Supreme Court of India
ASLAM BABALAL DESAIversusSTATE OF MAHARASHTRA
- Citation
- 1992 INSC 245
- Decided
- 15 September 1992
- Bench
- A M AHMADI
Holding
Bail granted under Section 167(2) cannot be cancelled merely because a charge‑sheet is filed; cancellation is permissible only on the special grounds enumerated in Sections 437(5) or 439(2) and requires a strong justification beyond the filing of the charge‑sheet.
Summary
The appellant was arrested for offences under Sections 147, 148, 302 and 323 read with 149 IPC and, after the investigating agency failed to file a charge‑sheet within the 90‑day period prescribed by the proviso to Section 167(2) of the CrPC, the Sessions Judge released him on bail. After the charge‑sheet was later filed, the State moved the High Court under Section 439(2) to cancel the bail, which the High Court did, relying on the ratio of Rajnikant Jeevanlal v. Intelligence Officer, NCB. The Supreme Court examined whether bail granted under Section 167(2) can be cancelled merely on the filing of a charge‑sheet and held that such cancellation is not automatic; it can only be effected under Sections 437(5) or 439(2) on strong special grounds. The Court emphasized that the proviso to Section 167(2) is a statutory command to release on bail when investigation is delayed, and that liberty cannot be interfered with lightly. Consequently, the High Court’s order cancelling bail was set aside and the matter remitted for fresh consideration. The appeal was allowed.
Issues considered
- Whether bail granted under the proviso to Section 167(2) of the CrPC for failure to complete investigation within the prescribed period can be cancelled solely on the presentation of a charge‑sheet.
- Whether the power to cancel such bail lies in Section 437(5) or Section 439(2) and what special grounds are required.
- Interpretation of the ‘deemed release’ provision in Section 167(2) in relation to Chapter XXXIII of the CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 154, s. 155, s. 156, s. 157, s. 167(2), s. 173, s. 437(1), s. 437(2), s. 437(5), s. 439(1), s. 439(2), s. 57
- Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 302, s. 323
- Narcotic Drugs & Psychotropic Substances Act, 1985
- Prevention of Corruption Act
Subjects
bailSection 167(2)cancellation of bailcharge‑sheetCrPCpersonal libertynon‑bailable offenceSection 437(5)Section 439(2)
Judgment
ASLAM BABALAL DESAI A
v.
STATE OF MAHARASHTRA
SEPTEMBER 15, 1992
(A.M. AHMADI, M.M. PUNCHHI AND K. RAMASWAMY, JJ.) B
Code of Criminal Procedure 197rSection 167(2)-Bail granted for
failure of prosecution to complete investigation within tim~Whether liable
to be cancelled when challan/chargesheet presented.
A complaint was lodged against the appellant and 8 others, alleging
c
Commission of offences punishable under sections 147, 148, 302 and 323
read with section 149 of I.P.C. in regard to an incident which took place
on 8th September 1990. The appellant was arrested in that connection of
the next day i.e. 9th September 1990. The appellant thereafter made an
application before the Sessions Judge, for being enlarged on bail. That D
was rejected. He approached the High Court but later withdrew the ap-
plication and then once again moved the Sessions Judge for bail under the
proviso to section 167 (2) of the Code on the ground that the investigation
bad not been completed within 90 days and the appellant was released on
bail vide order dated 11th March 1991. The charge-sheet and other docu- E
ments were tendered subsequent thereto and the Stat• of Mauarasbtra
moved an application under Section 439(2) of the .code in the High Court
for cancellation of bail granted by the Sessions Judge. The High Conrt
cancelled the bail vide order dated 31st March 1992 stating that the bail
bad been granted on a technical ground namely, failure to file the char-
gesbeet within the time allowed and since the investigation revealed the F
commission of a serious offence of mrder, on the ratio of this Court's
decision in Rajnikant Jeevanlal Patel v. Intelligence Officer NCB, New Delhi,
(1981) 3 S.C.C. 532, it was open to the High Court to direct cancellation
of the bail. In obedience to the order of the High Court the appellant
surrendered to bis bail. G
Now the question under consideration is can bail granted under the
proviso to subsection (2) of Section 167 of the Criminal Procedure Code
1973, for failure to complate the investigation within the prescribed period
thereunder be cancelled on the mere presentation of the challan (charge
sheet) at any item thereafter. H
545
546 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A Grantig the Special Leave, the Court,
HELD: That the provisions of the Code, in particular sections 57
and 167 manifest the legislative anxiety that once a person's Liberty has
been interfered with by the police arresting him without a court's order or
a warrant the investigation must be carried out within the maximum
B period allowed by the proviso (a) to Section 167(2) of the Code as the said
proviso was introduced in the code by way of enlargement of time for
which the arrested accused could be kept in custody. Therefore the
prosecution agency must realise that if it fails to show a sense of urgency
in the investigation of the case and omits or defaults to file a chargesheet
C within the time prescribed, the accused would be entitled to he released on
bail and the order passed to that effect under section 167 (2) would be an
order under Section 437(1) or (2) or 439 (1) of the Code. Since section 167
does not empower cancellation of the bail the power to cancel the bail can
only be traced to section 437 (5) or 439 f2) of the code. The bail can then
D be cancelled on considerations which ae valid for cancellation of bail
granted under section 437(1) or (2) or 439(1) of the code. The fact that the
bail was earlier rejected or that it was secured by the thrust of proviso (a)
of section 167(2) of the code then recedes in the background. Once the
accused has been released on bail, bis liberty cannot be interfered with
lightly i.e. on the ground that the prosecution has subsequently submitted
E a charge sheet. Such a view would introduce a sense of complacency in the
investigating agency and would distroy the very purpose of instilling a
sense of urgency expected by sections 57 and 167(2) of the code.
(566 F-H, 567 A-BJ
F So, once an accused is released on bail under section 167(2) he
cannot be taken back in custody merely on the filing of a chargesheet but
there must exist special reasons for so doing besides the fact that the
chargesheet reveals the commission of a non-bailable crime. The ratio of
Rajnikant's case to the extent it Is inconsistent herewith, does not, with
G respect, state the law correctly. (567-C]
Further, even where two views are possible, this being a matter
belonging to the field of criminal justice involving the liberty of an in·
dividual, the provision must be construed strictly in favour of individual,
liberty since even the law expects early completion of the investigation. The
H delay in completion of the investigation can be on pain of the accused
ASLAM BABALAL v. STATE 547
being released on bail. The prosecution cannot be allowed to trifle with A
individual liberty if it does not take its task seriously and does not
complete it within the time allowed by law. It would also result in
avoidable difficulty to the accused if the latter is asked to secure a surety
and a few days later be placed behind the bars at the sweet will of the
prosecution on production of a charge sheet. Thus unelss there are strong B
grounds for cancellation of the bail the bail once granted cannot be
cancelled on mere production of the charge sheet. This view is consistent
with the court's view in the case of Bashir & Raghubii; (1978] 1 SCR 585
but if any ambiguity has arisen on account of certain observations in
Rajni-Kant,s case, our endeavour is to clear the same and set the con-
troversy at rest. (567 D-G] C
The impugned order of the High Court is set aside and the matter
~ remitted to the High Court for reconsideration and disposal on merits
Jn the light of the legal position bereinabove stated. (567-H]
The following cases were considered, Bashir & Ors. v. State of D
Haryana, (1978] 1 S.C.R. 585; Raghubir Singh & Ors. v. State of Bihar,
(1986] 3 S.C.R. 802; Rajnikant Jeevanlal Patel v. Intelligence Officer NCB,
New Delhi, (1989] 3 SCC 532; State (Delhi Admn.) v. Sanjay Gandhi,
(1978] 2 SCC 411 and Bhagirathsinh S!o Mahipat Singh Judeja v. State of
Gujarat, [1984] 1 sec 284. E
As per Pun.:hhi, !.
The question which requires determination in this appeal rather is in
contrast to the one posed by brother Ahmadi, J. i.e. whether an order
granting bail under the proviso to sub-section (2) of Section 167 of the code F
of Criminal Procedure 1973, for failure to complete the investigation within
the period prescribed thereunder, after the presentation of the challan
(charge sheet) can be recalled or reviewed and on what grounds? [568-C]
The view of this Court ever since the decision in State Delhi Ad-
ministration v. Sanjay Gangh~ (19781 2 sec 411 has been that when a G
decision of bail already made on merit after due deliberation, is required
to be reviewed on prayer for cancellation of bail it would require the
exercise to be undertaken with the necessary care and circumspection. In
the above referred case this question arose in the backdrop of Section 439
(2) of the Code wherein the High Court or court of Sessions can direct H
548 SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.
A that any such person who has been realeased on bail under chapter
XXXIII be arrested and committed to custody. So also Is the power to
cancel bail Is exercisable vis-a-vis an order p&ssed by the High Court or
Sessions Conrts under sub-section (1) of Section 439, sub-sections (1) &
(2) of Section 437 of the Code since bail orders under the aforesaid
provisions by the very nature are decisions on merit and if a review is
B attempted a strong case has to be made out so as to secure cancellation
of bail. Hence the apparent distinction in the approach of the court while
granting bail and cancelling bail. [568-H, 569 B-C]
The code designedly classifies offences bailable as well as non bail-
C able and in case of non bailable offences it is left to the discretion of the
Court. The power of arrest and detention is integral part of the investigat·
ing process and that of the trial in order to preserve on the one band an
individual's personal dignity and on the other the general interests of the
society at large and the concept of bail is an inter-position between the
D two. The constitution and our laws are so designed. The tests to be applied
by courts In granting bail is by reference to many considerations such as
the nature of the accusation. The evidence in support thereof, the severity
of punishment or conviction which would entail the character, behaviour,
means and standing of the accused etc. At the same time larger interest of
the State have to be kept in view in granting or refusing bail and thus the
E court Is obligated to strike a balance. So a bail order-on-default is, a
specie apart which involves no such deliberation and so cannot be equated
with bail orders passed on merit by a court other than a High Court or a
Court of Sessions under sub-sections (1) and (2) of section 437 or such a
bail order passed by the High Court or Court of Sessions under sub
F section (1) of Section 439 of Cr.P.C. Such a compulsive bail by the thrust
of section 167(2) can in no event be termed as a decision on merit to which
the dlstrictive approach as given in Sanjay Gandhi's case is to play its
significant part when effort to cancel bail is attempted. [569 D-H, 570 A-C]
Any person released on bail under section 167 (2) shall be deemed
G to be so released under the provision of chapter XXXIII for the purposes
of that chapter and does not ipso facto mean that the bail order assumes
the kind conceived of in sub- section (1) & (2) of Section 437 or Sub-sec-
tion (1) of Section 439 of the Code. Fiction of this kind cannot be per-
mitted to go to the length of converting an order of bail under sub-section
H (2) of Section 167 not on merit as If passed on merit. This view is
ASLAM BABALAL v. STATE 549
expressed by this Court in Bashir & Ors. v. State of Haryana, (1978) 1 SCR A
585. For cancellation of bail even when granted under section 167(2) or
sub-sections (1) & (2) of 437 the only provision employable is section 437
(5) of the Code. [570 D-F]
The existence of special ground for cancellation of bail, over and
above the well known grounds for cancellation of bail granted under B
section's 167(2) of the code was re-affirmed and repeated in Ranghubir
Singh & Ors. v. State of Bihar, [1983) 3 SCR p.826. The same was followed
in Rajnikant Jivanlal & Ors. v. Intelligence Officer, Narocotic Control Bureau,
New Delhi, [19891 3 sec 532. [572-FJ
Thus on analysis off the case law, the conclusion is that a compulsive
c
is bail under 167(2) being not on merit when required to be cancelled after
the filing of the charge sheet or cballan would not involve any review of a
decision made on merit and such bail is cancellable if the court has reason
to entertain the belief that the accused bas committed a non-bailable offence
and it is necessary to arrest him and commit him to custody. The goal of the D
Court in any event is to strike a judicial balance depending on the exigencies
of the situation keeping in view amongst others, the claims of personal
liberty and the larger interests of the State. Thus bail granted under Section
167 (2) of the code cannot debar or deprive the court ofits power to see to the
merits of the case and perform its elementary function to administer justice E
and weigh the claims oo merit. (573 G-H, 574 A-C]
So in the instant case High Court has rightly relied on the decision
of Raghubir case as the basis thereof. Since the accused or the appellant
has committed a non-bailable offence which may invite capital punishment
or imprisonment for life and thus there are sufficient grounds to arrest F
him and commit him into custody. Thus there being strong ground for
cancellation of bail, the view of the High Court thus seems to be right for
thus the appeal must fail and be accordingly dismissed. [574-E)
As per K Ramaswamy, J.
G
Agreeing with the view expressed and the order proposed brother
Admadi, J. the only question in this appeal is whether the liberty had by
the accused by statutory operation of the proviso to section 167 (2) of the
code ipso facto is co-terminus with the filing of the charge sheet (chalan)
under section 173 of the code. (575-C] H
550 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A On receiving complaint or information orally or in writing of the
Commission of a cognizable office Section 154 sets the Criminal Law In
motion. Sections 156 and 157 give the power to investigate the facts and
arrest the offender if necessary. Section 41 empowers the investigating
officer to arrest any person concerning the said cognizable offence. Section
B 57 is supplement to and effectuates the constitutional mandate of Article
22(2) that every person arrested and detained in custody shall be
produced before the nearest Magistrate etc. etc. It suppliments section 167
(1). The detention period is not to exceed 90 days, when the offence
committed is punishable with death or imprisonment for life or imprison·
ment for a term of not less than 10 years. Every person being released on
C bail for non completion of investigation within the requisite period, shall
be deemed to be released under the provision of Chapter XXXIII. Under
clause (b) of sub-section (2) of section 167 production of the accused the
Magistrate is mandatory before authorising detention of the accused in
custody under that section. [575 D-H, 576 A-Bl
D If the investigation is not completed and cbargesbeet is not liled
within 90/60 days based on the nature of offence then under section 173, the
law mandates that the accused be released, if he is prepared to and does
furnish the bail, by operation of explanation 1 to section 167 (2). This
proviso puts an embargo on the power of the court to extend remand on
E expiry of 90/60 days. This was meant to expedite investigation and to incul·
cate a sense of urgency. Such a release is by fiction of law as if one under
Chapter XXXIII which includes sections 437 & 439 which empower the
Court of Session and the High Court to release the accused on ball and also
empowers to cancel the bail so granted. The relevant provisions of cancella·
lion of bail have been considered by brother Ahmadi, J. [577 B·C, 577 G-H]
F
The scope of this proviso in Natabar Parida & Ors. v. State of Orissa,
[1975] Cr. LJ. 1212 and in Central Bureau of Investigation v. Anupam J.
Kulkarni, J.T. (1992) 3 SC 366 bas been reiterated Whereas in Rajnikant
Jivanla/ & Ors. v. Intelligence Officer Narcotic Control Bun!au, [1989] 3 !:'CC
G 532 upheld cancellation of the bail on liling the cbargesbeet for an off;·nce
under Narcotic Drugs Psychotropic Substance Act 1985. [578-C]
Undoubtedly by operation of the proviso to section 167(2) ol the
Code, the accused is entitled to bail due to default of not completinio the
investigation within the prescribed period of 90/60 days and not on me ~its.
H The fiction of law under the proviso applying the provisions in Chirpier
ASLAM BABALAL v. STATE [AHMADI, J.] 551
XXXIII is to serve the purpose of law. [581-D] A
The purpose of interpretation is to sustain the law. The Court must
interpret the words or the language in the statute to promote public good
and misuse of power is inter dieted. (582-A]
Criminal Law primarily concerns with social protection and B
prescribes rules of behaviour to be observed by all. Law punishes for
defiance, transgression violation or omission. Liberty of the individual and
security and order of the society or public order are delicate and yet
paramount considerations. Undue emphasis on either would impede har-
mony and hamper public good as well as disturb social weal and peace. To
keep the weal balanced, must be the prime duty of the Judiciary. (582-B] C
Thus the purpose of the proviso to section 167 (2) read with Chapter
XXXIII of the code is to impress upon the need for expeditious completion
of the investigation by the police officer within the prescribed limitation and
to prevent laxity in that behalt On its default the release of the accused on D
bail shall be furnished if the accused is ready and does furnish the bail. At
the same time during investigation or trial the power of the court to have the
bail cancelled and have the accused taken into custody are presen-ed. But as
interpreted by this Court on the happening of the catalyst act i.e. expiry of
90/60 days, the hammer of release on default would fall. Aller filing of the
charge sheet, to have the bail cancelled on committing the accused for trial E
or taking cognizance of the offence would depend on the nature of the
evidence collected the conduct of the accused after the release and all other
relevant facts. (582 C-H]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. F
559of1992.
From the Judgment aod Order dated 31.3.1992 of the Bombay High
Court in Criminal Application No. 842 of 1991.
S.V. Deshpaode for the Appellaot. G
A.S. Bhasme for the Respondent.
The Judgments of the Court were delivered by
AHMADI, J. Special leave graoted. H
552 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A Can bail granted under the proviso to Sub-section (2) of Section 167
of the Code of Criminal Procedure, 1973 (hereafter called 'the Code') for
failure to complete the investigation within the period prescribed there-
under be cancelled on the mere presentation of the challan (charge-sheet)
at any time thereafter? This is the question which we are called upon to
answer in the backdrop of the following facts.
B
A complaint was lodged against the appellant and 8 others at Miraj
City Police Station, District Sangli alleging commission of offences punish-
able under Sections 147, 148, 302 and 323 read with Section 149 IPC, in
regard to an incident which took place at about 11 p.m. on 8th September,
C 1990. The appellant was arrested in that connection on the next day i.e. 9th
September, 1990. The appellant thereafter made an application before the
Sessions Judge, Sangli for being enlarged on bail That application was
rejected. The appellant approached the High Court but later withdrew the
application and then once again moved the Sessions Judge, Sangli for bail
D under the proviso to Section 167 (2) of the Code on the ground that the
investigation had not been completed within 90 days. The learned Sessions
Judge by his order dated 11th March, 1991 directed the release of the
appellant on bail. After the charge-sheet was submitted and the documents
were tendered subsequent thereto, the State of Maharashtra moved an
application under Section 439 (2) of the Code in the High Court for
E cancellation of bail granted by the Sessions Judge. The High Court by the
impugned Order dated 31st March, 1992 cancelled the bail. The High
Court was of the view that since the learned Sessions Judge had granted
bail on a technical ground, namely, failure to file the charge-sheet within
the time allowed and since the investigation revealed the commission of a
F serious offence of murder, on the ratio of this Court's decision in Rajnikant
Jeevanlal Patel v. Intelligence Officer NCB, New Delhi, [1989] 3 SCC 532 it
was open to the High Court to direct cancellation of the bail. On this line
of reasoning the High Court cancelled the bail and directed the appellant
to surrender to the bail. In obedience to that order the appellant has
surrendered to his bail. These, in brief, are the facts which have a bearing
G on the question under consideration.
Sub-section ( 1) of Section 167 insofar as it is relevant for our puq ise
provides that whenever any person is arrested and detained in custody .nd
it appears that the investigation cannot be completed within 24 hours ind
H there are grounds for believing that the accusation or information is veil
AST"AM BABALAL v. STATE [AHMADI, J.] 553
founded, the officer-in-charge of the police station or the investigating A
officer not below the rank of Sub Inspector shall forthwith transmit to the
nearest Judicial Magistrate a copy of the entries in the diary and forward
the accused to such Magistrate. Sub-Section (2) of Section 167 which has
bearing on the question under consideration may be extracted at this stage:
"167 (2):- The Magistrate to whom and accused person is B
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; and if he has no jurisdiction to try the case c
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 -
D
(a) the Magistrate may authorise the detention of the
accused persons, otherwise than in the 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 E
custody under this paragraph for a total period exceeding, -
(i) ninety days, where the investigation relates to an offence
punishable with death, imprisonment for life or imprison-
ment for a term of not less than ten years;
F
(ii) sixty days, where the investigation relates to any other
offence, and, on the expiry of the said period of ninety days,
or sixty days, as the case may be, the accused person shall
be released on bail if he is prepared to and does furnish
bail, and every person released on bail under this sub-sec-
tion shall be deemed to be so released under the provisions
G
of Chapter XXXIII for the purposes of that Chapter:
At this stage we may mention that the State of Maharashtra :ias not made
any amendment in the aforesaid provision. On a plain reading of this
sub-section it becomes clear that the Magistrate to whom the accused is H
554 SUPREME COURT REPORTS[l992) SUPP. 1 S.C.R.
A forwarded may authorise his detention in such custody as he may think fit
for a term not exceeding 15 days in the whole. If the Magistrate has no
jurisdiction to try the case or commit it for trial, and considers further
detention unnecessary, he is required to order the accused to be forwarded
to a Magistrate haivng jurisdiction. Such Magistrate may authorise his
detention beyond the period of 15 days if adequate grounds exist but no
B
Magistrate can authorise the detention of the accused persons in custody
for a total period exceeding 90 days or 60 days .S the case may be
depending on the nature of the crime alleged to have been coffimitted. The·
proviso, therefore, fixes the outer limit within which the investigation must
be completed and if the same is not completed within the said prescribed
C period, the accused has a right to be released on bail if he is prepared to
and does furnish bail. Where a person in released on bail in such cir-
cumstances under the said sub-section, such release must be deemed to be
one under the provisions of Chapter XXXIII of the Code which contains
provisions in regard to bail and bonds. In the present case, as stated earlier,
D the appellant had applied for bail before the expiry of the period of 90 days
which was refused by the learned Sessions Jndge since the offence allegedly
committed was of a serious nature. However, unfortunately the investigat-
ing agency did not show urgency and did not complete the investigation
within the maximum period allowed by the proviso to Section 167 (2) and
hence on the appellant making an application for release on bail, the
E learned Sessions Judge had no alternative but to direct that he be released
on bail on his executing a bond for Rs. 5,000 with one surety for like
amount. Undoubtedly this release was solely on account of the fact that
the investigating agency had failed to complete the investigation within the
maximum period allowed by the proviso to Section 167 (2) i.e. 90 days. This
F default on the part of the investigating agency enabled the appellant to seek
and secure his release on bail. The investigating agency submitted the
charge-sheet at a later date and appended the documents subsequent
thereto. On the completion of the charge-sheet the investigating agency
moved the High Court for cancellation of the bail under Section 439(2) of
the Code. The High Court lur reasons already stated earlier cancelled the
G bail and directed that the appellant be taken into custody.
Chapter XX.XIII of the Code comprises Sections 436 to 450; "of these
Sections 437 and 439 have relevance so far as the question at issue is
concerned. Sub-sections (1) & (2) of Section 437 insofar as relevant
H provide as under:
ASLAM BABALAL v. STATE [AHMADI, J.] 555
"437 • When bail may be taken in case of non-bailable A
offence .• (1) When any person accused of, or suspected
of, the commission of any non-bailable offence is arrested
or detained without warrant by an office_r in charge of a
police station or appears or is brought before a Court other
than the High Court or Court of Session, he may be
B
released on bail, but •
(i) Such person shall not be so released if there appears
reasonable grounds for believing that be has been guilty of
an offence punishable with death or imprisonment for life;
(ii) Such person shall not be released if such offence is a
c
cognizable offence and he had been priviously convicted
of an offence punishable with death, imprisonment for life
or imprisonment for seven years or more, or he had been
previously convicte\I on two or more occasions of a non·
bailable and cognizable offence. D
(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 accnsed
bas committed a non-bailable offence, but that there are
sufficient grounds for further inquiry into his guilt, the
E
accused shall, subject to the provisions of Section 446-A
and 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." F
Sub-section (5) of Section 437 empowers the Court which has released the
person on bail under Sub-sections (1) or (2) to cause his arrest and commit
him to custody, if it considers it .necessary so to do. Section 439 empowers
a High Court or a Court of Session to release any person accused of an
offence and in custody on bail. Sub-section (2) next provides that a High G
Court or a Court of Se.ssinn may direct that any person who has been
released on bail under this Chapter be arrested and commit him to custody.
It will thus be seen from the aforesaid two Sections that while power has
been conferred on courts for grant of bai~ power has also been conferred
for cancellation of bail in fit cases. The language of the proviso of Sub-sec- H
556 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A tion (2) of Section 167 specifically states that when an accused person is
released on bail for failure to complete the investigation within the time
prescribed, every person so released on bail 'shall be deemed to be so
released under the provisions of Chapter XXXIII for the purposes of this
Chapter'.
B Now before we proceed to deal with the submissions made before us
it is necessary to bear in mind the scheme of the Code insofar as it relates
to investigation on the criminal law having been set in motion by the filing
of a First Information Report. Section 41 empowers any police officer to
arrest any person without an order from the Magistrate or without a
C warrant in the cases catalogued at clauses (a) to (i) of Sub-section (1)
thereof. Section 57 next provides that the person arrested shall not be
detained in custody by the police officer for a period longer than that which
is reasonable but such period shall not exceed 24 hours exclusive of the
time nece&•ary for journey from the place of arrest to the Magistrate's court
in the absence of a special order under Section 167 of the Code. Article
D 22(2) of the Constitution also provides that every person who is arreste<i
and detained in custody shall be produced before the nearest Magistrate
within a person of 24 hours of such arrest excluding the time necessary for
journey from the place of arrest to the court of Magistrate and no such
person shall be detained in custody beyond the said period without the
E authority of the Magistrate. Sections 154 and 155 enjoin on an officer-in-
charge of a police station to record every information relating to a cog-
nizable or a non-cognizable offence. Section 156 empowers an officer-
in-charge of a police station to investigate any cognizable offence without
a formal order of a Magistrate. Such an investigation can also be under-
taken, if empowered by a Magistrate under Section 190 of the Code.
F Section 157 prescribes the procedure for investigation with which we are
not concerned. It is in this backdrop that we must consider the scope and
ambit of Section 167 of the Code. It will be &een from the above scheme
that the Code expects that once a perwn is arrested and detained in
custody, the investigation must be completed as far as possible within 24
G hours. If that is not possible, the arrested or detained person must be
produced before the nearest Magistrate before the expiry of 24 hours
excluding the time consumed during journey to the Magistrate's court. If
the investigation cannot be completed within the &aid period of 24 hours,
the Magistrate before whom the accused person is produced, whether he
H has or has not jurisdiction to try the case, can authorise his further
ASLAM BABALAL v. STATE [AHMADI, J.] 557
detention in custody from time to time for a period not exceeding 15 days A
in the whole. If he has no jurisdiction to try the case or commit for trial
and considers his further detention unnecessary, he must forward the
accused to the Magistrate having jurisdiction. Such Magistrate may
authorise the further detention of the accused person otherwise than in the
custody of the police, beyond the period of 15 days if he is satisfied that B
adequate grounds exist for so doing. But even he cannot authorise the
detention of the accused person in custody for a period exceeding 90 days,
if the investigation relates to an offence punishable with death, imprison-
ment for life or imprisomnent for a term of not less than 10 years, or 60
days where the investigation relates to any other offence, if the accused
person is prepared to furnish bail. In other words if on the expiry of the C
aforesaid period of 90/60 days, the accused person offers to furnish bail,
the Magistrate· is bound to release him on bail and such released shall be
deemed to be under Chapter XXXIII of the Code. As pointed out earlier
Chapter XXXIII which includes Sections 437 and 439 relevant for our
purpose empowers the court to release an accused person on bail and at D
the same time also provides for cancellation of bail in certain eventualities.
The legislative history of Section 167 shows that under the Code of 1898
the detention of an accused person in custody was not permitted for a term
exceeding 15 days in the whole. This provision was breached by the
convenient practice, albeit of doubtful legality, of filing a 'preliminary'
charge-sheet and then seeking remand under Section 344 (Section 309 E
under the Code) which really did not come into play during investigation.
But it was at the same time realised that in genuine and complex cases the
investigation may not be completed within the short period of 15 days even
if the investigating agency proceeds with the utmost sense of urgency. The
Law Commission had recommended that the period be increased to 60
days but it was apprehended that while this increase would become a rule, F
yet the practice of doubtful legality of filing a preliminary charge-sheet and
seeking remand may not be curbed. The Joint Select Committee, therefore,
felt that the maximum period within which the investigation must be
completed must be provided in the statute and a right should be conferred
on the accused for being released on bail if within the prescribed period G
the investigation is not completed. It, therefore, while retaining Sub-section
(2) of Section 167 in the same language introduced the proviso extracted
earlier prescribing the outer limit within which the investigtion must be
completed. While conferring a right on the accused to be released on bail
it stated that the release so granted shalf be deemed to be one under the
H
558 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A provisions of Chapter XXXllI of the Code. So far as Chapter XXXIII is
concerned, Section 437 has since undergone an amendment w.e.f. 23rd
September, 1980, vide Criminal Procedure (Amendment) Act, 1980. It is
not necessary to note the background of the amendment but it is sufficient
to state that once bail has been granted under that provision it can be
cancelled and the accused person can be arrested and committed to
B custody if the court considers it necessary so to do. That is the import of
Sub-section (5) of Section 437 of the Code. The circumstances in which
the court will exercise the power of the cancellation of bail have been set
out in a number of judgments of this Court to which we will have an
occasion to refer a little later. At this stage it is sufficient to state that the
c Legislature has conferred on the court the power to grant bail as well as
to cancel the same. Similarly Sub-section (1) of.Section 439 empowers the
High Court as well as the Court of Session to direct any accused person
to be released on bail. Such-section (2) thereof provides that the High
Court or the Court of Session may cancel bail and direct that the person
D released on bail under Sub-section (1) be re-arrested and re-committed to
custody. Here again the circumstances under which the court will exercise
the power conferred by Section 439(2) will have to be noticed later. This
in brief is the scheme of the Code. In the backdrop of this scheme we have
to consider the question whether bail once granted under Sub-section (2)
of Section 167 of the Code for failure to complete the investigation within
E the prescribed time can be cancelled on the mere ground that subsequently
a charge-sheet has been produced which discloses that the accused person
has committed a serious crime punishable with death or imprisonment for
life or imprisonment for a term ~xceeding 10 years.
We may now notice tl!e case law on the subject. In Bashir & Others
F v. State of Haryana, [1978] 1 SCR 585 the FIR lodged against eleven
persons disclosed the commission of an offence punishable under Sections
302/149 IPC. Eight of the eleven accused persons were released on bail but
the bail application of the remaining three persons were rejected on the
ground that they were the authors of the fatal injuries. The High Court too
G declined to grant them bail. However, as the challan was not filed within
the time prescribed the remaining three accused were also released on bail
under Section 167 (2) of the Code. Subsequently the police filed the challan
and thereupon all the eleven accused were committed to stand trial before
the Session Court. An application for cancellation of the bail of the three
H accused persons whose bail was earlier rejected was moved on the ground
ASIAM BABALAL v. STATE [AHMADI, J.] 559
that they were released under Section 167(2) for failure to file the challans A
within the prescribed time and since the challans were filed, the Court
should cancel their bail. The Sessions Judge allowed the application and
ordered cancellation of the bail on the ground that on the filing of the
challans the court had jurisdiction to do so. The High Court dismissed the
appeal. Thereupon this Court was moved by special leave on the plea that B
once the bail is granted under Section 167(2) of the Code it cannot be
cancelled on the mere filing of a challan but could be cancelled only under
Section 437 (5) of the Code. This Court after examining the relevant
provisions to which we have adverted hereinabove concluded as under:
"The power of the Court to cancel bail if it considers c
it necessary is preserved in cases where a person has been
released on bail under Section 437 (1) or (2) and these
provisions are applicable to a person who has been
released under Section 167(2). Under Section 437(2)
when a person is released pending inquiry on the ground D
that there are not sufficient grounds to believe that he had
committed 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 E
under section 167(2) the mere fact that subsequent 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 F
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 the High Court. The fact that before an order was
passed under section 167(2) the bail petitons of the accused
were dismissed on merits is not relevant for the purpose of G
taking action under secion 437(5). Neither is it a valid
ground that subsequent to release of the appellants a cha/Ian
was filed by the police. The court before directing the
arrest of the accused and committing them to custody
should consider it necessary to do so under section 437(5). H
560 SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.
A 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 non-bailable
offence and that it is necessay that he should be arrested
and committed to custody. It may also order arrest and
committal to custody on other grounds such as tampering
B
of the evidence or that his being at large is not in the
interests of justice. But it is necessary that the court should
proceed on the basis that he has been deemed to have been
released under section 437( I) and (2)."
c (emphasis supplied)
It will thus be seen that once an accused person has been released on bail
by the thrust of the proviso to Section 167 (2), the mere fact that sub-
sequent to his release a challan has been filed is not sufficient to cancel
D his bail. In such a situation his bail can be cancelled only if considerations
germane to cancellation of bail under Section 437(5) or for that matter
Section 439{2) exist. That is because the release of a person under Section
167(2) is equated to his release under Chapter XXXIII of the Code.
In Raghubir Singh & Ors. etc. v. State of Bihar, [1986) 3 SCR 802 a
E similar question came up for consideration. In that case on the night
between 29th/30th November, 1984 the Security Police Patrol on duty near
Jogbani Check Post on the Inda Nepal Border intercepted a speeding jeep
with five occupants, one of them being a dismissed !PS officer. He was
wanted. A detention order under the National Security Act was passed
F against him but could not be executed as he liad gone underground. On
being questioned they initially refused to disclose their identity and the
manner in which they behaved aroused suspicion. One of the security
officers however identified the !PS officer and on search of their baggage
a substantial cash was found with one of the occupants. A number of
documents and other articles were also seized which established the iden-
G tity of the fleeing JPS officer. On the basis of the information derived from
the seizure of various documents, cash, etc., an FIR was registered for
offences under Sections 121A, 123, 124A, 153A, 165A; 505 and 120B !PC
and Section 5(3) of the Prevention of Corruption Act. However, before the
submission of the charge-sheet the preventive detention order was served
H on the !PS officer and he was removed to Bhagalpur jail. The other four
ASLAM BABALAL v. STATE [AHMADI, J.] 561
persons were also similarly detained in the same jail. These persons applied A
for bail under the proviso to Section 167(2) of the Code. The learned
Magistrate granted bail but imposed a condition that the surety should be
residents of Araria town. Ultimately these persons could secure sureties
from Araria but could not be released as the preventive detention orders
were in force. Subsequently the surety of all the five persons appeared in B
court and prayed to be discharged, whereupon the learned Magistrate
passed an order discharging him and issued formal warrants of arrest
under Section 444(2) of the Code. At this stage the detention order against
the JPS officer came to be quashed. Subsequently the charge-sheet was
filed in the court of the learned Magistrate by the police. The bail applica-
tion of four of the accused was rejected and the High Court confirmed· the C
same. The case was thereafter transferred to the Special Judge (Vigilance),
Patna. The JPS officer moved an application offering cash security but it
was rejected on the ground that the High Court had already rejected the
application of the other four accused persons. The case was later trans-
ferred to the Special Judge, Bhagalpur. When the matter came to this D
Court one of the grounds urged was that the High Court as well as the
Special Judge were wrong in holding that the order of the Magistrate
directing them to be released on bail under Section 167(2) had come to an
end by the passage of time particularly after cognizance of the case was
taken. Dealing with this contention this Court examined the scope of
Section 167 read with Sections 437 and 439 of the Code and the ratio of E
the decision in Bashir's case and proceeded to observe as under:
"The order for release on bail may however be can-
celled under s. 437(5) or s.439(2). Generally the grounds
for cancellation of bail, broadly, are, interference or at- F
tempt to interefere with the due course of administration
of Justice, or evasion or attempt to evade the course of
justice or abuse of the liberty granted to him .......Where
bail has been granted under the proviso to s.167(2) for the
default of the prosecution· in not completing the investiga-
tion in sixty days after the defect is cured bythe filing of G
a chargesheet, the prosecution may seek to have ·the bail
cancelled on the ground that there are reasonable grounds
to believe that the accused has committed a non•bailable
offence and that it is necessary to arrest him and commit
him to custody. In the last ·mentioned case, one would H
562 SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.
A expect very strong grounds indeed."
Proceeding further while dealing with the facts on hand this Court ob-
served:
"The order for release on bail was not an order on
B
merits but was what one may call an order-on-default, an
order that could be rectified for special reasons after the
defect· was cured. The order was made long ago but for
one reason or the other, the accused failed to take ad-
vantage of the order for several months. Probably for that
c reason, the prosecuting agency did not move in the matter
and seems to have proceeded on the assumption that the
order had lapsed with the filing of the chargesheet. The
question is should we now send the matter down to the
High ·court to give an opportUDity to the prosecution to
move that court for cancellation of bail? Having regard to
D
the entirety of the circumstances, the long lapse of time
. since the original order for bail was made, the consequent
change in circumstances and situation, and the directions
that we have now given for the expeditious disposal of the
case, we do not think that we will be justified in exercising
E our discretion to interfere nnder Article 136 of the Con-
stitution in these matters at this stage."
It will thus be seen that this Court came to the conclusion that once an
order for release on bail is made under the proviso to Section 167(2) it is
F not defeated by lapse of time and on the mere filing of the charge-sheet at
a subsequent date. The order for release on bail can no doubt be cancelled
for special reasons germane to cancellation of bail under sections 437(5)
or 439(2). This Court then set out the gronnds on which generally bail once
granted could be cancelled and then proceeded to state that in the peculiar
facts and circumstances of the case it would not be justified in interfering
'G with the impugned order. Therefore, the final order which the court made
was in the backdrop of the special facts and circumstances of the case.
In Rajinikant's case (supra), Shetty, J. sitting singly during vacation
was concerned with a case in which the accused persons were arrested on
.H 23rd March, 1988 by the officers of the Narcotic Control Bureau at
ASLAM BABALAL v: STATE.[AHMADI, J.]
Bombay. They were produced before the Aqditional. Chief lv!etropolitan A
Magistrate, New Delhi and were. remanded to judicial custopy till 12th
April, 1988. The remand order was subsequently renewed from time to
time. On 10th May, 1988 the accused moved for bail and .while the said
application was pending, a charge-sheet was submitted on 23rd June, 1988
for the commission of offences under Sections 21.·23 and 29 of the Narcotic B
Drugs & Psychotropic Substances Act; 1985. On 22nd July; 1988 the
accused filed an application for bail under Section 167 (2) of t.h«Code .on
the ground that the charge-sheet had been filed after the expiry of the
period of 90 days. The learned Magistrate by his order dated 29th July,
1988 enlarged them on bail. The prosecution sought cancellation of the bail C
but the learned Magistrate did not accede to that request whereupon the
High Court of Delhi was moved under Section 439(2) read with Section
482 of the Code. In that application the nature of offonce committed, the
part played by the accused, the gravity of the offence, etc., were set out. It
was also mentioned that two of the accused persons had ealier absconded
and as such the investigation could not be completed within the time D
prescribed by the proviso to Section 167 (2) of the Code. The High Court
folloing the dicta of Raghubir Singh 's case cancelled the bail; It Was against
this order that the accused approached this Court by special leave under
Article 136 of the Constitution. Shetty, J. after considering the provisions
of Section 167(2) read with Chapter XXXIII of the Code and in particular E
Sections 437(5) and 439(2) came to the following conclusion: ·
" ~ ' " ,
"An order for reiease on bail under proviso (a) to· · · ''
section 167(2) may appropriately be termed as an tirder·
cin-default. Indeed, it is a release on bail on'the defatilt of F
the prosecution in filing charge-sheet Within the prescfi'" ·
bed period. The right to bail under Section 167 (2) · ·
proviso (a) thereto is absolute. It is a legislative eommand ·
and not court's discretion. If the investigating agency fails . ·
to file charge-sheet before the expiry of 90/60 days,.as the .. ·· ·
case may be, the accused in custody should be released G
'
on bail. But at that ·stage,. merits of the case are noNo be.
examined. Not at all. In fact, the Magistrate.has no power
to remand a person beyond the stipulated period of <)()/60
days. He must pass an order .of bail.and _communicate the . , .
same to the accused to furnish the requisite bail. bonds, ..
564 SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.
A The, accused cannot, therefore, claim any special right to
remain on bail. If the investigation reveals that the accused
'has committed a serious offence and charge-sheet is filed,
the bail granted under proviso (a) to Section 167(2) could
be cancelled."
B
On.this line of reasoning the learned Judge upheld the order of the
High Court and refused to interfere. It may here be mentioned that this
Court's decision in Bashir's case was not placed before the learned Judge.
On a conjoint reading of Sections 57 and 167 of the Code it is clear
C that the legislative object was to ensure speedy investigation after a person
has been· taken in custody.. It expects that the investigation should be
completed within 24 hours and if this is not possible within 15 days and
failing that within the time stipulated in clause (a) of the proviso to Section
167(2) of the, Code. The law expects ·that the investigation must be com-
D pleted ·with despatch and the role of the Magistrate is to over-see the
course of investigation and to prevent abuse of the law by the investigating
agency. As stated earlier, the legislative history shows that before the
introduction of the proviso to Section 167 (2) the maximum time allowed
to the investigating agency was 15 days under Sub-section (2) of Section
E 167 failing which the accused could be enlarged on bail. From experience
this ,was found to be insufficient particularly in complex cases and hence
the proviso was added to enable the Magistrate to detain the accused in
custody for a period exceeding 15 days but not exceeding the outer limit
fixed under the proviso (a) to that sub-section. We may here mention that
the period prescribed by the proviso has been enlarged by State amend-
F ments.and wherever there is such enlargement, the proviso Will have to be
read accordingly. The purpose and object of providing for the release of
the accused under Sub-section (2) of Section 167 on the failure of the
investigating agency completing the investigation within the extended time
allowed by the proviso was to instill a sense of urgency in the investiting
·G agency to complete the investigation promptly and within the statutory
time-frame. The deeming fiction. of correlating the release on bail under
Sub-section (2) of Section 167 with Chapter XXXIII, i.e. Sections 437 and
439 of the Code, was to treat the order as one passed under the latter
provisions. Once the order of release is by fiction of Jaw an order passed
H under Sections 437(1) or (2) or 439(1) it follows. as a natural consequence
ASLAM BABALAL v. STATE [AHMADI, l.J 565
thatthe said order can be cancelled under Sub-section (5) of Section-437 A
or Sub-Section (2) of Section 439 on considerations relevant for. cancella-
tion of an order thereunder. As stated in Raghubir Singh's case the grounds
for cancellation under Sections 437(5) and.439(2) are identical, namely,
bail granted under Sections 437(1) or (2) or 439(1) can be cancelled where
(i) the accused misuses his liberty by indulging in similiar criminal activity, B
(ii) interferes with the course of invistigation, (iii) attempts to tamper with
evidence or witnesses, (iv) threatens witnesses or. indulges in similar
activities which would hamper smooth investigation, (v) there is likelihood
of his fleeing to another country, (vi) attempts to make himself scarce by
going underground or becoming unavailable to the investigating agency,
(vii) attempts to place himself beyond the reach.of·his surety, etc. These C
grounds are illustrative and not exhaustive. It must also be remembered
that rejection of bail stands on one footing but. cancellation· of..bail is a
harsh order because it interferes with the liberty of-the.individual and
hence it must not be lightly. resorted to.
D
In State (DelhiAdmn.) v. Sanjay Gandhi, [1978] 2 SCC 411 this Court
observed rejection of bail .when bail is applied for is one thing; cancellation
of a bail already granted i• quite another. It is easier. to reject a bail
application in a non-bailable case then to cancel a bail once granted. That.
is because cancellation of bail interferes with the. liberty .already secured E
by the accused either on the exercise of discretion by .the court or by the
thrust of law. This Court, therefore, observed that the power to take back
in custody an accused .who bas been. enlarged on bail has to be exercised
with care and circumspection. That does not mean that the po.wer though
extraordinary in character must not be exercised even if the ends of justice F
so demand.
In BhagirathsinhS/o Mahipat Singh Judeja v. State of Gujarat, (1984]
1 sec 284 this Court observed that very. cogent and over.whelming cir-
cumstances are necessary for. an order seeking cancellation of the bail.
Even where a prima facie case is established the approach -of the Court in G
the matter of bail is not that the accused should be detained by way of
punishment but. whether the presence of the accused would be . readily
available for trial or that he is likely to abuse the discretion granted in his
favour by tampering. with evidence. It is wrong to think that bails secured
by virtue of the proviso (a) to Section 167 is an .underserved -one. To so H
566 SUPREME COURT REPORTS(l992] SUPP. 1 S.C.R.
A think is to doubt the legislative wisdom in prescribing the outer limit for
filing the charge-sheet and to ignore the legislative history. As pointed out
earlier tho legislative history of Section 167 shows that by proviso (a) the
detention period. was enhanced to a maximum of 90 days from 15 days
earlier allowed. When the Legislature made it obligatory that the accused
shall be released on bail if the charge-sheet is not filed within the outer
B
limit provided by proviso (a), it manifested concern for individual liberty
notwithstanding the gravity of the allegation against the accused. It would
not be permissible to interfere with the legislative mandate on imaginary
apprehensions, e.g., an obliging investigation officer deliberately not filing
the charge.sheet in time, as such misconduct can be dealt with departmen-
c tally. To permit the prosecution to have the bail cancelled on the mere
filing of the charge-sheet is to permit the· police to trifle with individual
liberty at i.ts sweet will and set at naught the purpose and object of the
legislative mandate. The paramount consideration must be to balance the
need to safeguard individual liberty and to protect the interest of ad-
D ministration of justice so as to prevent its failure. In the present case the
High Court cancelled the bail solely on the ground that the bail was granted
on technical gr(}unds and the investigation revealed that there was eye-wit-
ness account disclosing the commission of a serious offence of murder. In
its view the ratio of Rajnikant Jeevanlal Patel's case applies to the case with
foll vigour. We find it difficult to agree.
E
We sum up as under:
, The provisons. of the Code, in particular Sections 57 and 167,
manifest the legislative anxiety that once a persons' liberty has been inter-
F fe~ed with by the police arre~ting him withont a court's order or a warrant,
the investigation must be carried out with utmost urgency and completed
within the maximum period allowed by the proviso (a) to Section 167(2)
of the Code. It must be realised that the said proviso was introduced in the
Code by way of enlargement of time for which the arrested accused could
be kept in custody. Therefore, the prosecuting agency must realise that if
G it fail' to show a sense of urgency in the investigation of the case and omits
or defaults to' file a charge sheet within the time prescribed, the accused
would be entitled to be released on bail and the order passed to that effect
under Section 167 (2) would be an order under Sections 437(1) or (2) or
439(1) of the· Code. Since Section 167 does not empower cancellation of
H the bail; the power to cancel the bail can only be traced to Section 437(5)
ASLAM BABALAL v. STATE [AHMADI, J.] 567
or 439(2) of the Code. The bail can then be cancelled on considerations A
which are valid for cancellation of bail granted under Section 437(1) or (2)
or 439(1) of the Code. The fact that the bail was earlier rejected or that it
was secured by the thrust of proviso (a) to Section 167(2) of the Code then
recedes in the backgronnd. Once the accused has been released on bail his
liberty cannot be interfered with lightly i.e. on the gronnd that the prosecu- B
tion has subsequently submitted a charge-sheet. Such a view would intro-
duce a sense of complacency in the investigating agency and would destroy
the very purpose of instilling a sense of urgency expected by Sections 57
and 167(2) of the Code. We are, therefore, of the view that once an accused
is released on bail under Section 167(2) he cannot be taken back in custody
merely on the filing of a charge-sheet bnt there must exist special reasons C
for so doing besides the fact that the charge-sheet reveals the commission
of a non-bailable crime. The ratio of Rajnikant's case to the extent it is
inconsistent herewith does not, with respect, state the law correctly.
Even where two views are possible, this being a matter belonging to D
the field of criminal justice involving the liberty of an indi~dual, the
provision must be construed strictly in favour of individual liberty since
even the law expects early conipletion of the investigation. The delay in
completion of the investigation can be on pain of the accused being
released on bail. The prosecution cannot be allowed to trifle with individual
liberty if it does not take its task seriously and does not complete it within E
the time allowed by law. It would also result in avoidable difficulty to the
accused if the latter is asked to secure a surety and a few days later be
placed behind the bars at the sweet will of the prosecution on production
of a charge-sheet. We are, therefore, of the view that unless there are
strong grounds for cancellation of the bail, the bail once granted cannot be F
cancelled on mere production of the charge- sheet. The view we are taking
is consistant with this Court's view in the case ofBashir&Raghubir (supra)
but if any ambiguity has arisen on account of certain observations in
Rajnikant's case our endeavour is to clear the same and set the controversy
•~ G
For the above reasons this appeal is allowed and the impugned order
of the High Court is set aside. The matter is remitted to the High Court
for reconsideration and disposal on merits in the light of the legal position
hereinabove stated. H
568 SUPREME COURT REPORTS(1992] SUPP. 1 S.C.R.
A· PUNCHHI, J. I have read with admiration the neat analysis and
exposition of law in the judgment prepared by my learned brother Ahmadi,
J. but respec1fully, though regretfully, I have opted to differ.
The question, as it appears to me, which requires determination in
this appeal rather is (in contrast to the one posed by brother Ahmadi, J.)
B whether an order granting bail under the proviso to sub-section (2) of
Section 167 of the Code of Criminal Procedure, 1973 (hereafter called the
Code) for failure to complete the investigation within the period prescribed
thereunder, after the presentation of the challan (charge-sheet) can be
recalled or reviewed and on what grounds?
c
The facts giving rise to the instant appeal appear in detail in the
judgment prepared by my learned brother Ahmadi, J. and those need not
bear repetition. The culled out. provisions of the Code too, so far relevant
to the facts of the instant case figuring in the said judgment would also
D bear no reproduction. It is to the case law developed by this Court that I
venture to give an explanation which differs with the views thereon ex-
pressed by my learned brother Ahmadi, J.
A three-member Bench of this Court in State (Delhi Administration)
v. Sanjay Gandh~ (1978] 2 SCC 411 ~de the following elemental distinc-
E tion in defming the nature of exercise while cancelling bail:
'Rejectioµ of bail when bail is applied for is one thing;
cancellation of bail already granted is quite another, It is
easier to reject a bail application in a non-bailable case
than to cancel a bail already granted in .such a case. Can-
F cellation of bail Necessarily involves the review of a decision
already made and can by and large by pe.rmitted only if, by
reason of supervening circumstances, it would be no longer
conducive to a fair trial to allow the accused to retain his
freedom during the trial.
G (emphasis supplied)
The view of this Court ever since has been that when a decision of
bail already made on merit, after due deliberation, is required to be
reviewed on prayer for cancellation of bail, it would require the exercise
H to be undertaken with the necessary care and circumspection. Sanjay
ASLAM BABALAL v. STATE [PUNCHHI, J.] 569
Gandhi's case arose in the backdrop of Section 439(2) of the Code A
whereunder the High Court or Court of Session can direct that any person
who has been released on bail under Chapter XXXIll be arrested and
committed to custody. The power of the High Court or Court of Session
to cancel bail is exercisable vis-a-vis an order passed by the High Court or
the Court of Session under sub-section (1) of Section 439, as the case may B
be, as also to an order of bail passed by a Court other than the High Court
or the Court of Session under sub-sections (1) & (2) of Section 437 of the
Code. Bail orders under the aforesaid provisions by the very nature are
decisions on merit and if a review is attempted a strong case has to be
made out so as to secure cancellation of bail. Hence the apparent distinc- C
tion in the approach of the Court while gran•ing bail and cancelling bail.
This field is coverd entirely by judge-made law.
The Code designedly classifies offences bailable as well as non-
' bailable. Whereas bail is the rule in the case of bailable offences, in
non-bailable offences it is left to the discretion of the Court. Designedly, D
serving a purpose, is the power of arrest and detention as an integral part
of the investigating process and that of the trail. This is because a civilized
society has to preserve on the one hand an individual's personal dignity
and on the other the general interests of the society at large and the
concept of bail is an inter-position between the two, seeing through both
without under-mining one or the other. The Constitution and our laws are E
so designed so as to safeguard and protect personal liberty from Govern-
mental power and to authorise the collective use of State powrer permitting
arrest and detention of an individual. to ensure amongst others, domestic
tranquillity and security of public and State. Hence the see-saw for and
against· bail witnessed in courts. The tests to be applied by courts in F
granting bail is by reference to many considerations, such as the nature of
the accusation, the evidence in support thereof, the severity of punishment
on conviction which would entail; the character, behaviour, means and
standing of the accused etc. etc. But alongside is the larger interest of the
State to be kept in view in granting or refusing bail. By no means are the
afore-mentioned factors exhaustive. There may be c'.her considerations G
which may be determinative for taking one view or the other. The Court is
obligated, all the same, to strike a balance. The decision of the Court after
consideration of the afor o factors and other of the like conceivable results
in a verdict judicial in character capable of being reviewed or altered again H
570 SUPREME COURT REPORTS(1992] SUPP. 1 S.C.R.
A by a judicial exercise within judicially set out parameters. A bail order-on-
default is, as goes the coined expression, a specie apart which involves no
such deliberation and so cannot, in my understanding, be equated with bail
orders passed on merit by a Court, other than a High Court or a Court of
Session, wider sub-sections (1) & (2) of Section 437 or such a bail order
passed by the High Court or Court of Session under Sub-section (1) of
B Section 439 of the Criminal Procedure Code .. Such a Compulsive bail by
the thrust of Section 167(2) can in no event be termed as a decision on
merit to which"tbe distinctive approach as given in Sanjay Gandhi's case is
to play its significant part when effort to cancel bail is attempted.
c The mere circumstance that Section 167(2) ordains that every person
released on bail under this sub-section shall be deemed to be so released
under the provisions of Chapter XXXIII for the purposes of that Chapter
does not ipso facto mean that the bail order assumes the content and
character of liail orders on merit, of the-kind conceived of in sub-sections
D (1) and (2) of Section 437 or sub-section (1) of Section 439 of the Code.
The deeming requirement of Section 167(2) puts the release on bail of such
person as if under the provisions of Chapter XXXIII but only for the
purposes of that Chapter. In other words, it means that by this fiction the
provision is to be read as a part of Chapter XXXIII so that it invites the
purposes of that Chapter such as filling of bonds, provision of sureties etc.,
E as also permitting cancellation of bail. It is on the thrust of such inclusion
that cancellation under Section 437 (5) can be attempted as if fictionally
the bail order had been passed under sub-sections (1) and (2) of Section
437 but not on considerations as if the bail order was on merit. Fiction of
this kind cannot be permitted to go to the length of converting an order of
bail not on merit as if passed on merit.
F
A seeming diverse view for what I have expressed above is available
in a decision of a two-member Bench of this Court in Bashir and Others v.
State of Haryana, (1978] 1 SCR 585. The Bench observed at page 589 as
follows:
G
"......As under Section 167(2) a person who bas been
released on the ground that he had been in custody for a
period of over sixty days is deemed to be released under
the provisions of Chapter XXXIII, his release should be
H considered as one under section 437(1) or (2). Section
ASLAM BABALAL v. STATE [PUNCHHI, J.] 571
437(5) empowers the court to direct that the person so A
released may be arrested if it considers it necessary to do
so."
Yet the Bench further went on to observe af page 590 as follows:
"The fact that before an order was passed under Sec- B
tion 167(2) the bail petitions of the accused were dis-
missed on merits is not relevant for the purpose of taking
acting under section 437(5). Neither 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 c
of the accused and committing them to custody should
consider it necessary to do so under section 437(5). This
may be done by the court coming to the conclusion tnat
after the challan had been filed there are sufficient grounds
that the accused had committed a non-bailable offence and
that it is necessary that he should be arrested and committed D
to custody. It may also order arrest and committal to custody
on other grounds such as tampering of the evidence or that
his being at large is not in the interests of jusuce. But it
necessary that the court should proceed on the basis that
he has been deemed to have been released under section E
437 (1) & (2).
(emphasis supplied)
The emphasised words are reflective of the view that the court could
at that stage after the challan is filed be of the opinion that there appear F
sufficient grounds for entertaining the view that the accused had committed
a non-bailable offences and that it was necessary that he should be arrested
and committed to custody. Besides the afore-mentioned ground for can-
cellation, a ground singularly sufficient and special to an order-on-default,
the court may also arrest and commit to custody such person on other G
grounds judicially noted and others relevant; such as tampering of evidence
etc. The later hinted grounds are those grounds which normally weigh with
a court while cancelling a merited bail under section 437(5) when the bail
in strictu sensu has been granted on merit under sub-sections (1) & (2) of
Section 437. But a deemed bail under Chapter XXXIII, under the thrust H
572 SUPREME COURT REPORTS[l992J SUPP. 1 S.C.R.
A of Section 167(2), as is discernible, appears to me on a different footing,
permitting cancellation of bail not only on the well known grounds for
cancellation of bail but also on the special singular ground on the Court's
entertaining the view that there are sufficient grounds that the accused had
committed a non-bailable offence and that it was necessary that he should
B be arrested and committed to custody. The seeming diversity in Bashir's
case crops up only if it is understood that it takes a bail order under section
167(2), as if an order on merit under sub-sections (1) & (2) of section 437.
But if the fiction, as it appears to me, extends to the extent of the bail order
being treated as if passed under Chapter XXXIII and that too under sub-
C sections (1) and (2) of Section 437 read with the provisions of Section
167(2) as part and parcel of that chapter so that the bail order remains an
order passed on default and not on merit, the tangency disappears. And
even if this aspect is ignored, Bashir's case goes on to add a singular and
special ground for cancellation of bail granted under section 167(2) over
and above the other well known grounds for cancellation of bail granted
D under sub-sections (1) & (2) of section 437 of the Code. Tbe provision
employable in that event again in section 437(5) of the Code, notwithstand-
ing the text of the provision, for besides that there is no other provision
with the Court.
E The existence of such. special ground for cancellation of bail, over
and above the well known grounds for cancellation of bail, granted under
section 167(2) of the Code was re-affirmed and repeated in a decision of
this Court by a two-member Bench in Raghubir Singh & Others etc. v. State
of Bihar, [1986] 3 SCR 802 at page 826 by stating as follows:
F
'Where bail has been granted under the proviso to section
167(2) for the default of the prosecution is not completing
the investigation in sixty days, after the defect is cured by
the filing .of a chargesheet, the prosecution may seek to
G have the bail cancelled on the ground that there are
reasonable grounds to believe that the accused has com-
mitted a non-bailable offence and that it is necessary to
arrest him and commit him to custody. In the last men-
tioned case, one would expect very strong grounds in-
H deed."
ASLAM BABALAL v. STATE [PUNCHH!, J.] 573
The strong grounds referred in the context obviously are grounds on A
merits of the case, which are reflective from the formal accusation put in
the challan which the accused bas to face at the trial.
Reghubir Singh's case was followed by a dicision of a Vacation Judge
of this Court in Rajnikant Jivanlal and another v. Intelligence Officer, B
Narcotic Control Bureau, New Delh~ (1989] 3 SCC 532. It was observed at
page 536 as follows:
"An order for release on bail under proviso (a) to Section
167(2) may appropriately be termed as an order-on-
default. Indeed, it is a release on bail on the default of the c
prosecution in filing charge-sheet within the prescribed
perio<l:The right to bail under Section 167(2) proviso (a)
thereto is absolute. It is a legislative command and not
court's discretion. If the investigating agency fails to file
charge-sheet before the expiry of 90/60 days, as the case
may be, the accused in custody· should be released on bail. D
But at that stage, merits of the case are not to be examined.
Not at all. In fact, the Magistrate bas no power to remand
a person beyond the stipulated period of 90/60 days. He
must pass an order of bail and communicate the same to
the accused to furnish the reqilisite bail bonds. E
The accused canno~ therefore, claim any special right to remain on
bail. If the investigation reveals that the accused has committed a serious
offence and chaTge-sheet is filed; the bail granted under proviso (a) to Section
167(2) could be cancelled."
F
(emphasis supplied)
On the analysis of the case law above discussed I have rather come
to the conclusion that a compulsive bail order made by a Court under
Section 167 (2) of the Code being.one not on merit,-wben required to be G
cancelled after the· filing of the cballan, would not involve any review of
a decision made on merit. Such bail is cancellable if the court bas reason
to ·entertain the belief that the accused has committed a non-bailable
offence· and that it is necessary to arrest· him and commit him to custody.
The· occasion to grant or refuse bail on merit becomes available to the H
574 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A Court after the filing of the challan because earlier thereto merit of bail
could not figure at the time to the grant of compulsive bail. The goal of
the court ih any event is to strike a judicial balance depending on the
exigencies of the situation keeping in view amongst others the claims of
personal liberty and the larger interests of the State. It cannot be
B overlooked that a bail order under Section 167(2) of the Code could even
be managed through a convenient investigating officer, however henious
be the crime. The Court would have to grant bail under the mandate of
law, debared as it is to see to the merits of the case at that stage. To say
that thenceforth the Court is for ever shut to see to the merits of the case,
C though it otherwise has power to cancel bail, is to deprive it of its
elementary function to administer justice and weigh the claims on merit
inter se. I would rather loathe for such an interpretation as that would
frustrate justice, and would on the other hand let the Court have the
power to cancel bail, for once examining the merits of the case in such a
situation.
D
The High Court in the instant case when approached for cancellation
of bail applied its mind on the merits of the case and had relied in
Rajnikant Jeevan Lal's case (supra). In my ~ew the High Court rightly
relied on this decision when Raghubir Singh's case (supra) was the basis
E thereof. These two cases have summed up and have drawn the demarcation
between bail orders granted on ·merit and bail granted under the compul-
.sion and thrust of Section 167(2) of the Code and the parameters of
cancellation. Challan for prosecution has been filed. I have seen the
imputation against the appellant, He is described to be a gang leader who
had arrived at the scene of the occurrence along with some others and
F committed the murder of a man on account of gang rivalry. He is accused
of having taken part in it by inflicting wounds on the deceased. The
allegations have supportive eye-witnesses. The accusation against the ap-
pellant is pointedly there. His role in the crime as an active participant
could lead the High Court to entertain the view that the appellant has
G committed a non-bailable offence which may invite capital punishment or
imprisonment for life and that there were sufficient grounds to arrest him
and commit him into custody. And on coming to that view. The strong
ground for cancellation of bail was made out. The view of the High Court
thus seems to me right. For the aforesaid reasons this appeal must fail and
H is accordingly dismissed.
ASLAM BABALAL v. STATE [RAMASWAMY, J.] 575
K. RAMASWAMY, J, The illuminating and weighty, but with mutu/ly A
discardant opinions of my esteemed brethren Ahmadi and Punchhi, JJ.,
have given me an occasion to have insight into the operational zone of
custodial law of the accused during investigation, his entitlement to bail
and the resultant consequences. Since the facts in nutshell were narrated
by my brother Ahmadi, J. in his judgment, the need to reiterate them is B
obviated.
As prefaced by my brother Ahmadi, the only question in this appeal
is whether the liberty had by the accused by statutory operation of the
proviso to sec. 167(2) of the Code of Criminal Procedure, 1973, for short
'the Code' ipso facto is co-tenninus with the filing of the chargesheet C
( challan) under sec.173 of the Code.
The laying of the information under s.154 either orally or in writing
of the commission of a cognizable offence sets the Criminal Law in motion
and the investigating officer under sec.156 acquires power to investigate D
into those offences together with non-cognizable offence, if any. As a part
of the process of invetigation under section. 157, he shall proceed to the
spot to ascertain the facts and if necessary, to take measures for the
discovery and arrest of the offender. In State of M.P. v. Mubarak Al~ A.l.R.
1959 SC 707, this court held that 'investigation starts after the police officer
receives information in regard to an offence under the Code. Investigation E
consists generally of the following steps (a) proceeding to the spot; (b)
ascertainment of the facts and circumstances of the case; and ( c) discovery
and arrest of the suspected offender. Section 41 empowers, him without
an order from a Magistrate and without a warrant, to arrest any person
concerning the said cognizable offence or when entertained reasonable F
suspicion, a reasonable complaint or on ha\jng credible information, in the
circumstances enumerated thereunde. Section 57 (61 of the old Code)
entitles the investigation officer to detain the arrested person in custody,
but within imposed statutory limit, namely he shall not detain the arrested
person in custody for more than 24 hours excluding the requisite time
necessary for the journey from the place of arrest to the Magistrate Court. G
Section 57, is supplemental to and effectuates the constitutional
mandate of Art. 22(2) that every person who is arrested and detained in
custody shall be produced before the nearest Magistrate within a period
of 24 hours of such arrest excluding the time necessary for the journey from H
576 SUPREME COURT REPORTS(l992] SUPP. 1 S.C.R.
A the place of the arrest to the Court of the Magistrate and no such person '
shall be detained in custody beyond the said period without the authority
of a Magistrate. Clause (3)(b) lifts the rigour when the person is arrested
under the provision of the Code or preventive detention law providing for
preventive detention. In other words the precious personal liberty would
B be deprived only according to law. The intendment of Sec. 57 appears to
be that investigation needs completion without 24 hours, but in practice
and invariably it is difficult to complete the investigation within 24 hours.
As its supplement sec.167(1) arms the investigating officer, when there are
grounds to believe that the information is well founded, he shall forthwith
transmit to the nearest Judicial Magistrate, a copy of the entries in the diary
C of the case and shall also forward the accused to such Magistrate and seek
an order extending the custody. Sub·sec. (2) thereto empowers the
Magistrate whether he has or has not jurisdiction to try the case, if he
thinks fit to extend the detention of the accused from time to time and
authorise the detention of the accused in the custody. So, however, it shall
D not exceeding 15 days as a whole. If he has no jurisdiction to try the case
or committing it for trail and considers further detention unnecessary, he
may order the accused to be forwarded to a Magistrate having such
jurisdiction. The proviso thereto further enjoins that the Magistrate may
authorise the detention of the accused person, otherwise than in custody
of the police beyond the period of 15 days only, if he is satisfied that
E adequate grounds exist for doing so. But, however, he is enjoined that no
Magistrate shall authorise the detention of the accused person in custody
for a total period exceeding (i) 90 days, where the investigation relates to
an offence punishable with death, imprisonment for life or imprisonment
for a term of not less than 10 years; (ii) 60 days, where the investigation
F relates to any other offence. On his satisfying that the period of 90 or 60
days, as the case may be, has been expired the accused shall be released
on bail if he is prepared to and does furnish the bail. Every person, so
released on bail, shall be deemed to be released under the provisions of
Chapter XXXIII for the purposes of that Chapter. Under Clause (b) of
sub-sec.(2) of sec.167 production of the accused before the Magistrate is
G mandatory before authorising detention of the accused in custody under
that section.
It is thus clear that during the investigation the police officer without
a warrant from the Magistrate is entitled to keep the accused in police
H custody for 24 hours from the time of such arrest excluding the time
ASLAM BABAIAL v. STATE [RAMASWAMY, J.] 577
necessary to produce him before a Magistrate. An additional 15 days A
detention in police custody is allowed by operation of sub-section (2) of
sec. 167. However, the proviso enables the investigating officer to continue
in an appropriate case, the investigation and also obtain detention (police
custody or judicial custody) to a maximum of 90/60 days based on the
nature of offences. On its failure to complete the inxestigation and filing B
the chargesheet under sec.173, the law mandates the Magistrate to have
the accused relased, if he is prepared to and does furnish the bail. The
expression "the accused person shall be released on bail" indicates the
ligislative mendatory duty of the Magistrate to release the accused on bail.
By operation of explanation 1 to sec.167(2), notwithstanding the expiry of
the period specified in paragraph (a), the accused shall be detained in C
custody 'so long as he does not furnish bail'. The object underlying the
proviso is to prevent the police of the laxity in investigation and detention
of the accused in the police or judicial custody, during the investigation.
T.he law obviously disfavours the detention of the accused in the custody
of the police and if further detention within the outer limit is necessary, D
the reason for such detention in writing shall be laid before the Magistrate
concerned and the detention is not a matter of course. Whenever the
further detention was asked for and is necessary, the Magistrate shall be
satisfied from the repori of the investigation in the diary, which is the
source. The power of remand during investigation was an integral part of
process which is meant to be exercised to aid collection of evidence. E
However, the proviso puts an embargo on the power of the magistrate to
extend remand on expiry of 90/60 days.
Proviso to sec. 167(2) was introduced for the first time under the
Code. The reason appears to be, as stated by the Law Commission's report F
and statement of objects and reasons that Sec.167(2) was honoured more
in breach than in observance and that the police investigation takes a much
longer time. A practice of doubtful legality had grown whereby police filed
a preliminary chargesheet and moved the court for remand under s.309
(344·of old code), which he is not entitled to apply to such remand during
investigation. The power for completion of the investigation with police or G
judicial custody of the accused after 15 days was thus extended upto 90/60
days, as the case may be under clauses (i) and (ii) of the clause (a) of the
provision to sub-sec. (2) of sec.167. This was meant to expedite investiga-
tion and to inculcate the sense of its urgency. The proviso enjoins the
Magistrate that the accused shall be released from detention on. bail. Such H
578 SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.
A a release is by fiction of law as if one under Chapter XXXIII which
includes sec. 437 and sec.439 which empowers the Court of Session and
the High Court to release the accused on bail and also power to cancel the
bail so granted. Brother Ahmadi, J. extracted the relevant provisions of
cancellation of bail and considered the subject witb which I agree. So there
is no need for my separate discussion in that behalf as well.
B
In Natabar Parida & Ors. v. State of Orissa, [1975] Crl. L.J. 1212. a
two judge Bench, at the earliest considered, the scope of the proviso and
held thus:
c "The command of the Legislature in proviso (a) is that the
accused person has got to be released on bail if he is
prepared to and does furnish bail and cannot be kept in
detent,ion beyond the period of 60 days even if the inves-
tigation may still be proceeding. In serious offences of
D criminal conspiracy - murders, dacoities, robberies by
inter-state gangs or the like, it may not be possible for tb.e
police, in the circumstances as they do exist in the various
parts of our country, the complete the investigation within
the period of 60 days. Yet the intention of the Legislature
seems to be to grant no discretion to the court and to make
E it obligatory for it to release the accused on bail. Of course,
it has been provided in proviso (a) that the accused
released on bail under sec.167 will be deemed to be so
released under the provisions of Chapter XXXIII and for
the purposes of that Chapter. That may empower of that
F Chapter. That may empower the court releasing him on
bail, if it considers necessary so to do, to direct that such
person be arrested and committed to custody as provided
in sub-section (5) of sec.437 occurring in Chapter XXXlll.
It is also clear that after the taking of the cognizance the
power of remand is to be exercised under sec. 309 of the
G New Code. But if it is not possible to complete, the inves-
tigation within a period of 60 days then even in serious and
ghastly types of crimes the accused will be entitled to be
released on bail. Such a law may be "paradise for the
criminals" but surely it would not be so, as sometimes it is
H supposed to be, because of the courts, it would be so under
ASLAM BABALAL v. STATE [RAMASWAMY, J.] 579
the command of the Legislature." A
The same view was reiterated in a recent judgment of this court by
another Bench consisting of one of us (Ahmadi,!-) and KJ. Reddy, J. in
Central Bureau of Investigation v.Anupam J. Kulkarni, J.T. (1992) 3 SC 366
and it was stated in the context of construing whether the accused would
be kept in the police or judicial custody after the expiry of 15 days under B
sub-sec.(2) of sec.167 thus : "Now coming to the object and scope of sec.
167, it is well settled that it is supplementary to sec. 57, It is clear from
sec.57 that the investigation should be completed in the first instance within
24 hours, if not the arrested person should be brought by the police before
a Magistrate as provided under sub-sec.167. The law does not authorise C
the police officer to detain and arrest person for more than 24 hours
exclusive of time necessary for the journey from the place of area to the
Magistrate court.
In Bashir & Ors. v. State of Haryana, [1978) 1 SCR 585, a case directly D
on the. point had arisen. Therein also 8 accused were prosecuted for the
offence under sec.302 read with sec.149 I.P.C. for causing the death of one
Sangroo. Investigation was not completed within 90 days. As a result the
accused (though bail was refused on merit earlier) released on bail by
operation of the proviso to sec.167(2) of the Code. On filing the char-
gesheet ( challan), the Magistrate cancelled the bail and committed the E
accused to the Sessions Court. Cancellation of bail was questioned. Ul-
timately in the appeal this court held that:
"A person accused of a non-bailable offence may be
released by a court but he shall not be so released if there F
appear reasonable grounds for believing that he has been
guilty of an offence punishable with death or imprisonment
for life. The two provisos to sub-sec.(1) are not material
and need not be considered. Sub-sec.(2) to sec. 437
provides that if the investigating officer or the court at any
stage of the investigation, inquiry or trial, as the case may G
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, pending such inquiry, the accused shall be
released on bail. Sub-sec.(5) to sec.437 is important. It H
580 SUPREME COURT REPORTS[1992] SUPP. 1 S.C.R.
A provides that any court which has released a person on bail
under sub-sec. (2 ), may, if it considers it necessary so to do,
direct that such person be arrested and commit him to
custody.
JOO( JOO( xxx
B
The fact that before an order was passed under sec.167(2),
the bail petitions of tbe accused were dismissed on merits
is not relevant for the purpose of taking action under
sec.437{5). Neither is it a valid ground that subsequent to
c release of the appellants a challan was filed by the police.
The court before directing tbe arrest of the accused any
committing them to custody should consider it necessary to
do so under section.437(5)."
{emphasis supplied)
D
In Raghubir Singh & Ors. v. State of Bihar, [1986] 3 SCR 802, in
similiar circumstances, this court held at p.81.6 thus:
"The result of our discussion and the case-law in this: An
order for release on bail made under the proviso to s.167(2)
E is not defeated by lapse of time, the filing to the chargesheet
or by remand to custody under s.309(2). The order for
release on bail may however be cancelled under s.437(5)
or s.439(2). Generally the grounds for cancellation of bail,
broadly, are, interference or attempt to interfere with the
F due course of administration of justice, or evasion or at-
tempt to evade the course of justice, or abuse of the liberty
granted to him. The due administration of justice may be
interfered with by intimidating or suborning witnesses, by
interfering with investigation, by creating or causing dis-
appearance of evidence etc. The course of justice may be
G evaded or attempted to be evaded by leaving the country
or going undergound or otherwise placing himelf beyond
the reach of the sureties. He may abuse the liberty granted
to him by indulging in similar or other unlawful acts. Where
bail has been granted under the proviso to s.167{2) for the
H default of the prosecution in not completing the investiga-
ASLAM BABALAL v. STATE [RAMASWAMY, J.) 581
tion in not completing the investigation in 60 days, after the A
defect is cured by the filing of a chargesheet, the prosecution
may seek to have the bail cancelled on the ground that there
are reasonable grounds to believe that the accused has com-
mitted a non-bailable offence and that it is necessary to arrest
him and commit him to custody. In the last mentioned case,
one would expect very strong grounds indeed".
B
In Rajnikant Jivanlal & Anr. v. Intelligence Officer, Narcotic Control
Bureau, [1989) 3 SCC 532, the Vacation Judge, KJ. Shetty, J. upheld
cancellation of the bail on filing the chargesheet for an offence under
Narcotic Drugs Psychotropic Substances Act, 1985. Following this judg- C
ment the impugned order was passed by the High Court of Bombay
cancelling the bail.
Undoubtedly, by operation of the proviso to sec. 167(2) of the Code,
the accused is entitled to bail due to default by the investigating officer in D
completing the investigation and laying the chargesheet within the
prescribed period of 90/60 days and not on merits. The fiction of law under
the proviso applying the provisions in Chapter XXXIII is to serve the
purpose of law, namely not only the release of the accused on taking the
requisite bond and conditions to be incorporated therein as envisaged in
the said Chapter, but also the power of the court to cancel the bail and to E
take the accused into detention for the grounds mentioned under the
relevant provisions in secs.437(5) and 439(2) of the Code. The Legislature
is aware of the pre-existing practice of not filing the chargesheet within 15
days as envisaged under sub-sec.(2) of sec.167 of the old code and the
consequences as well. The doubtful procedure of seeking further detention F
on securing order of remand under sec344 of the Old Code and sec309
of the present Code was to be put to an end to, while preserving the power
to the court to cancel the bail, if circumstances warrant to take the accused
into custody. At the earliest this court in Natabar Parida's case also took
note of the fact that even under sec.167(2) proviso, it might not be possible
to complete the investigation into grave crimes within the outer limit of the G
time set out in the proviso. In the light of the statutory animation to have
the accused released from detention on expiry of 90/60 days if the accused
shall be prepared to and does furnish bail, the consequences are inevitable
and the release is a statutory paradise to the criminals not by judicial fiat
but legislative mandate. H
582 SUPREME COURT REPORTS[l992] SUPP. 1 S.C.R.
A The purpose of interpretation is to sustain the law. The court must
interpret the words or the language in the statute to promote public good
and misuse of power is interdicted. Criminal law primarily concerns with
social protection and prescribes rules of behaviour to be observed by all.
Law punishes for deviance, transgression, violation or omission. Liberty of
the individual and security and order in the society or public order are
B delicate and yet paramount considerations. Undue emphasis on either
would impede harmony and hampers public good as well as distrub social
weal and peace. To keep the weal balanced, must be the prime duty of the
Judiciary. The purpose of the proviso to sec.167(2) read with Chapter
XXXIII of the Code is to impress upon the need for expeditious comple-
C tion of the investigation by the police officer within the prescribed limita-
tion and to prevent Taxity in that behalf. On its default the Magistrate shall
release the accused on bail if the accused is ready and does furnish the
bail. At the same time during investigation or trial the power of the court
to have the bail cancelled and have the accused taken into custody are
D preserved. But as interpreted by this court on the happening of the catalyst
act i.e. expiry of 90/60 days the hammer of release on default would fall.
Later filing of the chargesheet (challan) is not by itself relevant to have the
bail cancelled on committing the accused for trial or taking cognizance of
the offence. As emphasised by this Court in Bashir's and Raghubir's cases,
on curing the defect by filing the chargesheet (challan) if the prosecution
E seeks to have the bail cancelled on the ground that there are reasonable
grounds to believe that the accused has committed a non-bailable offence
and that it is necessary to arrest and commit him into the custody, prima
facie at that stage, strong grounds indeed are necessary. For cancellation
of the bail after filing of the chargesbeet the factum of dismissal of the bail
F on the earlier occasion is not relevant. But during investigation some strong
prima facie evidence and gravity and magnitude of the crime or the marmer
in which the crime was committed and other attending circumstances may
be relevant as prima facie grounds to have a fresh look to cancel the bail.
The grounds for cacellation of the bail in Chapter XXXIII are, de hors the
merits in the matter, namely, necessity due to the conduct of the accused
G and abuse of liberty i.e. obstruction of the smooth investigation or suborn-
ing witnesses or attempting to tamper the evidence, threatening the wit-
nesses with dire consequences or making or attempting to remove himself
beyond the reach of the court to hamper the smooth trial, etc. are inde-
pendent of the merits in the matter. Cancellation of the bail would be
H necessitated by the conduct of the accused himself after the release. I agree
ASLAM BABALAL v. STATE [RAM.'>.SWAMY, J.] 583
with brother Punchhi, J. that it might be possible to abuse the proviso by A
deliberate delay in completing the investigation to facilit&te the release of
the accused oa bail. I also agree that merits 1>1 ought out in the chargosheet
and attending circumstances are relevant, as the boil was granted due to
default of the investigating officer without court's adverting to the merits
but strong grounds are necessary to cancel the bail. To that extent brother
Ahmadi, J. also laid emphasis, namely, strong gorunds are to be made out B
in the chargesheet. With respect I agree with brother Ahmadi's emphasis
that filing the chargesheet (challan) itself is not sufficient. However, I lay
emphasis that the High Court or the Court of Sessions should consider the
merits of the case. With respect, KJ. Shetty, J., laid emphasis on the
subsequent filing of the chargesheet and the power for cancellation under c
secs.437 and 439 of the Code. Unfortunately, the ratio in Parida's and
Bashir's cases was not brought to the notice of the learned Judge, which
was directly on the point and for the reasons stated I find it difficult to
agree with the learned Judge in that respect. I am in full agreement with
the view expressed by brother Ahmadi, J. and the order proposed by him.
D
S.B. Appeal allowed.
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