
Criminal Procedure Code 1973-Ss. 167(2), 437(1) and
(5)-Graat of
bail-Release of an accused because challan not filed within 60 days fron1
arrest-Dee1ned bail-If bail can be cancelled as soon as challan is filed.
The three appellants along \Vith 8 others were prosecuted for offence~ u/s.
302 read \Vith s. 149 I.P.C. for causing the death of one· Sagru. The f.l.R. was
lodged on December 2, 1975 and the three appellants and 8 others v.·ere arrtsted
on the same day. Though the other 8 were released on bail, the bail applicaLions of the three appellants were rejected by the Sessions Court because tbey
were alleged to have caused the injuries. The High Court also declined to grant
them bail by an order dated February 5, 1976. As no challan was filed by the
police in the case within 60 days from the date of the arrest of the appellants
they were released on bail on February 23, .1976 u/s 167(2)
Cr.P.C.
1973.
Subsequently, the police filed a challan and the Magistrate committed all the
eleven accused to the Sessions Court.
An application for cancellation of the bail of the 3 appellants was file<l before
the Sessions Court on the ground that their petitions for grant of bail were rejected
on merits both by the Sessions Court and the High Court and that since challans
were filed the court should cancel the bail. The Sessions Judge relying on 1975
PU (Cri.) 143 (Ajaib Singh v. State of Puniab) held that the considerations
for grant of bail at the stage when no report u/s 173 Cr.P.C. was filed was
entirely different because if the report is not produce4 within 2 months, the
Court has no option but to. grant bail to the accused howsoever heinous the
nature of the offence may be.
Holding- that when once a report under s.
173
Cr.P.C. is filed by the police, the court has jurisdiction to cancel the bail, the
Sessions Court allowed the above application and cancelled the bail.
An appeal against the order of the Sessions Judge cancelling the bail was
dis missed by the High Court.
A
B
c
D
E
The view taken by the High Court was challenged in the appeal before this
Court by special leave on the ground that when once the bail is granted u/s.
F
167(2) Cr.P.C. it cannot be cancell:d on the mere ground that subsequently the
police had filed a challan but that the bail .order can only be canceJled under the
provision of s. 437(5) Cr.P.C.
Section 167_(2) of the ~riminal Procedure· ~ode, 1973 empowers the Magistrate to authonse the detention of the accused in custody for a term not exceeding 15 days. in the \vhol~. The proviso, however, provides that no 1\[agistrate
shall authonse the detention of the accused person in custody under that section
for ?- total period exceeding 60 days and that on the expiry of the said period
G .
of sixty days _the a~cused person shall be released on bail if he is prepared 10
and does furnish bail and that every person released on bail under that section
shall be deemed to be so released under the provisions of
Chapter XX'XllL
Se:<=ti.olil 437(1) provi~es that any person accused of or suspected of the con1
mission of a_ny nonbailable offence may be released on bail but that he ihall not
be. released 1f there appears reasonable grounds for believing that be has
been
guilty of an offence punishable with death or imprisonment for life. Sub-section
(2) of s. 437 empowers the court to release an accused if there are not reasonH
able grounds .for believing th~t the accused
has
committed a
non-bailable
offence.
Section 437(5) provides that any court which has release<! a pmon on
b~l under sub-s. (1) or sub-s. (2) might, if it considers it necessary, so to do,
dtrect that such person be arrested and n1ay be committed to custody.
A
B
c
D
E
F
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586
SUPREME COURT REPORTS
(1978] l s.c.R.
Allowing the appeal,
HELD: (I) As under s. 167(2) a person who has been released on the
ground that he had been in custody for a period of over 60 days is deemed to
be released under the provisions of Chapter XXXIII, his release should be con·
sidered as one u/s 437(1) or (2). Section 437(5)
empo\vcrs
the court to
direct that the person so released may be arrested if it considers it necessary to
do so. The powers of the court to 4ancel bail if it considers it necessary
is
preserved in cases where a person has been released on bail u/s 437(1) or (2)
and these provisions are applicable to a person who has
been
released
u/s.
167(2) [589 G-H, 590 A]
(2) As the provisions of s. 437(1), (2) and (5) are applicable to a·person
who has been released u/s. 167(2), the mere fact that subsequent to his release
a chaJian has been filed is not sufficient to commit him to custody.
Jn this case
the bail was cancelled and the appellants were ordered to be
arrested
an<l
committed to custody on the ground that subsequently a charge sheet had been
filed and that before the appellants were directed to be released u/s 167(2), their
bail petitions \Vere dismissed on merits by Sessions Court and the High Court.
[590 B-C]
(3) The court before directing the arrest of the accused
and
c0mn1itting
them to custody should consider it necessary to do so u/s 437(5).
'J11is may be
done by the court coming to the conclusion that after the challan
had
been
filed there are sufficient grounds that it is necessary that he should be
arrested
and committed to custody. It is necessary that the court should proceed on the
basis that he has been deemed to have been released under s. 43 7 ( l ) and (2).
[590 D-E]
Rani Pal Singh and Others v. State of U.P. 1976 Cr.L.J. 288, approved.
The bail u/s. 167(2) Cr.P.C. has the same incidents as the bail granted under
Chapter XXXIII and is accordingly to remain valid till it is cancelled, and the
cancellation of a bail can only be on the grounds kno\vn to law and the receipt
of the charge sheet in court can by itself be no ground for cancellation of the
bail. [590 F-GJ
( 4) The cancellation of bail for the reasons stated by the High Court is not
(
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"' .,
sound. [590 HJ
/.<
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 517
of 1976.
Appeal by Special Leave from
the Judgment and
Order dated
27-8-1976 of the Punjab & Haryana High Court in Criminal Mi~c.
No. 4090-M of 1976.
S. K. Mehta and P. N. Puri for the Appellants.
H. S. Marwah and S. N. Sachthey for the Respondent.
The judgment of the Court was delivered by
KAILASAM, J. This appeal is by special leave by the three appellants against the judgment of the High Court of Punjab and Haryana
in Criminal Miscellane-0us No. 4090-M of 1976 dismis'sing an application under sect'on 439, Criminal Procedure Code, praying that the
appellants be released on bail during the pendency of their trial in a
case under section 304 read with section
148, Indian Penal Code.
The facts of the case are briefly as follows.
The three appellants,
Bashir, Kundan and Sadiq, along with e'ght others are being prosecuted for offences under section 302 read with section 149, section
..
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UNION v. s. H. SHETH (Bhagwati, !.)
587
34 7 read with section 149 and section 148 read with section 14 7,
Indian Penal Code, for causing the death of one Sagru and grievous
and simple injuries to three others. While eight others were released on
bail, the appellants
were refused bail as it was alleged that they
<:aused injuries to Sagru. The First Information Report of the offence
was lodged on December 2, 1975 and the three appellants and eight
others were arrested on the same day.
Though the
other eight
accused were released on bail, the bail applicatiou of the three appellants was rejected by the Sessions Court on December 15, 1975. The
High Court also declined to release them on bail by an order dated
February 5, 1976. But as no challan was filed by the police in the
<:ase within sixty days from the date of the arrest of the appellants
they were released on bail on February 23, 1976 under section 167(2)
of the Criminal Procedure Code.
Subsequently the police filed
a
challan and the Magistrate committed all the eleven accused to the
Sessions Court and released them including the appellants on bail.
The complainant filed an application, out of wb;ch this
appeal
arises, before the Sessions Court for cancellation of the bail to the
three appellants on the ground that their petitions for grant of bail
were rejected on merits both by the Sessions Comt and the
High
Court.
The Sessions Judge relying on a decision of the Punjab High
Court reported in 1975 PLJ
(Cr!.)
143-Ajaib Singh vs. State of
J unjab--held that the considerations for grant of bail at the
stage
when no report under section 173, Criminal Procedure Code,
was
tiled were entirely different. because if the report is not produced within two months, the court has no option but to grant bail to the
accused howsoever the heinous nature of the offence may be.
Holding that when once a report under section 173, Criminal Procedure
Code, ;s filed by the police the court has jurisdiction to cance1 the
bail allowed the application of the complainant and cancelled the bail.
An appeal against the order of the Sessions Judge cancelling the
bail was dismissed by the High Court.
It was conten>!ed before the
High Court that when the appellants were released under the proviso
to section 167(2) of the Code of Criminal Procedure unless there was
an allegation of misconduct or misuse of the terms of the bail bond
by them the bail order could not be withdrawn. It was further contended that the order of bail could be cancelled only under the provisions of section 437(5), Criminal Procedure Code, as the order of
bail passed under section 167(2) is deemed to be a bail order passed
under Chapter XXXIII, Criminal
Procedure
Code.
Disagreeing
with the contention of the learned counsel for the appellants, the High
(:ourt held as follows :-
-
"The order of bail is passed by the Magistrate in such
cases only because of the technicalities in law, that is the
failure of the investigating agency to discharge its duties in
time ·in presenting the challan against the accused within
the period directed by section
167, Criminal
Procedure
Code.
This bail order is not on merits of the case.
As
soon as that ground for which the court has no option but
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588
SUPREME COURT REPORTS
(1978] l S.C.Rto release the accused on bail is fulfilled or complied with
by the investigating agency, the Mag'.strate or the court of
Session or the High Court can on that ground cancel the
bail allowed earlier. When such au order of cancellation is
passed it is to be presumed that the court, while cancelling
the bail, has taken into consideration the final report of the
police laid aga'nst the accused, first
information
report,
statement under section 161, Criminal Procedure Code, and
the other material collected by the police during the investigation of the case."
The view taken by the High Court is challenged in the appeal
before us. It was submitted that when once the bail is granted under
section 167 (2), Cr: minal Procedure Code, it cannot be cancelled on
the mere ground that subsequently the police had filed a challan but
that the bail order can only be cancelled
under the provisions
of
section 437(5), Criminal Procedure Code.
We will now refer to the relevant prONisions of the Criminal Pro-
. cedure Code.
Section 167(2) of the Criminal Procedure Code, Act
2 of 1974, is as follows :-
"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; a,nd 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 pet'od 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
arid 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;"
Sub-section (2) of section 167 and Proviso (a) thereto make it clear
that no Magistrate shall authorise the retention of the accused persorr
in custody under this section for a total period exceeding sixty days.
On the expiry of sixty days the accused person shall be released on
I-
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BASHIR v. HARYANA (Kailasam, J.)
589
oail if he is prepared to and does furnish ba'I.
So far there is no
A
controversy.
The question arises as to what is the position of !he
person so released when a challan is subsequently filed by the police.
The last sentence in proviso (a) is relevant.
It is "and every person
released on bail under this section shall be deemed to be so released
under the provi&. ons of Chapcer XXXIII for the
purposes of that
Chapter". Chapter XXXIll contains provisions as to bail and bonds.
The relevant sub-sections (!) and (2) of section 437 are:
B
" ( 1) When any person accused of or suspected of the
comm:ssion of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station
or appears or is broughc before a Court other than the High
Cour'. or Court of Session,· he may be released on ba'l, but
he shall not be so
released if there appear reasonable
C
grounds for believing that he has been guilty of an offence
punishable with death or imprisonment for life :
x
x
x
x
(2) If it appears to such officer or ·Court at any stage
of the investigation, inquiry or trial, as the case may be,
that there are not reasonable grounds for believing that the
accused has comm'tted a non-bailable offence, but that there
are sufficient grounds for further inquiry into his guilt, the
accused shall, pending such inquiry,
be released on bail,
or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance
as hereinafter provided."
Sub·sect'on (1) of section 437 provides as to when bail may be taken
in case of a non-bailable offence.
A person accused of a non-bailable
offence may be released by a court 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 l'fe.
The
two provisos to sub-sec•ion ( 1) are not material and need not be considered. Sub-section (2) to section 437 provides that if the investigating officer or the court at any stage of the investigation, inqu'ry or
trial, as the case may be, is of opinion that there are no reasonable
grounds for believing that the accused has committed a non-bailable
offence, but there are sufficient grounds for further inquiry into his
guilt; pend'ng such inquiry, the accused shall be released on bail. Sub,
section (5) to section 437 is important. It provides that any Court
which has released a person on bail under sub-section (I) or sub-section (2), may, if it considers it necessary so to do, direct that such
person be arrested and commit
him to custody.
As under section
167(2) a person who has been released on the ground that he had
been in custody for a per'od of over sixtv days is deemed to be reieased under tlie provisions of Chap'er XXXTTI, his release shnnld be
considered as one under section 437(1) or (2). Section 437(5) empowers the court to direct that the per<on so released may be arrested
if it considers it pecessary to do so. The power of the court to eancel
bail if it considers it necessary is preserved in cases where a person
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590 ..
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" SUPREME COURT REFORT5
[1978] I S.C.R·
·---·-· --
ha's been released on bail under section 437( l) '" {'!) and thes<>
provisions are applicable to a person who has b.. "" released under section 167(2). Under section 437(2) when a person is released pending inquiry on the ground that there are not sufficient grounds to believe that he had conunitted a non-bailable offence may be committed
to custody by court which released him on bail if it is satisfied that
there are sufficient grounds for so doing after inquiry is completed. As
the provisions of section 437(1), (2) and (5) are applicable to a
person who has been released under section 167(2) the mere fact that
subseqnent to his release- a challan has been filed is not sufficient to
commit him to custody. In this case the bail was cancelled and the
appellants were ordered to be arrested and committed to custody on
·the ground that subsequently a chargesheet had been filed and that
before the appellants were directed to be released under section 167(2)
their bail petitions were dismissed on merits by the Sessions Court and
. tlie High Court. The fact that before an order was passed under section 167 (2) the bail petitions of the accused were dismissed on merits
is not relevant for the purpose of taking action under section 437(5).
Nei•her is it a valid ground that subsequent to release of the appellants
a challan was filed by the police. The court before directing the arrest
of the accused and commiiting them to cmtody should cons'der it
necessary to do so under section 437 (5). This may be done by the
court coming to the conclusion that after the challan had been filed
there are sufficient grounds that the accused had committed a nonbai!able offence and that it is necessary that he should be arrested and
committed to custody. It may also order arrest and conunittal to custody on other grounds such as tampering of the evidence or that his
being at large is not 'n the interests of justice. But it is necessary that
the court should proceed on the basis that he bas been deemed to have
been released under sections 437(1) and (2).
• The learned counsel appearing for the respondents referred to decisions of the various H'gb Courts in 1976 Cr. L.J.118. 1976 Cr. L.
J; 288, 1977 Cr. L.J. 104, 1977 Cr. LJ., 3Q4 and 1977 Cr.LJ. 486.
F
These decisions except Ram Pal Singh and 0'hers v. State of U.P.(I)
are not on the point and therefore need no discussion.
Jn Ram l'al
Sin!lh and_ Others vs. State of U.P. a single Jml•e of the Alhhnbad
Hiah Court held that the bail under- section 167 (2), Criminal Procedure COOe. has the same incidents as the ba'l granted
umler
Chanter. XXXIII, and is accordiMlv to remain valid till it is cancelled and the cancellation of a bail can onlv be on the grounds
G
hnwn to law and the receiP.t of the choroe<heet in court can bv
itself be no ground for cancellation of the bail. The view expressed
i
H
by the learned Judge is correct in law.
. Il1 .. ihe result we hold that the cancellation of the ba;J for the rea-·
sons stated by the H;gh Court is not sound and direct that the appellants be set at liberty. ·
·
P.H.P.
'
Appeal allowed.
(I) 1976 Cr. LJ. 288 .