# 'l'IJlab Haji Huaaaii\ K. J. Khandalwala and R. H. Dhebar, for v. M adllukar Ptm1wt• No. l. lam Mondkar

- **Citation:** [1958] 1 S.C.R. 1226
- **Court:** Supreme Court of India
- **Decided:** 1958-01-14
- **Case number:** Criminal Appeal No. 16 of 1958
- **Bench:** IDllll <BHAGWATI, J. L. Kapur, Gajendragadkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-ijlab-haji-huaaaii-k-j-khandalwala-and-r-h-dhebar-for-v-m-adllukar-ptm1wt-no-1405
- **Pages:** 14

## Headnote

C1'iminal Law-Bail-Cancellation-High Oou1't's inherent
power-Bailable offence-Accused released on bail by Magistrate-Subsequent P1'•iudicial conduct of accused-High Court's
power to cancel bail-code of Crimmal Procedure (Act 5 of
1898), ss, 426, 496, 497, 498, 561A.
The appellant was charged under s. 120B of the Indi'1n Penal Code and s. 167(81) of the Sea Customs Act, 1878, which
were bllilable offences, and was released on bail by the Chief
Presidency Magistrate under s. 496 of the Code of Criminal
Procedure. An application made subsequently by the complainant for cancellation of the bail was dismissed by the Magistrate on the ground that under s. 496 he had no jurisdiction
to cancel the bail. The complainant invoked the inherent power
of the High Court under s. 561A of the Code and the High
Court took the view that under that section it had inherent
power to cancel the bail. and findinl! that on the material produced before the Court it would not be safe to penn\t the appellant to be at large, it cancelled the bail. On appeal to the
Supreme Court:-
Held, that though under s. 496 of the Code of Criminal
Procedure a person accused of a bailable offence is entitled to
be released on bail pending his trial, if Iris conduct subsequent
to his release is found to be prejudicial to a fair trial, he forfeits his right to be released on baH and such furfeiture can be
made effective by invoking the inherent power of the High
Court under s. 561A of the Code. But the inherent power has to
be exercised sparingly, carefully and with caution and only
where such exercise is )\!stifled by the tests specifically laid
down in the section itsel:t'.
Lala Jui.ram Das & Others v. King Emperor, (1945) L.R. 72
I.A. 120, distinguished.

## Text

l~58
FebNUlry 7.
1226
SUPREME COURT REPOH'l'S
TALAB HAJI HUSSAIN
11.
MADHUKAR PURSHOTTAM MONDKAR
AND ANOTHER
[IDllll
<BHAGWATI, J. L. KAPUR and GAJENDRAGADKAR JJ.)
C1'iminal Law-Bail-Cancellation-High Oou1't's inherent
power-Bailable offence-Accused released on bail by Magistrate-Subsequent P1'•iudicial conduct of accused-High Court's
power to cancel bail-code of Crimmal Procedure (Act 5 of
1898), ss, 426, 496, 497, 498, 561A.
The appellant was charged under s. 120B of the Indi'1n Penal Code and s. 167(81) of the Sea Customs Act, 1878, which
were bllilable offences, and was released on bail by the Chief
Presidency Magistrate under s. 496 of the Code of Criminal
Procedure. An application made subsequently by the complainant for cancellation of the bail was dismissed by the Magistrate on the ground that under s. 496 he had no jurisdiction
to cancel the bail. The complainant invoked the inherent power
of the High Court under s. 561A of the Code and the High
Court took the view that under that section it had inherent
power to cancel the bail. and findinl! that on the material produced before the Court it would not be safe to penn\t the appellant to be at large, it cancelled the bail. On appeal to the
Supreme Court:-
Held, that though under s. 496 of the Code of Criminal
Procedure a person accused of a bailable offence is entitled to
be released on bail pending his trial, if Iris conduct subsequent
to his release is found to be prejudicial to a fair trial, he forfeits his right to be released on baH and such furfeiture can be
made effective by invoking the inherent power of the High
Court under s. 561A of the Code. But the inherent power has to
be exercised sparingly, carefully and with caution and only
where such exercise is )\!stifled by the tests specifically laid
down in the section itsel:t'.
Lala Jui.ram Das & Others v. King Emperor, (1945) L.R. 72
I.A. 120, distinguished.
CRIMINAL APPELLATE JURISDICTION:
Criminal Appeal
No. 16 of 1958.
Appeal by special leave from the judgment and order
dated January 14, 1958, of the Bombay High Court in Criminal Application No. 60 of 1958 arising out of the judgment and order dated January 9, 1958, of the Court of Chief
Presidency Magistrate at Bombay in an application for cancellation of bail in Case No. roB/W of 1957.
S.C.It.
SUPREME COUR'r REPORTS
i227
Purshottam Tricumdas, Rajni Patel and l.N. Shroff, for the
1968
appellant.
'l'IJlab Haji
Huaaaii\
K. J. Khandalwala and R. H. Dhebar, for respondent
v.
M adllukar Ptm1wt•
No. l.
lam Mondkar
1958. February 7. The Judgment of the Court was de·
livered by
GAJENDRAGADKAR J .-The appellant, ·along with others,
has been charged under s. 120B of the Indian Penal Code (lajendragadkar J,
and s. 167(81) of the Sea Customs Act (8 of 1878). There is
no doubt that the offences charged against the appellant are
bailable offences. Under s. 496 of the Code of Criminal Pro·
cedure the appellant was released on bail of Rs. 75,000 with
one surety for like amount on December 9,
1957, by the
learned Chief Presidency Magistrate at Bombay. On January
4, 1958, an a.pplication was made by the complainant before
the learned Magistrate for cancellation of the bail; the learned
Magistrate, however, dismissed the application on the ground
that under s. 496 he had no jurisdiction to cancel the bail.
Against this order, the complainant preferred a revisional application before the High Court of Bombay. Another applica·
tion was preferred by the complainant before the same Court
invoking its inherent power under s. 561A of the Code of
Criminal Procedure. Chagla C. J. and Datar J. who heard
these applications took the view that, under s. S61A of the
Code of Criminal Procedure the High Court had inherent
power to cancel the bail granted to a person accused of a bail·
able offence and that, in a proper case, such power can and
must be exercised in the interests of justice. The learned Jud·
ges then considered the ma.terial produced before · the Court
and came to the conclusion that, in the present case, it would
not be safe to permit the appellant to be at large. That is why
the application made by the complainant invoking the High
Court's inherent power under s. 561A of the Code of Criminal
Procedure was allowed, the bail-bond executed by the appel·
!ant was caneelled and an order was passed directing that
the appellant be arrested forthwith and committed to custody. It is against this order that the appellant has come to
L/S4SC1-3(a)
12:18
SUI'IU~:IIE COUH'l' HE1'0H'l'8
1968
this Court in appeal by special leave. Special leave granted
Tu/ab Haji
td the appellant has, however, been limited to the question
ilu•sai"
of the construction of s. 496 read with s. 56JA ot the Code
v.
Mudhukar Pur.h-01- of Criminal Procedure. Thus the !)vint of law which falls to
'""' :ltondkar
be considered in the present appeal is whether, in the case
Uajcndrago<lkar J. of a person accused of a bailable offence where bail has been
granted to him under s. 496 of the Code of Criminal Procedure, it can be cancelled in a proper case by the High Court
in exercise of its inherent power under s. S61A of the Code
of Criminal Procedure? This question is no doubt of considerable importance and its decision would depend upon the
construction of the relevant sections of the Code.
The material provisions on the subject of bail are contained in ss. 496 to 498 of the Code of, Criminal Procedure.
Section 496 deals with persons accused of bailable offences.
It provides that "when a person charged with the commission
of a bailable offence is arrested or detained without warrant
by.an officer in charge of a police station or is brought before
a court and is prepared at any time, ·while in the custody of
such officer or at any stage of the proceedings before such
court, to give bail. such person· shall be released on bail." The
section further leaves it to the discretion of the police officer
or the court if he or it thinks fit to discharge the accused person on his executing a bond without sureties for his appea·
ranee and not to take bail from him. Section 497 deals with
the question of granting bail in the case of non-bailable offences. A person accused of a non-bailable offence 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. This
is the effect of s. 497(1). Sub-section (2) deals with cases where
it appears to the officer or the court that there are not reasonable grounds for believing that the accused has committed a
non-bailable offence. but there are sufficient grounds for further enquiry into his guilt and it lays down that in such cases
the accused shall, pending such enquiry, be released, on bail
S.C.R.
SUPREME t;OURT REPORTS
1229
or at the discretion of the officer or co.urt, on the execution by
him of a bond without sureties for his appearance as hereinafter
provided. Sub-section (3) requires that, when jurisdiction, under
sub-s. (2) is exercised in favour of an accused person, reasons
for exercising such jurisdiction shall be recorded in writingi
Sub-section (3A) which has been added in 1955 deals with cases
where the trial of a person accused of any non-bailable offence
is not concluded within a period of sixty days from the first
day fixed for taking evidence in the case and it provides that
such person shall, if he is in custody during the whole of the
said period, be released on bail unless for reasons to be recorded in writing the magistrate otherwise directs. Thy last subsection confers on the High Court and the Court of Session. and
on any other court in the case of a person released by itself,
power to direct that a person who has been released on bail
under any of the provisions of this section should be arrested
and committed to custody. Section 498(1) confers on the High
Court or the Court of Session power to direct admission to
bail or reduction of bail in all cases where bail is admissible
under ss. 496 and 497 whether in such cases there be an appeal
against conviction or. not. Sub-section (2) of s. 498 empowers
the High Court or the Court of Session to cause any person
who has been admitted to bail under sub-s. (1) to be arrested
and committed to custody. There is one more section to which
reference must be made in this connection and that is s. 426
of the Code. This section incidentally deals with the power to
grant bail to persons who have been convicted of non-bailable offences when such convicted persons satisfy the court
that they intend to present appeals against their orders of
conviction. That is the effect of s. 426(2A) which has been
added in 1955. A similar power has been conferred on the
High Court under sub-s. (2B) of s. 426 where the High Court
is satisfied tha.t the convicted person has been granted special
leave to appeal to the Supreme Court against any sentence
which the High Court has imposed or maintained. Sub-section
(3) provides that. if the appellant who is released on bail
1958
Talab Haji
Huasain
....
MaJliukar Purs1wt.
tam.Mondkar
Gajenbagadknr J.
1fl.)8
1.'alab H(1ji
H1M,,ain
v.
Jf111lhvkar Pura'li.ot-
,.," Jlontlkor
f:ujnirlmgadkaf' J.
1230
SUPREME COURT REPORTS
[1958}
under said sub-s. (2) or (28) is ultimately sentenced to imprisonment, the time during which he is so released shall bo
excluded in computing the teem for which he is so sentenced.
That briefly is the scheme of the Code on the subject of bail.
There is no doubt that under s. 496 a person accused of
a bailable offence is entitled to be released on bail pending his
trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court, before whom
he offers to give bail, is bound to release him on such terms
as to bail as may a.ppear to the officer or the court to be
reasonable. It would even be open to the officer or the court
to discharge such person on executing his bond as provided
in the section instead of taking bail from him. The position
of persons accused of non-bailable offences is entirely different. Though the recent amendments made in the provisions
of s. 497 have made definite improvement in fa:vour of persons
accused of non-bailable offences, it would nevertheless be
correct to say that the grant of bail in such cases is generally
a matter in the discretion of the authorities in question. The
classification of offences into the two categories of bailable
and non-bailable offences may perhaps be explained on the
basis that bailable offences are generally regarded as less
gra:ve and serious 'than non-bailable offences. On this basis
it may not be easy to explain why, for instance offences under
ss. 477, 477A, 475 and 506 of the Indian Penal Code should
be regarded as bailable whereas offences under s .. 379 should
be non-bailable. However, it cannot be disputed that s. 496
recognizes that a person accused of a bailable offence has a
right to be enlarged on bail and that is a consideration on
which Shri Purushottam, for the appellant, has very strongly
relied.
Sbri Purushottam has also emphasized the fact that.
whereas legislature has specifically conferred power on the
specified courts to cancel the bail granted to a person accused
of a non-bailable offence by the provisions of s. 497(5), no
such power has been conferred on any court in regard to
S.C.R.
StffiPEME COURT REPORTS
1231
persons accused of bailable offences. If legislature had intended to confer such a power it would have been very easy for
h to add an appropriate suHection under s. 496. The
omission to make such a provision is, aecording to Sbri
Purushottam, not the result of inadvertence but is deliberate;
and if that is so, it would not be legitimate or reasonable to
clothe the High Courts with the pow9r to cancel bails in such
cases under s. S61A. It is this aspect of the matter which needs
careful examination in the present case.
Section 561 A was added to the Code in 1923 and it purports
to save the inherent power of the High Courts. It provides
that nothing in the Code shall be deemed to limit or affect
the inherent ·power of the High Court to make such orders
as ma.y be necessary to give effect tQ any order under the Code
or to prevent abuse of the process of any court or otherwise
to secure the ends of justice. It appears that doubts were expressed in some judicial decisions about the existence of such
inherent power in the High Courts prior to 1923. That is why
legislature enacted this section to clarify the position that
the provisions of the Code were not intended to limit or
affect the inherent power of the High Courts as mentioned in
s. 561A. It is obvious that this inherent power can be exercised only for either of the three purposes specifically mentioned
in the section. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise
would be inconsistent with any of the specific provisions of
the Code. It is only if the matter in question is not covered by
any specific provisions of the Code that s. 561A can come
into operation, subject further to the requirement that the
exercise of such power must serve either of the three purposes mentioned in the said section. In prescribing rules of procedure legisla.ture undoubtedly attempts to provide for all
t:Qses that are likely to arise; but tt is not possible that any
legislative enactment dealing with f)rocedure, however carefully it may be drafted, would succeed in providing for all
cases that may possibly arise in future. Lacunae are some19$8
2'alab Baja
Buasain
T,
Madhukar Purshcl·
tam J[ond/<or
Gajeniragadfor J.
1958
Talab Haji
B1M80l1£
v.
M adhulcar Purahot.
tam Mondkar
1232
SUPRE!lffi COURT REPORTS
[1!}581
times discovered in procedural law and it is to cover such
lacunae and to deal with cases where such lacunae are discoverd
that procedural law invariably recognizes the existence of
inherent power in courts. It would be noticed that it is only.
the High Courts whose inherent power is recognized by s.
561A; and even in regard to the High Courts' inherent power
definite salutary safeguards have been laid down as to its exetcise. It is only where {he High Court is satisfied either that
an order passed under the Code would be rendered ineffective
or tha,t the process of any court would be abused or that the
ends of justice would not be secured that the High Court can
and must exercise its inherent power under s. S61A. There
can thus be no dispute about the scope and nature of the inherent power of the High Courts and the extent of its exercise.
Now it is obvious tha.t the primary object of criminal
procedure is to ensure a fair trial of accused persons. Every
criminal trial begins with the presumption of innocence in
favour of the accused; and provisions of the Code are so
framed that a criminal trial should begin with and be throughout governed by this essential presumption; but a. fair trial
~~~~~~~vi~H~be~~~~~
and must also be fair to the prosecution. The test of fairness
in a criminal trial must be judged from this dual point of
view. It is therefore of the utmost importance that, in a criminal trial, witnesses should be able to give evidence without
any inducement or threat either from the prosecution or the
defence. A criminal trial must never be so conducted by the
prosecution as would lead to the conviction of an innocent
person; similarly the progress of a criminal trial must not be
obstructed by the accused so as to lead to the acquittal of a
really guilty· offender. The acquittal of the innocent and the
conviction of the guilty are the objects of a criminal trial and
!O there can be no possible doubt that, if any conduct on the
part of an accused person is likely to obstruct a fair trial,
there is occasion for the exercise of the inherent power of the
S.C.R.
SuPREME COURT REPORTS
123:1
High Courts to secure the ends of justice. There can be no
more important requirement of the ends of justice than the
uninterrupted progress of a fair trial; and it is for the continuance of such a fair trial that the inherent powers of the
High Courts are sought to be invoked by the prosecution in
cases where it is alleged that accused persons, either by suborning or intimidating witnesses, are obstructing the smooth progress of a fair trial. Similarly, i.f an accused person who is
released on bail jumps bail and attempts tq run to a foreign
country to escape the trial, that again would be a case where
the exercise of the inherent power would be justified in order
to compelthe accused to submit to a fair trial and not to escape
its consequences by taking advantage of the fact that he has
been released on bail and by absconding to another country. In
other words, if the conduct of the accused person subsequent
to his release on bail puts in jeopardy the progress of a fair
trial itself and if there is .no other remedy which can be effectively used against the accused person, in such a case the inherent power of the High Court can be legitimately invoked.
In regard to non-bailable offences there is no need to invoke
such power because s. 497 (5) specifically deals with such
cases. The question which we have to decide in this case is
whether exercise of inherent power under s.
561A against
persons accused of bailable offences, who have been released
on bail, is contrary to or inconsistent with the provisions of
s. 496 of the Code of Criminal Procedure.
Shri Purushottam contends that the provisions of s. 496
are plainly inconsistent with the exercise of inherent power
under s. 561A against the appellant in the present case and; he
argues that. despite the order which has been passed by the
High Court. he would be entitled to move the trial court for
bail again and the trial court would be bound to release him
on bail because the right to be released on bail recognized
by s. 496 is an absolute and an indefea<>ible right; and despite
the order of tbe High Court, that right would still be available
Jnti8
'l'alnb Haji
H11&aain
v.
lot adlmkar Purshnt.
lam Mondkar
Oajendragadkar .J.
1958
Talab Haii
Httssain
v.
Jlfadlukar Purslwt•
tnm Mondka.r
Onjendr11,'larllcar .J.
12~4
SUPREME COURT REPORTS
{1958)
to the appellant. If that be the true position, the order passed
under s. 56IA would be rendered ineffective and that itself
would show that there is a conflict between the exercise of the
said power and the provisions of s. 496. Thus presented, the
argument no doubt h prima facie attractive; but a close examination of the provisions of s. 496 would show that there is
no conflict between its provisions and the exercise of the jurisdiction under s. 561A. In dealing with this argument it is necessary to remember that, if the power under s. 561A is exercised by the High Court, the bail offered by the accused and
accepted by the trial court would be cancelled and the accused
would be ordered to be arrested forthwith
and committed
to custody. In other words, the effect of the order passed
under s. 561 A, just like the effect of an order passed under
s. 497 (5) a.nd s. 498 (2), would be not only that the bail is
cancelled but that the accused is ordered to be arrested and
committed to custody. The order committing the accused to
custody is a judicial order passed by a criminal court of competent jurisdiction. His commitment to custody thereafter is
not by reason of the fact that he is alleged to have committed a bailable offence at all; his commitment to custody is the
result of a judicial order passed on the ground that he has
forfeited his bail and that his subsequent conduct showed that,
pending the trial, he cannot be allowed to be at large. Now,
where a person is committed to custody under such an order, it
would not be open to him to fall back upon his rights under s.
4%, for s. 496 would in such circumstances be inapplicable to
his case. It may be that there is no specific provision for the
cancellation of the bond and the re-arrest of a person accused
of a bailable offence; but that does not mean tha.t s. 496 entitles such an accused person to be released on bail, even though
it may be shown that he is guilty of conduct entirely subversive of a fair trial in the court. We do not read s. 496 as conferring on a person accused of a bailable offence such an
unqualified, absolute and an indefeasible right to be released
on bail.
S.C.R.
SUPREME COUR'i' REPORTS
-
1235
In this connection, it would be relevant to consider the
1968
effect of the provisions of s. 498. Under s. 498(1), the High
Tawb Haji
-
HWJ•ain
Court or the Court of Sessions may, even in the case of perv.
sons accused of bailable offences, admit such .accused persons Jl'fi':i'M::tI:,;01•
to bail or reduce the amount of bail demanded by the• presGajend;,,~adbar ,/,
cribed authorities under s. 496. Shri Purushottam no doubt
attempted to argue that the operative part of the provisions
of s. 498(1) does not apply to persons accused of bailable
offences; but in our opinion, there ca1n be no doubt that this
sub-section deals with cases of persons accused of bailable
as well as non-bailable offences. We have no doubt that,
1
even in regard to persons accused of bailable offences, if the
amount of bail fixed under s. 496 is unreasonably: high the
accused person can move the High Court or the Court of
Sessions for reduction of that amount. Similarly, a person
accused of a bailable offence may move the High Court or
the Court of Sesslons to be released on bail and the High
Court or the Court of Sessions may direct either that the
amount should be reduced or that the person may be admitted to bail. If a person accused of a bailable offence is admitted to bail by an order passed by the High Court or the
Court of Sessions, the provisions of sub-s. (2) become appli- _
cable to his case; and under these provisions the High Court
or the Court of Sessions is expressly empowered to cancel
the bail granted by it and to arrest the accused and commit
him to cus~ody. This sub-section, as we have already pointed
out, has been added in 1955 and now there is no doubt that
legislature has conferred upon the High Court or the Court
of Sessions power to cancel bail in regard to cases of persons _ accused of bailable offences where such persons have
been admitted to bail by the High Court or the Court of Sessions under s. 498(1). The result is ·that with regard to a class
of cases of badlable offences falling under s. 498(1), even
after the accused persons are admitted to bail, express power
has been conferred on the High Court or the Court of Sessions to arrest them and commit them to custody. Clearly
1958
Talab Baji
Huaain
v.
Madk·ukar P·uraAot.
tam .Mim.dkar
Gn}endragadl:ar J,
1236
SUPREME COURT REPORTS
[1958)
then it cannot be said that the right of a person accused of
a bailable offence to be released on bail cannot be forfeited
even if his conduct subsequent to the grant of bail is found to
be prejudicial to a fair trial.
It would also be interesting to notice that, even before
s. 498(2) was enacted. there was consensus of judicial opinion
in favour of the view that, if accused persons were released
on. bail under s. 498(1), their bail-bond could be cancelled
and they could be ordered to be arrested and committed to
custody under the provisions of s. 561A of the Code (Mirza
Mohammad Ibrahim v. Emperor('), Seoli v. Rex('), Bachchu
Lal v. State('), Munshi Singh v. State(') and The Crown Prosecutor, Madras v. Krishnan(')). These deeisions would show
that the exercise of inherent power to cancel baH under s.
561 A was not regarded as inconsistent with the provisions of
s. 498(1) of the Code. It is true that all these decisi1>ns referred
to cases of persons charged with non,bailable offences; but
it is significant that the provisions of s. 497(5) did not apply,
to these cases and the appropriate orders were passed under
the purported exercise of inherent power under s. 56 l A. On
principle then these decisions prl>ceed on the
assumption,
and we think rightly, that the exercise of inherent power in
that behalf was not inconsistent with the provisions of s. 498
as it then stood.
It would riow be relevant to enquire whether, on principle, a distinctii>n can be made between bailable and nonbailable offences in regard to the effect l>f the prejudicial conduct of accused persons subsequent to their release on bail.
As we have already observed, if a fair trial is the main objective of the criminal procedure, any threat to the continuance . of fair trial
must be immediately arrested and. the
smooth progress of a fair trial must be ensured; and this can
be done, if necessary, by the exercise l>f inherent power. The
classification of offences into bailable and non-bailable on
whicli are based the different provisions as to the grant of
(') A.I.I\. 1932 All. 534.
(') AI.R.1948All. 366.
(') A.l.R. 1951 All 836.
t') A.I.R, 1952 All. 39
(') I.L.R. 1948 Mad. 62.
s.c.n..
8Ul'Rli.:l\IE COUU'l' HJ~PORTS
bail would not, in our opinion, have any material bearing in
deaHng with the effect of the subsequent conduct of accused
persons on the continuance of a fair trial itself. If an accused
person, by his conduct, puts the fair trial into jeopardy, it
would be the primary and paramount duty of criminal courts
to ensure that the risk to the fair trial is removed and criminal courts are allowed to proceed with
1the trial smoothly and
without any interruption or obstruction; and this would be
equally true in cases of both bailable as well as non-bailable
offences. We, therefore, feel no difficulty in holding that, if,
by . his· subsequent conduct, a person accused of a bailable
offence forfeits his right tJ be released on bail, that forfeiture
must be made effective by invoking the inherent power of the
High Court under s. 561A. Omission of legislature to make
a specific provision. in that behalf is clearly due to oversight
or inadvertence and cannot be regarded as deliberate. If the
appellant's contention is sound, it would lead to fantastic re.-
suits. The argument is that a person accused ·of a bailable
offence has such an . unquatified right to be released on bail
that even. if he dues his worst to obstruct or to defeat a fair
trial, his bail-bond cannot be cancelled and a, threat to a fair
trial cannot be arrested or prevented. Indeed Shree Purushottam went the length of suggesting that in .such a case the
impugned subsequent conduct of the accused may give rise
to some other charges under the Indian Penal Code, but it
cannot justify bis re-arrest. Fortunately that does not appear
to be the true legal position if the relevant provisions of the
Code in regard to the grant of bail are considered as a whole
along with the provisions of s. S61A of the Code.
It now remains to consider .the decision of the Privy
Council in Lala Jairam Das de Others v. King Emperor('), be·
cause Shri Purushottam has very strongly relied on some of
the t>bservations made in that case. According to that decision, ~he provisions of the Code of Criminal Procedure confer no power on High Courts to grant bail to a person who
has been convicted and sentenced fo imprist>nment and to
(') (1945) L.R. 72 I.A. 120, 132.
19J8
Talab Haji
Husain
v.
M adliukar Puuhutta.m Afondkar
Gajcndragadkur ,/,
1958
Talab Haji
Hu.asain
v.
Mudhukar Purlllwt·
tam Mondknr
G11je:1ulra9adkflr J.
SUPREME COURT REPORTS
[1958]
whom His .Majesty in Council ha1; given special leave to appeal against his sentence and conviction. Divergent views had
been expressed by the High Courts in this country on the
question as to the High Courts' power to grant bail to convicted persons wht> had been given special leave to appeal to
the Privy Council; these views and the scheme of the Code in
regard to the grant of bail were examined by Lord Russel of
Killowen who delivered the judgment of the Board in Lala
Jairam Das's case('). The decision has thus no application to
the facts before us; but Shri Purushottam relies on certain
observations made in the judgment. It has been observed in
that judgment that "their Lordships take the view that Ch.
XXXIX of the Code together with s. 426 is, and was intend
to contain, a complete and exhaustive statement of the powers
of a High Court in India to grant bail, and excludes the exist·
ence of any additit>nal inherent power in a High Court relating to the subject of bail". The judgment further shows
that in their Lordships' opinion, like the High Court of Justice in England, High Courts in India would not have inherent .power to grant bail to a convi~ted person. It would be
clell'l" from the judgment that their Lordships were not called
upon to consider the question about the inherent power of
the High Courts to cancel bail under s. 56 lA. That point did
not obviously arise in the case before them. Even so, in dealing with the question as to whether inherent pt>wer could be
exercised for granting bail to a convicted person, their Lordships did refe·r to s. 561A of the Code and they pointed out
that such a power cannot be properly attributed to the High
Ct>urts because it would, if exeroised, interrupt the serving of
the sentence; and, besides it would, in the event of the appeal
being unsuccessful, result in defeating the ends Of justice. It
was also pointed out that if the bail was allowed in such a
case, the exercise of the inherent power would result in an alteration by the High Court of its judgment which is prohibit-
(') (1945) L.R. 72 I.A. 120, 132.
S.C.R.
SUPREME COURT REPORTS
1239
ed b.y s. 369 of the· Code. In other ,words, their
Lt>rdship~
t9ad
examined the provisions of s. · 561A and came to the concluTalab Haji
sion that the power to grant.bail to a convicted person would
Huaaai"
.
-
~
n0t t\t in with the scheme of Chapter XXXIX of the C:::ode Madloukar Pur""'11·
read with s. 561A: In our opinion, neither this decision 'nor
tam MaruUar
even the observations on which Shri Purushot~ relied can Gajendrr.lfltldkar J.
afford· any assistance in cfeciding the point which this appeal
bas raised before us. Incidentally we may add that it was as
a result of the observations made by the Privy C~uncil in that
case thats. 426 of the Code was amended in 1945 and power
has been conferred on appropriate dourts either to suspend
the sentence or to grant bail as mentioned in the several subsections of s. 426. That is how s. 426(2A) and (2B) now deal
with the subject of bail even though the main section is apart
· of Chapter XXXI which deals with appeals, references and
revisions.
We must . accordingly hold that the view taken by the
Bombay High Court about its inherent power to act in this
case under s. 561A is right and must be ·confirmed~ It is
hardly necessary to add that the inherent power conferred on
High Courts under s. 561A has to be exercised sparingly, carefully and· with caution and only where such exercise is justified by the tests · speciflcally laid down in the section itself;
After all, procedure, whether criminal or civil, must serve
the higher purpose of justiee; and it is only when the ends
of justice are put in jeopardy by the conduct of the accuse.d
that the inherent power can and should be exercised in cases
like the present. The result is that. the aru>eal fails and must
be dismissed.
Appeal dismbsed.