009 - 1978 - Criminal Law and Procedure

CRIMINAL LAW AND PROCEDURE
R. V. Kelkar*
DURING 1978 the number of reported decisions of the Supreme

Court and the High Courts was well over 700. Within the limited space
and time available for this part of the survey, it was not possible nor
was it aimed at, to cover all these cases. In most of the reported cases,
it was just the application of the well settled principles of law to the
innumerable variety of fact-situations. However, efforts have been made
in some areas to give a detailed appraisal of important leading decisions
of the Supreme Court and High Courts.
I BAIL
Meaning
The decision of the Supreme Court in Moti Ram v. State of M.P.1

would be considered as a very helpful one in the actual working of
the bail law. In this case the Supreme Court had ordered the release
of Moti Ram, a poor mason, on bail on his furnishing bail-bonds to the
satisfaction of the chief judicial magistrate. The magistrate ordered
that a surety in the sum of Rs. 10,000 be produced. Moti Ram was
unable to find such surety; and the magistrate refused to accept Moti
Ram's brother as surety as his assets were in another district. Moti
Ram, therefore, came before the Supreme Court seeking modification of
the original order to the extent that he be released on furnishing surety
in the sum of Rs. 2,000, or on executing a personal bond. Moti Ram's
request was accepted and the court directed the magistrate to release
Moti Ram on his own bond in a sum of Rs. 1,000. While reaching
this decision the Supreme Court subjected the relevant bail provisions
* Reader, Faculty of Law, University of Delhi.
1
1978 Cri. L J . 1703.
186 Annual Survey of Indian Law [ 1978
to rigorous analysis and by a process of close legal reasoning succeeded

in expanding and liberalising the age-old concepts of bail so as to make
them more responsive to the needy and the poor.
The Supreme Court addressed itself to three main issues, (i) can a
person charged with a non-bailable offence be released on his own bond
without sureties ? (ii) in case the bail is granted with sureties, what
should be the criteria for quantifying the amount of bail ? (Hi) can a
surety be rejected simply because he or his estate is situated in a diffe
rent district or state ?
The court invited the Supreme Court Bar Association and the Citizens
for Democracy to assist it as amici curiae, and the Kerala State Bar
Federation was permitted to intervene. The importance of the issues
and the anxiety of the court to deal with them squarely are to an extent
indicated by such steps.
The court started with the observation that although offences have
been classified as bailable and non-bailable, bail has not been defined
in the Criminal Procedure Code, and that the actual sections dealing
with bail are of blurred semantics. The court then considered at length
the legal literature, both Indian and Anglo-American, and reached the
conclusion that bail, loosely used, is comprehensive enough to cover
release on one's own bond with or without sureties.
The Supreme Court then made a survey of the various sections of the
Criminal Procedure Code dealing with bail, and discussed how the term
bail has been used and what it meant in the given context. The survey
was far and wide and included sections 436, 437, 441, 445, 389 of the
Code and also order 21, rule 27 of the Supreme Court Rules. After
having an incisive survey of these bail provisions, the court concluded
by saying :
Bearing in mind the need for liberal interpretation in areas of

social justice, individual freedom and indigent's rights, we hold I
that bail covers both release on one's own bond, with or without!
sureties. When sureties should be demanded and what sum
should be insisted on are dependant on variables.2
The important reform in this area of bail law has come from the
court and not from the legislature. One might say that strictly speaking
*Id. at 1709.
Vol. XIV] Criminal Law and Procedure 187
it is not reform in law, but a reform in the understanding of the age-old

concepts of the bail law. Be that as it may, the decision has brought
about a timely and welcome change that augurs well for the future. The
decision, however, would make the first proviso to section 436 (1) otiose ;
secondly, it might possibly lead to some unforeseen results in releasing
persons on bail under section 167 (2).
The question of criteria for quantifying the amount of bail (where

bail is with sureties) was raised by the court in the beginning, but
suprisingly it did not receive any more attention of the court in its force
ful and otherwise well reasoned judgment.
Regarding the question as to whether the surety can be rejected on

the ground that he or his estate is situate in a different district, the
court apparently relied more on rhetoric, and indicated its disapproval
of the practice followed by magistrates in insisting on having sureties
residing in or having property situated in the district in which the
magistrate's court is situate.
Discretion in granting bail
In case of a bailable offence, bail is a matter of right; and if a person

arrested or detained in any such case is prepared to give bail, section
436 of the Code of Criminal Procedure requires that such person shall
be released on bail. The consequence of non-compliance with this
mandate might be serious, In Dharmu v. Rabindranath* the High Court
of Orissa held that the police officer, who refused to release a person
arrested and detained on a charge of a bailable offence even when such
person was prepared and offered to give bail, was guilty of the offence
of wrongful confinement under section 342 of the Penal Code, and sen
tenced him to a fine of Rs. 200.
In case of a non-bailable offence, bail cannot be claimed as a matter

of right, it depends upon the discretion of the officer in charge of the
police station or the court, as the case may be. The discretion, however,
is to be used judicially and not capriciously. In Gurcharan Singh v. State
(Delhi Admin.)* the Supreme Court discussed the scope and ambit
of sections 437 and 439. Though section 439 confers unlimited powers
on the High Court or the court of session in respect of granting bail yet
such court shall bear in mind the guidelines provided by section
» 1978 Cri. L J. 864.

*1978 Cri. LJ. 129.
188 Annual Survey of Indian Law [19?8
437 to the magistrates for exercising the discretion in granting bail in

respect of non-bailable offences. According to the Supreme Court,
except in those cases where there are reasonable grounds for believing
that the person accused of an offence punishable with death or life
imprisonment has been guilty of such an offence, in all other cases of
non-bailable offences judicial discretion shall always be exercised by the
court in favour of granting bail. Regarding the various considerations in
granting bail, the Supreme Court observed :
The overriding considerations in granting bail...which are

common both in the case of S. 437 (1) and S. 439 (1), Cr. P.
C..-are the nature and gravity of the circumstances in which the
offence is committed; the position and the status of the accused
with reference to the victim and the witnesses; the likelihood, of
the accused fleeing from justice; of repeating the offence; of
jeopardising his own life being faced with a grim prospect of
possible conviction in the case; of tampering with witnesses; the
history of the case as well as of its investigation and other
relevant grounds which, in view of so many variable factors,
cannot be exhaustively set out.5
The Supreme Court, particularly in the context of the case, emphasised

the two paramount considerations in granting bail, viz., likelihood of
the accused fleeing from justice and his tampering with prosecution evi
dence. As these two considerations relate to ensuring a fair trial of the
case in a court of justice, it is essential that due and proper weight
should be bestowed on them apart from other factors.
Considering the facts and the entire position of the case the Supreme
Court held that the sessions judge was wrong in granting bail to the
accused-appellants and that the High Court was right in cancelling the
same.
The principles laid down in the above decision in the Gurcharan Singh
case have been followed in many subsequent decisions of the Supreme
Court and High Courts. Sangappaw. State of Karnataka* is one such
decision. In this case the High Court of Karnataka held that though
the discretion of the High Court or the court of session in granting bail
under section 439 (1) is absolute and unfettered, like all discretionary
powers, it has to be exercised judicially and on well established princi-
*Id. at 136.
• 1978 Cri. L.J. 1367.
pies. Therefore, though the discretionary power under section 439 is

much wider than section 437 (1) and is uncontrolled by the latter, the
reasonable limitations in section 437 (1) which are founded upon a rule of
prudence ought not, ordinarily be departed from by the High Court or
court of session except in special cases. The petitioner in this case had
claimed bail also on the ground of his illness. While rejecting this claim
the High Court observed :
It is not every sickness or infirmity that entitles a person to be

enlarged on bail. The nature and seriousness of the sickness or
infirmity, the suitability or otherwise of the remand to jail
custody and the availability of the necessary medical treatment
and reasonable amenities have to be taken into consideration
along with other circumstances before granting bail on the
ground of illness.7
In Onkar Chand v. State of Punjab* a case was registered against the

petitioner under section 5(2) of the Prevention of Corruption Act read
with sections 161, 162, 406, 420 of the Penal Code. The bail petition
of the petitioner in the court of session was dismissed. In the High
Court while opposing the plea for bail it was urged on behalf of the
state that the investigation against the petitioner was still in progress
and that the bail granted to the petitioner at this stage would blunt the
effectiveness of the investigative process. While accepting this conten
tion and rejecting bail to the petitioner, the High Court of Punjab and
Haryana observed :
The Courts should endeavour to avoid taking of either such a

restrictive view of the salutary bail provisions in the Criminal
Procedure Code as to render itself impotent to protect an
innocent person from harassment, or such permissive view as to
grant bail, anticipatory or otherwise, merely for the asking and
halt even the legitimate investigation in its tracks and thereby
encourage the persons, with allegations of corruption against
them, to mock at the investigating agency and the society, and
having successfully stalled the effective investigation of the case,
manage to go scot free with the loot sufficient to last for genera
tions to come.9
7
Id. at 1373-74.
8
1978 Cri. LftJ. 44,
• id. at 46,
190 Annual Survey of Indian Law [1978
The Punjab and Haryana^High Court went one step further when it
decided the case in Jagjit Singh v. State of Punjab.10 Here a case was
registered against the petitioner under sections 109 and 409 read with
with section 120-B of the Indian Penal Code and section 5(2) of the
Prevention of Corruption Act. While the petitioner was remanded to
judicial custody, his application for bail was rejected by the court of
session. In the High Court it was urged on behalf of the petitioner that
the investigating officer having already held the petitioner in police
custody and that the petitioner now being unavailable to the police for
further interrogation (as he was then in judicial custody), the petitioner
can well be released on bail. While rejecting this plea and dismissing the
petition, the High Court observed :
While it is true that the petitioner cannot be interrogated by the

police, as police custody is denied to the investigating officer,
but during the time he remained associated with the investiga
tion of the case,...he had made startling disclosures and pro
vided clues which have to be worked out by the investigating
agency. The tracks provided by the disclosure statement of
the petitioner have to be probed and while so doing, the inves
tigating agency may come across further evidence of the amas
sing of the wealth by the petitioner. The petitioner, if released
on bail, is very likely to cover his tracks and make it impossible
for the police to unearth the entire gamut of the shady trans
actions, if any,...by forewarning his erstwhile collaborators....11
Long delays in trial and appellate courts, or the protected nature of

the adjudicatory process, have been thought of as an overriding (or rather
overwhelming) consideration in granting bail in recent cases. In
G. Narasimhulu v. Public Prosecutor, A.P.12 the petitioners along with
others were acquitted, but that acquittal was set aside by the High Court
in appeal. They were on bail during the pendency of trial as well as the
appeal. There was no suggestion that they abused the trust reposed in
them by the court allowing them to be at large. The petitioners were in
jail for nearly a year and it was predicted that it would take a few more
years before their appeal could be heard and decided. This means
that incarceration during that period might possibly prove an irrevocable
injury if the appeal ends in their favour. Considering all these factors,
the Supreme Court decided to release the petitioners on bail, though
10
1978 Cri. L J . 759.
11
Id. at 761.
12
1978 Cri. L J . 502.
by way of caution the court imposed some conditions on the petitioners.
It is quite interesting to note the unusual advice given by the Supreme

Court to the petitioners while releasing them on bail. The Supreme
Court said :
It is commendable, if the petitioners choose to report daily

before any therapeutic centre for psychic reformation, such as
a transcendental meditation centre. This is left to their option
but may eventually prove to their good.13
It is of some interest to observe the style of the judgment.14 If one may

say so, it is more of a general discourse on the philosophy and the basics of
the bail law. The discourse is luminous, the style refreshingly forceful.
A much more interesting aspect of the above said discourse is its

verbatim repetition in a later decision in Babu Singh v. State ofU. P.15
The earlier decision in G. Narasimhulu's case was given by Krishna Iyer J.
on 6.12.1977 while the later one in Babu Singh's case was given by a
bench constituted by Krishna Iyer and Desai JJ. on 31.1.1978, the
judgment being delivered by Krishna Iyer J. The G. Narasimhulu decision
consisted of 22 paragraphs out of which nearly 16 paragraphs covering
almost 4 pages were reproduced verbatim in the later decision in the
Babu Singh case. Why was it necessary to do so ? A simple reference
to the earlier decision, it is submitted, would have been sufficient.
In Babu Singh's case, the Supreme Court, inter alia, considered the
unreasonable time taken for the hearing of the appeal as a factor 'which
heavily tips the scales of justice in favour of release pendente lite.' The
court for this purpose heavily relied on its earlier decision in Kashmira
Singh v. State of Punjab,™ and released the petitioners on bail, subject to
certain conditions to be observed by them.
In Babu Mulla v. State of M. P17 the overriding consideration for

granting bail to the applicants was that there was no possibility of the
commencement of their trial for at least the next six months. While
granting bail to them, the High Court of Madhya Pradesh observed :
13
Id. at 507.
14
The petition was heard and decided by Krishna Iyer J.
15
1978 Cri. L J . 651.
» 1977 Cri. L J . 1746.
v )978Cri. LJ f 1846.
If the State cannot provide for adequate machinery for dispen

sing justice quickly, the State cannot be heard to say that the
applicants should be kept in custody without trial up to such a
long time. The remedy can be by way of increasing the strength
of Judges competent to try such cases, but certainly, paucity of
time with the existing judicial machinery to try the accused
expeditiously can be no ground for refusal of the bail. In such
cases as a general rule bails should be granted. It is against all
concepts of human liberty that in such circumstances the appli
cants should be refused bail.18
In Izhar Ahmad v. State,19 the accused-applicants were not produced

before the magistrate on several dates when successive remand orders
were passed by him under section 167 of the Code of Criminal
Procedure, 1973. Further, even after the charge sheet was filed in the
committing magistrate's court, the accused were not produced before the
magistrate when successive remand orders were passed by him under
section 209 (b) during the pendency of the committal proceedings. The
High Court of Allahabad relying on its earlier decision of a Division
Bench held that the non-production of the accused-applicants made their
detention illegal and that though they could not otherwise have been
released on bail on merits, yet they were entitled to be released on bail
because of their detention being illegal.
Similarly, in Syeed Ahmad v. State,20 as the detention of the accused

in custody was not authorised by a proper warrant addressed to the
jailor, the High Court of Allahabad held such detention as illegal and
further held that the accused-applicant was entitled to be released on
bail for the reason of his detention being illegal.
In Superintendent and Remembrancer of Legal Affairs, W. B. v. Mansur

Ali21 the Calcutta High Court held that the court of session presided over
by a sessions judge has got jurisdiction to entertain an application for
bail on behalf of the accused persons in spite of the fact that their
application for bail has already been refused by the additional sessions
judge or the assistant sessions judge to whom the case was made over
for disposal. In view of ssctions 9 and 439, it was held that this power
to entertain such bail application is a special power given to the court
18
Id. at 1846-47.
19
1978 Cri. L J . 58.
*> 1978 Cri. L J . 541.
v 1978 Cri. L J , 1497t
of session and can be exercised quite independently by that court. The

view taken by the Calcutta High Court in this case may create some
difficulties in the actual working, particularly in respect of cases made
over to the additional sessions judges.
Anticipatory bail
The post-emergency year has witnessed a spate of petitions for antici

patory bail. The petitioners were in many cases influential persons who
had wielded enormous powers during emergency and who were, in the
post-emergency era, apprehensive of arrests on the charges of corruption,
misuse or abuse of official positions, etc. The persons involved in the
anticipatory bail proceedings being rich and mighty, they made every
effort to use the law and its machinery to their maximum advantage.
In this process the courts were required to interpret the law discreetly
and with great precision and circumspection. The law relating to anti
cipatory bail has received, thereby, impetus in the process of its growth
and sophistication.
In Gurbaksh Singh v. State of Punjab?* the Full Bench of the Punjab

and Haryana High Court had to consider the general principles and the
necessary guidelines for the exercise by courts of the extraordinary power
of granting anticipatory bail under section 438 of the Code of Criminal
Procedure, 1973. The matter came up before the Full Bench on the
orders of reference passed in respect of five petitions for anticipatory
bail. All these petitions were in connection with one F.I.R. On its basis,
a case under section 5 (1) (d) and (e) read with section 5(2) of the'
Prevention of Corruption Act and sections 406, 409, 477-A and
120-B of the Indian Penal Code was registered against the petitioners
and againt Shri Zail Singh, former Chief Minister of the Congress
Government in Punjab along with some other ministers, office bearers
of the Pradesh Congress Committee and senior government officials.
It was alleged that these persons had conspired to collect huge
funds for the h'olding of a session of the Congress party and to
personally amass wealth by abuse of authority and misuse of power.
It was alleged that the conspirators obtained an amount exceeding
rupees five crores, and also acquired assets disproportionate to their
known sources of income in the form of movable and immovable property
and shares held benami and clandestinely in the names of other persons.
At the outset, the High Court highlighted the two rival views in con-
22
1978 Cri. LJ. 20.
nection with the grant of anticipatory bail. According to one view,

section 438 of the Criminal Procedure Code gives an unlimited and
unrestricted discretion to the court to grant anticipatory bail if and
when it thinks fit; and according to the other view, the power under
section 438 is of an extraordinary nature which is to be exercised in
exceptional circumstances and is plainly circumscribed by the other
provisions of the Criminal Procedure Code.
The High Court considered in detail the legislative history of section

438, the provisions of that section itself, the other relevant and related
provisions of the Criminal Procedure Code, the decision of the Supreme
Court in Balchand Jain v. State of M.P.,2* and that of the Full
Bench of the High Court of Allahabad in Onkar Nath v. Stated In a
well reasoned judgment it expressed its inclination to accept the second
of the two above mentioned views regarding the scope of section 438.
The High Court then addressed itself to the task of determining and
elucidating the kind of cases in which the power to grant anticipatory
bail is to be exercised and the nature of the special case which the
petitioner must make out for securing an order in his favour. The High
Court considered these matters in depth and then for the sake of
clarity summarised the main conclusions in this regard in the following
terms : *
1. That the power under S. 438, Criminal Procedure Code,

is of an extraordinary character and must be exercised sparingly
in exceptional cases only.
2. That neither S. 438, Criminal Procedure Code, nor any

other provisions of the Code authorise the grant of blanket
anticipatory bail for offences not yet committed or with regard
to accusations not so far levelled.
3. That the said power is not unguided or uncanalised but

all the limitations imposed in the preceding S. 437, Criminal
Procedure Code, are implicit therein and must be read into
S. 438 as well.
4. That in addition to the limitations imposed in S. 437 Cri

minal Procedure Code, the petitioner must make out a special
case for the exercise of the power to grant anticipatory bail,
23
1977 Cri. L J 225.
24
1976 Cri. L J . 1143,
Vol. XJV] Criminal Law and Procedure 195
5. That where a legitimate case for the remand of the offender

to the police custody under S.167 (2) can be made out by the *
Investigating Agency or a reasonable claim to secure incrimina
ting material from information likely to be received from the
offender under S. 27 of the Evidence Act can be made out, the
power under S. 438 of the Code be not exercised.
6. That the discretion under S. 438, Criminal Procedure Code,

be not exercised with regard to offences punishable with death
or imprisonment for life unless the Court at that very stage is
satisfied that such a chaige appears to be false or groundless.
7. That the larger interest of the public and State demand that
in serious cases like economic offences involving blatant
corruption at the higher rungs of the executive and political
power, the discretion under S. 438 of the Code be not exercised.
8. That mere general allegations of mala fides in the petition

are inadequate, and the Court must be satisfied on materials
before it that the allegations of mala fides are substantial and
the accusation appears to be false and groundless. 25
It was contended on behalf of the petitioners that anticipatory bail

might be granted to them as they have held high office in public life and
that they are now men of substance who are not likely to abscond and
would willingly face trial. While rejecting the contention, the High
Court observed :
Now if the charge against the petitioners is untenable, it would

be irrespective of their status in public life or with regard to
their property, but if the charge be true the fact of high office
and the earlier wielding of political power is not a mitigation
but only an aggravation of the crime.28
After considering closely the merits of the petitions, the High Court
ultimately came to the conclusion that the petitioners failed to make out
a case for the grant of anticipatory bail and that their petitions were
liable to be dismissed.
In Bansi Lai v. State of Haryana11 a case was registered under the

25
See supra note 22 at 40.
26
Id. at 41.
v 1978 Cri. L J. 472.
Prevention of Corruption Act against Bansi Lai, an erstwhile Chief

Minister of Haryana and later the Defence Minister of India, and
his son. While opposing their application for anticipatory bail
it was argued on behalf of the state that it was essential to submit
both the petitioners to some specialised type of interrogation by
keeping them in custody. This argument was not appreciated by
the single judge of the Punjab and Haryana High Court. The judge
was rather inclined to believe, while allowing the petition, that stress on
the dire necessity of resorting to this type of investigation or interro
gation only reinforced the apprehension of the petitioners that their
custody was being sought for the purpose of subjecting them to undue
victimisation or humiliation for extraneous reasons.
This approach can no longer be considered to be correct in view of

the subsequent decision of the Full Bench of the same High Court in
Gurbaksh Singh's case.28 '
The issue regarding the necessity of having the accused in custody for
proper police interrogation came up before the Supreme Court in Harsh
Sawhney v. Union Territory, Chandigarh*9 though that case related to the
grant of bail, and not anticipatory bail. The judgment is very short and
it is rather difficult to know exactly whether the Supreme Court consi
ders the claim of the police in respect of in-custody interrogation of the
accused person as legitimate and proper in the due discharge of their
lawful powers. In that case the bail application was opposed by the
state on two grounds, (/) the accused-appellant's presence is necessary
for making a search and recovery of certain documents; and (ii) the
appellant's presence is required by the police for interrogation in connec
tion with investigation. Both grounds were rejected by the Supreme
Court. As regards the first ground the court did not think that the
appellant had to be taken into custody for making a search of the pre
mises in her presence. As regards the second ground, the court simply
directed that the appellant shall appear for interrogation by the police
whenever reasonably required, subject to her right under article 20(3) of
the Constitution. It is hoped that the Supreme Court will throw more
light on this important issue in the near future.
In Suresh Vasudeva v. State39 the petitioner approached the Delhi High

Court for grant of anticipatory bail as he apprehended arrest on the
28
See supra note 22,
29
1978 Cri. L J , 774,
« 1978 Cri. L J 677.
Vol. XIV] ♦ Criminal Law and Procedure 197
charge of an offence under the Foreign Exchange Regulation Act,

1973. Earlier, a case under the Prevention of Corruption Act was
registered against R. K. Dhawan, additional private secretary to the
former Prime Minister of India and nine others including the petitioner,
and the petitioner was released on bail in that case. The petitioner
alleged that he was being politically victimised, and prayed for grant of
anticipatory bail.
The High Court of Delhi considered the legislative history of section

438, Criminal Procedure Code, made detailed analysis of that section
and of the relevant provisions of the Foreign Exchange Regulation Act,
referred to the views expressed by the Supreme Court in Balchand Haiti's*1
case and while granting anticipatory bail to the petitioner elucidated
the law as contained in section 438 of the Code. According to the High
Court, section 438 (l)32 applies only to a non-bailable offence; but it is
not essential that the offence must also be a cognizable one. The section
also does not require that the offence in respect of which the anticipatory
bail is asked for must have been registered. All that it contemplates is
that the person applying has reasonable belief that he may be arrested on
accusation of having committed a non-bailable offence. Sub-section (1)
of section 438 has not been made subject to sub-section (3) of that
section. The expression "If such a person is thereafter arrested
without warrant by an officer in charge of a police station" appearing
in sub-section (3), merely illustrates the case of working out an order
for anticipatory bail granted under section 438(1) in respect of a cogni
zable offence, but that does not mean that section 438(1) is limited to
the apprehended arrest only in a cognizable offence or arrest only by
an officer in charge of a police station. Section 438(3) is really what
may be termed as "machinery section" for working out an order under
section 438(1) by way of an illustration. The conditions mentioned
under section 438(2) which may be imposed are merely illustrative,
and that sub-section does not control the power conferred by section
438(1).
In Mahanthagouda v. State of Karnataka,™ the High Court of Karna

taka, relying on the Supreme Court decision in Balchand Jain's case34
and the decision of the Full Bench of the High Court of Punjab and
81
Supra note 23.
88
For details see s. 438 of the Code of Criminal Procedure, 1973.
88
1978 Cri. L J , 1045.
84
Supra note 23.
198 Annual Survey of Indian Law [191 &
Haryana in Gurbaksh Singh's case,35 held that where the nature of a

charge is so serious as to be punishable with death or imprisonment for
life, it would normally be inapt to exercise the power of the grant of
anticipatory bail at the very threshold of the investigation unless the
court at that very stage is satisfied that such a charge is false or. ground
less. Considering the facts and circumstances of the case, the High
Court refused to grant the anticipatory bail as asked for by the
petitioner.
Section 438 gives concurrent powers to the High Court and the court
of session; but, as in other analogous provisions in the Code of Criminal
Procedure, it is normally to be presumed that the court of session would
be first approached for the grant of anticipatory bail unless an adequate
case for not approaching the said court has been made out. In Chajju
Ram v. State of Haryana?* the High Court of Punjab and Haryana reite
rated the legal position as stated above, and as the petitioners in that
case had not shown as to why they had chosen to bypass the court of
session whilst approaching the High Court directly, the High Court
without passing any orders on the petition directed the petioners first
to approach the court of session for the grant of anticipatory bail.
In State of Maharashtra v. Vishwas*1 the High Court of Bombay,

relying on the observations of the Supreme Court in Balchand Jain's
case,38 expressed the view that the initial order of the sessions court
granting anticipatory bail was not sustainable as that court did not
issue notice to the state giving it an opportunity to oppose the
petition for anticipatory bail, nor did the court record its reason as to
why it was not possible to serve such notice on the state. The initial
order of the sessions court suffered from still further infirmity, according
to the Bombay High Court, as the order did not disclose any reason as
to why the court was inclined to make the order granting the anticipatory
bail.
Cancellation of bail
If a person in whose favour an order for anticipatory bail has been

passed under section 438 of the Criminal Procedure Code is thereafter
arrested, he shall be released on bail in accordance with the provisions of
35
1978 Cri. L J . 20.
36
1978 Cri. L J . 608.
87
1978 Cri. L J . 1403.
38
Supra note 23 at 229, 234.
section 438 (3).39 If it becomes necessary, that bail might be cancelled in

accordance with provisions of the Code for cancellation of bail.40 How
ever, can the anticipatory bail itself be cancelled before the regular bail
is actually granted ? No answer to this question is explicitly available
either in section 438 or in any other provision in the Code. The High
Courts of Bombay and Delhi have, however, answered the question in
the affirmative.
In State of Maharashtra v. Vishwas*1 the High Court of Bombay

observed :
By its very nature...orders of bail do not possess irreversible

finality. Law does not inhibit cancellation or revocation of such
orders. In this context when S. 438 permits of making of an
order and order is made granting anticipatory bail, it is implicit
that the Court making such an order is entitled upon appropriate
consideration to cancel or recall the same. It is not necessary
for such purposes to find out any further specific provision
conferring power of cancellation. That in fact flows from the
very character of enabling power so enacted.42
Further, the High Court was of the view that chapter XXXIII, Crimi
nal Procedure Code postulates two types of release on bail, viz., release
after arrest and release from arrest; the first wherein the arrest is accom
plished, while in the second it is in anticipation. Therefore, the High
Court held that persons released on bail and those who have obtained
anticipatory bail are all covered under section 439(2)43 and the bail orders
(including anticipatory bail orders) can be cancelled in respect of all these
persons in appropriate cases.
According to the Delhi High Court, the order for anticipatory bail is
really an order for bail in the event of arrest. Like any other order for
bail, it can always be cancelled in appropriate cases if a case is made out
for the same.44
In Janardan v. State of Bihar** the petitioners were being prosecuted

89
See supra note 32.
40
See s. 437 (5) and s. 439 (2), Cr. P.C, 1973.
41
Supra note 37.
«Id. at 1405.
43
See s. 439 (2) of Cr. P.C.
44
See Suresh Vasudev v. State, supra note 30 at 682.
46
1978 Cri. L J . 1318.
for a bailable offence under section 325, Indian Penal Code and were on
bail. As they were found threatening prosecution witnesses, the magis
trate after due inquiry cancelled their bail bonds. When the matter
came up before the High Court of Patna, that court rightly held that the
magistrate had no power to cancel the bail bond of the petitioners in as
much as they were on bail in a bailable offence.
The power to cancel bail in respect of any offence, whether bailable or

non-bailable, has been conferred on the court of session and the High
Court under section 439 (2). Further, a magistrate granting bail in
respect of non-bailable offence under section 437 (1) or (2) can cancel
the bail bond in such a case if he finds it necessary to do so. However,
when the same magistrate has granted bail in respect of a bailable offence,
and when it is abundantly clear that the accused is interfering with the
course of justice by tampering with witnesses, the magistrate must
helplessly wait till the prosecution succeeds in getting the bail bonds
cancelled by the sessions court or High Court. If the magistrate can be
safely entrusted with the power of cancelling bail in respect of non-bail
able offences, there seems to be no reason why he should not have the
same power in respect of bailable offences. The decision of the Patna
High Court, is undoubtedly correct and in accordance with the law as
it exists today. However, it illustrates the need to reform the law as
indicated above.
The decision of the Supreme Court in Gurcharan Singh v. State (Delhi

Admin.)*6 is of considerable importance as it elucidates at one place
almost all the vital matters in relation to cancellation of bail.
In this case the accused persons ranging from the deputy inspector
general of police and the superintendent of police, at the top, down to
some police constables were allegedly involved in a criminal conspiracy
to kill Sunder and caused his death by drowning him in the river
Jamuna in pursuance of it. The accused were arrested and the
magistrate declined to release them on bail. The accused persons
approached the court of session for grant of bail. Their petitions were
opposed by the state on the ground that there was grave apprehension
of the witnesses being tampered with by the accused persons on account
of their position and influence which they wielded over them.
However, the sessions judge did order their release on bail. The state
moved the High Court for cancellation of the bail order, and the High
Court after considering the facts and circumstances of the case cancelled
46
Supra note 4.
Vol. XlV] Criminal Law and Procedure 20l
the bail bonds. The accused persons appealed to the Supreme Court
by obtaining special leave.
According to section 439(2) of the Code of Criminal Procedure, a

High Court or court of session may direct that any person, who has been
released on bail under chapter -XXXIII of the Code, be arrested and
commit him to custody. The court of session and the High Court
having concurrent jurisdictions, it was contended by the accused-appel
lants that the bail granted by the court of session can be cancelled by
that court alone and not by the High Court. While rejecting this con
tention, the Supreme Court observed :
Under S. 439(2) of the...Code a High Court may commit a

person released on bail under Chapter XXXIII by any Court
including the Court of Session to custody, if it thinks appropriate
to do so. It must, however, be made clear that a Court of
Session cannot cancel a bail which has already been granted by
the High Court unless new circumstances arise during the pro
gress of the trial after an accused person has been admitted to
bail by the High Court. If, however, a Court of Session had
admitted an accused person to bail, the State has two options.
It may move the Sessions Judge if certain new circumstances
have arisen which were not earlier known to the State and nece
ssarily, therefore, to that Court. The State may as well appro
ach the High Court being the superior Court under S. 439(2)
to commit the accused to custody. When, however, the State
is aggrieved by the order of the Sessions Judge granting bail and
there are no new circumstances that have cropped up except
those already existed, it is futile for the State to move the
Sessions Judge again and it is competent in law to move the
High Court for cancellation of the bail. This position follows
from the subordinate position of the Court of Session vis-a-vis
the High Court.47
The Supreme Court considered in great detail provisions of section

437 and discussed how the discretion in granting bail under section 437
is to be exercised by the magistrates in respect of non-bailable offences.
It is true that the wording of section 437 to an extent gives the impression
that the guidelines provided by that section are applicable when the
person accused of a non-bailable offence appears or is brought before
"a court, other than the High Court or Court of Session." However, the
47
Id. at 133.
Supreme Court made it quite clear that these guidelines are also appli
cable when a High Court or court of session is exercising the wide dis
cretion given to it by section 439 (1) in granting bail. In this context
the Supreme Court observed :
It is not possible to hold that the Sessions Judge or the High

Court, certainly enjoying wide powers, will be oblivious of the
considerations of the likelihood of the accused being guilty of
an offence punishable with death or imprisonment for life. Since
the Sessions Judge or the High Court will be approached by an
accused only after refusal of bail by the magistrate, it is not
possible to hold that the mandate of the law of bail under S.
437, Cr. P. C. for the Magistrate will be ignored by the High
Court or by the Sessions Judge.48
Ordinarily, the High Court will not exercise its jurisdiction to interfere
with an order of bail granted by the sessions judge in favour of the
accused. The Supreme Court in this case was satisfied that the High
Court had correctly appreciated the entire position and was right in
cancelling the bail granted by the sessions court. In this case the bail
was cancelled because the original granting of bail itself was wrong in
the circumstances of the case.
The decision of the Supreme Court in Delhi Admin, v. Sanjay Gandhi^

relates to what is popularly known as "Kissa Kursi Ka" case. In this
case Sanjay Gandhi and others were prosecuted under section 120-B
read with sections 409, 435, 201 of the Penal Code. In pursuance of the
anticipatory bail obtained by the accused, they were released on bail.
As the accused, Sanjay Gandhi, was persistently tampering with the
prosecution witnesses, the state moved the High Court of Delhi for the
cancellation of his bail. That application having been dismissed, the
state appealed to the Supreme Court by special leave. While allowing
the appeal and cancelling the bail for a month, the Supreme Court
explained some aspects of the law relating to cancellation of bail.
According to the Supreme Court, rejection 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 granted in such a case. Cancellation of bail necessarily
involves the review of a decision already made and can by and large be
48
R a t 132-133.
49
1978 Cri. LJ. 952.
permitted 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.
While considering the question as to whether the accused had tampered

with witnesses, the Supreme Court observed :
The fact that prosecution witnesses have turned hostile cannot

by itself justify the inference that the accused has won them
over....[T]he objective fact that witnesses have turned hostile
must be shown to bear a causal connection with the subjective
involvement therein of the respondent (accused). Without such
proof, a bail once granted cannot be cancelled on the off chance
or on the supposition that witnesses have been won over by the
accused.60
The Supreme Court then considered as to what precisely is the nature

of the burden which rests on the prosecution in an application for can
cellation of bail. Is it necessary for the prosecution to prove by a
mathematical certainty or even beyond a reasonable doubt that the
witnesses have turned hostile because they are won over by the accused ?
The Supreme Court answered the question in the negative, and held
that the issue of cancellation of bail can arise only in a criminal case,
but as it is only an incidental matter, it is not required to be proved
beyond reasonable doubt like the guilt of the accused. The court
observed :
The prosecution-.can establish its case in an application for

cancellation of bail by showing on a preponderance of probabili
ties that the accused has attempted to tamper or has tampered
with its witnesses. Proving by the test of balance of probabilities
that the accused has abused his liberty or that there is a
reasonable apprehension that he will interfere with the course
of justice is all that is necessary for the prosecution to do in
order to succeed in an application for cancellation of bail.51
By applying the above test to the facts and circumstances of the case,
the Supreme Court concluded that the respondent had abused his liberty
by attempting to suborn the prosecution witnesses and that the respon
dent's bail ought to be cancelled.
•° Id. at 957.
81
Id. at 958.
The power to cancel bail has to be exercised with care and circums
pection. However, the power has been given to be exercised in appro
priate cases, when it is clear that the accused is interfering with the
course of justice by tampering with witnesses. The court struck a note
of warning when it observed :
Refusal to exercise that wholesome power in such cases...will

reduce it to a dead letter and will suffer the Courts to be silent
spectators to the subversion of the judicial process. We might
as well wind up the Courts and bolt their doors against all than
permit a few to ensure that justice shall not be done.52
In Mohan Singh v. Union Territory, Chandigarh,53 the appellant, who

was charged under the Prevention of Corruption Act, was granted bail
by the sessions judge. But the bail was cancelled by the High Court
mainly for the reason that the appellant had simultaneously moved for
bail in the sessions as well as in the High Court without disclosing to the
former that he had moved for bail in the latter. This made the High
Court feel that the party was not straightforward in his dealings with the
court, and the bail already granted was reversed by it. In appeal to
the Supreme Court it was held that as the appellant had not interfered
with the course of justice and as there was no other well established
ground for refusal of bail the appellant be allowed to continue on bail*
The Supreme Court also observed that refusal of bail should not be
used as an indirect process of punishing an accused person before he is
convicted.
In Bashir v. State of Haryana,6* the three appellants along with eight

others were prosecuted for murder. While eight others were released
on bail, the appellants were refused bail by the sessions court. The High
Court also declined bail to the appellants. But as no challan was filed
by the police within sixty days from the date of the arrest of the appel
lants they were released on bail under the mandatory provision contained
in section 167 (2), Criminal Procedure Code. After the challan was filed,
the sessions court was moved for cancellation of bail on the ground that
the appellants' petitions for grant of bail were rejected on merit both by
the sessions court and the High Court. The court of session cancelled
the bail and when the High Court was moved by the appellants, the
High Court only confirmed the order of cancellation of bail. When the
63
Id. at 960.
63
1978 Cri. L J . 844.
6
* 1978 Cri. L J . 173.
matter came up before the Supreme Court in appeal, the court examined
and analysed the provisions contained in sections 167(2) and section
437, Criminal Procedure Code and held that as under section 167(2) a
person who has been released on bail on the ground that he had been
in custody for a period of over sixty days55 is deemed to be released
under the provisions of chapter XXXIII, his release should be considered as
one under section 437 (1) or (2). The bail in such a case is accordingly to
remain valid till it is cancelled under section 437 (5) or under any other
provision in chapter XXXIII of the Code for cancellation of bail. The
cancellation of bail can only be on the grounds known to law. The
Supreme Court in this context observed :
The fact that before an order was passed under section 167(2) the
bail petitions of the accused were dismissed on merits is not
relevant for the purpose of taking action (of cancellation of bail)
under section 437(5). Neither it is a valid ground that subse
quent to release of the appellants a challan was filed by the
police.56
The Supreme Court, therefore, set aside the order of cancellation of

bail and directed that the appellants be set at liberty.
II POLICE INTERROGATION
Recently, the Supreme Court had to consider the legal basis of the
police practice of interrogating the suspects, and also the constitutional
and legal safeguards provided to the citizens against oppressive and
unjust police interrogations.
In Nandini Sathpathy v. P.L. Danif7 the accused, Nandini Satpathy,

the former Chief Minister of Orissa, was directed to appear at the police
station for being examined in connection with a case registered against
her, her son, and some others, under the Prevention of Corruption Act
and under sections 161/165, 120-B and 109, Indian Penal Code. In that
case the accusation against her was in respect of acquisition of assets
disproportionate to her known lawful sources of income over a long
period of years. The dimensions of the alleged offences had made the
55
Now this period of sixty days has been changed to ninety days in relation to
offences punishable with death, inprisonment for life or imprisonment for a term
of not less than ten years (see s. 13 of the Code of Criminal Procedure (Amendment)
Act, 1978.)
68
Supra note 54 at 176.
57
1978 Cri. L J . 96?.
investigation and the police interrogations quite wide-ranging and

extensive. The accused, Nandini, was interrogated by the police with
reference to a long string of questions given to her in writing. On her
refusal to answer the questions, a complaint was filed in the magistrate's
court alleging that she by her refusal to answer police interrogations had
committed an offence under section 179 of the Indian Penal Code. The
magistrate took cognizance of the offence and issued summons to her to
appear before the court. The accused, thereupon, moved the High
Court challenging the validity of the magisterial proceedings. She con
tended that her refusal to answer police interrogations was justified in
view of the rule against self-incrimination contained in article 20(3) of
the Constitution as also the provision contained in section 161(2) of the
Criminal Procedure Code.58 The High Court of Orissa rejected her con
tention, but certified in accordance with article 132(1) enabling her to
appeal to the Supreme Court. The accused, Nandini, came before the
Supreme Court in appeal raising the same contentions.
At the outset the Supreme Court took note of the fact that the accused,
Nandini, was directed to appear at the police station for interrogation in
flagrant contravention of the wholesome proviso to section 160 (1) of the
Criminal Prodedure Code,59 and made it quite clear that even if the
sessions court might have directed the accused (while granting bail) to
appear at the police station, that did not absolve the police from follow
ing the law as contained in the proviso to section 160 (1). The Supreme
Court strongly felt that such deviance on the part of the police must
be visited with prompt punishment "since policemen may not be a law
unto themselves expecting others to obey the law".
While considering the main issues involved in the case, the Supreme
Court aimed at "principled pragmaticism" and not "cloud cuckoo land
idealism".
The court noted the main thrust of section 161 of the Criminal Proce
dure Code and section 179 of the Indian Penal Code. Section 161, Crimi
nal Procedure Code obligates "any person supposed to be acquainted with
the facts and circumtances of the case" to answer truthfully "all questions
relating to such case...other than questions the answers to which would
have a tendency to expose him to a criminal charge". Section 179,
58
See art. 20(3) and s. 161, Cr. P.C,
69
The proviso to s. 160(1) states—Provided that no male person under the age of
fifteen years or woman shall be required to attend at any place other than the place
in which such male person or woman residest
Indian Penal Code makes it punishable to refuse to answer a public

servant authorised to question. In view of the rule against self-incrimi
nation contained in article 20(3) of the Constitution and the built-in
protection given by section 161, Criminal Procedure Code, the Supreme
Court attempted to spell out precisely the defences open under section
179, Indian Penal Code read with section 161, Criminal Procedure Code.
According to the court, the area covered by article 20(3) and

section 161(2) is substantially the same. The expression "any person
supposed to be acquainted with the facts and circumstances of the case"
includes an accused person who fills that role because the police suppose
him to have committed the crime and must, therefore, be familiar with
the facts. The court, therefore, held that the accused-appellant squarely
fell within the interrogational ring. "To hold otherwise is to fold up
investigative exercise, since questioning suspect is desirable for detection
of crime and even protection of the accused."00
The court then considered the meaning of the expression "accused of

an offence" in article 20 (3) of the Constitution. No doubt, it includes
a person who is formally brought into the police diary as an accused
person; but does it also include a suspect, not yet formally charged, but
is embryonically accused on record ? The court felt that the issue had
been already concluded in the earlier decision of the Supreme Court in
State of Bombay v. Kathi Kalu Oghad61 and that it was not directly con
cerned in the present case with this facet of article 20(3). The court,
however, indicated its inclination to include such a suspect in the expres
sion "accused of an offence" in article 20(3). The court adverted to
several of its earlier decisions62 taking a restrictive view of the expression
"accused of an offence" and observed :
It is plausible to argue that where realism prevails over

formalism and probability over possibility, the enquiries
under criminal statutes with quasi-criminal investigations
are of an accusatory nature and are sure to end in prosecution,
if the offence is grave and the evidence gathered good. And to
deny the protection of a constitutional shield designed to defend
a suspect because the enquiry is preliminary and may possibly not
60
61
A.LR. 1961 S.C. 1808.
62
See Raja Narayanlal Bansiial v; Manek Phiroz Mistry, A.LR. 1961 S.C. 29 ; State of
Bombay v. Kathi Kalu Oghad, A.LR. 1961 S.C. 1803 ; Ramesh Chandra Mehta v.
State of W.B., A.LR. 1970 S.C. 940 ; Bhagwandas Goenka v. Union of India, Criminal
Appeals 131 & 132 of 1961 dt. Sept. 20, 1963
208 Annual Survey of Indian Law ' [1978
reach the court is to erode the substance while paying hollow

homage to the holy verbalism of the article. We are not dire
ctly concerned with this facet of Art. 20(3) ; nor are we free to
go against the settled view of this Court. There it is.63
Further, the court, after referring to its earlier decision in M.P. Sharma
v. Satish Chandra, District Magistrate, Delhi6* held that the ban in article
20(3) operates not only when the evidence previously procured from the
accused is sought to be introduced into the case at the trial by the court,
but also extends to every testimony obtained previously from the accused.
The court then considered what is an incriminatory statement in relat

ion to article 20 (3) of the Constitution or section 161 (2) of the Criminal
Procedure Code. The court observed :
Not all relevant answers are criminatory; not all criminatory

answers are confessions. Tendency to expose to a criminal
charge is wider than actual exposure to such charge,...The orbit of
relevancy is large. Every fact which has a nexus to any part of
a case is relevant but such nexus with the case does not make
it noxious to the accused. Relevance may co-exist with innocence
and constitutional censure is attracted only when inference of
nocence exists. And an incriminatory inference is not enough
for a confession. Only if, without more, the answer establishes
guilt, does it amount to a confession.65
The apprehension of incrimination from the answer sought must be

substantial and real as distinguished from danger of remote possibilities
or fanciful flow of inference. The real test is—could the witness (accused)
have reasonably sensed the peril of prosecution from his answer in the
conspectus of circumstances ?
According to the court the ban of self-incrimination contemplated by

article 20(3) or by section 161(2), Criminal Procedure Code is not
confined to a particular offence regarding which the questioning is made,
but extends in respect of other offences about which the accused has
reasonable apprehension of implication from his answer.
The court explained 'compelled testimony' as evidence procured not

63
84
A.LR. 1954 S.C. 300.
?6 Supra note 57 at 986,
merely by physical threats or violence, but by psychic torture, atmos

pheric pressure, environmental coercion, tiring interrogative prolixity,
overbearing and intimidatory methods and the like—not legal penalty for
violation. However, the manner of mentioning legal penalty to the victim
of interrogation may introduce "an element of tension and tone of com
mand perilously hovering near compulsion."
The court then laid down certain guidelines for the due observance of
the principles discussed above. These are :
(/) The police should permit the advocate, if there be one, to be

present at the time the accused is examined.
(ii) The police should invariably warn—and record the fact—about the
right to silence against self-incrimination ; and where the accused is
literate take his written acknowledgement.
(///) After an examination of the accused, where a lawyer of his choice

is not available, the police official must take him to a magistrate, doctor
or other willing and responsible non-partisan official or non-official and
allow a secluded audience where he may unburden himself beyond the
view of the police and tell whether he has suffered duress which should
be followed by judicial or some other custody for him where the police
cannot reach him. The collocutor may briefly record the relevant
conversation and communicate it—not to the police—but the nearest
magistrate.
The Supreme Court quashed the proceedings before the magistrate and
directed as follows :
The appellant shall undertake to answer all questions put to her

which do not materially incriminate her in the pending or immi
nent investigations or prosecutions. If she claims immunity regar
ding any questions she will, without disclosing the details, briefly
state in which case or offence in the offing makes her reasonably
apprehend self-incrimination by her refused answers. If, after
the whole examination is over, the officer concerned reasonably
regards any refusal to answer to be a wilful violation under
pretence of immunity from self-incrimination, he will be free to
prosecute the alleged offender after studying the refusal to answer
in the light of the principles we have set out, 66
flG
id- at 994,
210 Annual Survey of Indian Law [191 8
The court further directed that the police officer shall not summon
the accused, Nandini, to the police station, but examine her in terms of
the proviso to section 160 (1) of the Criminal Procedure Code.
The decision in Nandini Satpathy's case has indeed made the law relating
to police interrogation more sophisticated and refined. The judgment
clearly and boldly shows the concern of the Supreme Court for the
unfortunate victims of oppression and injustice at the hands of the police.
However, it is doubtful whether the decision would be able to make
the police interrogational practices conform to law and legal principles.
The guidelines given by the Supreme Court are not likely to be followed
by the police even outwardly, leave alone the question of following
them in the right spirit. Whetever remedies the law may provide, the
person held by the police incommunicado and more or less completely
at their mercy, is in practice without any remedy. In our system the
police are mainly interested in obtaining information from the suspect
by any means to enable them to get leads for the investigation. When
they are not making use (as in law they cannot) of the statement or con
fession as evidence in court, the fact how they obtained the statement
or information remains a non-issue, and does not come before the court
for scrutiny. Therefore, can we not think of a system where police will
have full power to interrogate without having the custody of the
interrogatee ?
Ill LEGAL AID
In Madhav v. State of Maharashtra,67 the petitioner, a reader in the

Saurashtra University claimed to be a Ph.D. of Karnataka University by
using forged degree certificates. He was duly prosecuted and convicted
under sections 417//511, 467, 471/467 of the Indian Penal Code. His
appeal to the Bombay High Court was dismissed and his original sentence
was enhanced to three years' r.i. Four years after the decision of the High
Court, the petitioner, alleging that he could not get the certified copy of
the High Court's judgment earlier, approached the Supreme Court for
getting special leave to appeal against the decision of the High Court. For
the hearing of the special leave petition, though the Supreme Court
assigned a lawyer to render free legal service to the petitioner and to argue
the case on his behalf, the petitioner decided to dispense with legal assi
stance and argued on his own. He presented his case capably and with
analytical precision. The court, however, rejected the request for special
leave in view of the concurrent findings of facts of the two lower courts.
67
1978 Cri. L.J. 1678,
The Supreme Court, however, felt inclined to clarify, inter alia, the larger
question of those who silently suffer deprivation of liberty caused by
unreasonableness, arbitrariness and unfair procedures behind the 'stone
walls' and 'iron bars' of the prison.
The Supreme Court considered in detail article 21 of the Constitution

which forbids the deprivation of personal liberty except according to the
procedure established by law. It discussed the landmark decision in
Maneka GandhVs case68 and summed up the legal position by holding
that "procedure" in article 21 means fair, not formal procedure and that
"law" is reasonable law, not any enacted piece. According to the court,
one component of fair procedure is natural justice which, subject to just
exceptions, includes at least a single right of appeal on facts, where
criminal conviction is fraught with long loss of liberty. Therefore, every
step that makes the right of appeal fruitful is obligatory and every action
or inaction which stultifies it is unfair and, ergo, unconstitutional.
The other ingredient of fair procedure to a prisoner, who has to seek

his liberation through the court process, is lawyer's services. In order to
substantiate this proposition the court referred fo the relevant Anglo-
American literature, the Universal Declaration qf Human Rights, the
directive principle contained in article 39-A of the Constitution, and held
that a prisoner, deprived of his freedom by court sentence, but entitled
to appeal against such verdict, can claim, as part of his protection under
article 21 and as implied in his statutory right to appeal, the necessary
concomitant of right to counsel to prepare and argue his appeal. The
Supreme Court upheld the right to counsel, not in the permissive sense
of article 22(1) and its wider amplitude, but in the peremptory sense of
article 21 confined to prison situations. While dismissing the special
leave petition, the court declared the legal position in the following terms :
1. Courts shall forthwith furnish a free transcript of the judg

ment when sentencing a person to prison term;
2. In the event of any such copy being sent to the jail authori
ties for delivery to the prisoner, by the appellate, revisional or
other court, the official concerned shall, with quick dispatch, get
it delivered to the sentencee and obtain written acknowledgement
thereof from him.
3. Where the prisoner seeks to file an appeal or revision, every
"A.I.R. 1978 S.C. 597.

facility for exercise of that right shall be made available by the

Jail Administration.
4. Where the prisoner is disabled from engaging a lawyer, on

reasonable grounds such as indigence or incommunicado situa
tion, the Court shall, if the circumstances of the case, the gravity
of the sentence, and the ends of justice so require, assign com
petent counsel for the prisoner's defence, provided the party does
not object to that lawyer.
5. The State which prosecuted the prisoner and set in motion

the process which deprived him of his liberty shall pay to assig
ned counsel such sum as the court may equitably fix.
6. These benign prescriptions operate by force of Art. 21 (streng

thened by Art. 19 (1) (d) read with sub-art. (5) from the lowest
to the highest court where deprivation of life and personal
liberty is in substantial peril.69
The legal position as declared above by the Supreme Court has indeed
great persuasive value. But can it be considered as a binding precedent
or will it just be considered as obiter only ?
In Nandini Satpathy v. P.L. Dani,70 the Supreme Court while dealing with
the question of custodial and non-custodial interrogation of the suspect
by the police, laid down certain guidelines to be followed by the police
while exercising their powers of interrogation under section 161 of
the Criminal Procedure Code. The court suggested that it would be desira
ble to permit the advocate of the accused to remain present at the time
of the interrogation of the accused person. While considering this
matter, the court referred to article 22(1) of the Constitution which gives
the arrested person a right to be defended by a counsel of his choice.
The court then observed :
The right to consult an advocate of his choice shall not be

denied to any person who is arrested. This does not mean that
persons who are not under arrest or custody can be denied that
right. The spirit and sense of Art. 22(1) is that it is fundamen
tal to the rule of law that the services of a lawyer shall be
available for consultation to any accused person under circumst-
ed
Supra note 67 at 1687,
?
0 Supra note 5?.
Vol. XIV] Criminal Law and Procedure 2l 3
ances of near-custodial interrogation. Moreover, the obser

vance of the right against self-incrimination is best promoted by
conceding to the accused the right to consult a legal practitioner
of his choice.71
These observations indicate that the Supreme Court has, in a way, ex
panded the scope of the right to have a counsel. According to the view
taken by the Supreme Court (which goes far beyond the range of article
22(1) of the Constitution) every accused person under circumstances of
near-custodial interrogation shall also have the right to be defended by
a counsel of his choice.
In Harishankar Rastogi v. Girdhari Sharma,72 as the petitioner had

represented that he could not engage a counsel, the Supreme Court
requested an advocate to act as amicus curiae. However, that advocate
was discharged from the brief at his request. Then the petitioner appear
ed in person and sought permission to be represented by another person,
who is not an advocate.
The Supreme Court considered the relevant provisions of the Advocates

Act, 1961, the definition of 'pleader' given in section 2 (q) of the
Criminal Procedure Code, heard the representative of the Supreme Court
Bar Association, and while granting the permission as asked for by the
petitioner, observed :
A comprehensive programme of free legal services is in a sense a

serious obligation of the State if the rule of law were to receive
vitality in its observance. Until then parties may appear through
advocates, and where they are not represented by one such,
through some chosen friend.73
Then the court further observed :
[A] private person, who is not an advocate, has no right to barge

into Court and claim to argue for a party. He must get prior
permission of the Court, for which the motion must come from
the party himself. It is open to the Court to grant or withhold
permission in its discretion. In fact the Court may, even after
grant of permission, withdraw it half-way through if the repre
sentative proves himself reprehensible. The antecedents, the
71
Id. at 990.
72
1978 Cri. L.J. 778.
78
Ibid.
relationship, the reasons for requisitioning the services of the

private person and a variety of other circumstances must be
gathered before grant or refusal of permission.71
IV COMPENSATION
In Sarwan Singh v. State of Punjab75 the five appellants were convicted

and sentenced under sections 302/149 of the Indian Penal Code. The
Supreme Court granted them special leave to appeal limited to the question
whether the offence committed by the appellants was one under section
302 or under section 304 of the Indian Penal Code. Pending appeal, two
of the appellants died and, therefore, their appeals abated. Considering
the facts and circumstances of the case the Supreme Court set aside the
conviction under sections 302/149 Indian Penal Code, but held the
three appellants guilty of an offence under section 304, part I read
with section 149, Indian Penal Code, and sentenced them to five years'
r.i. and a fine of Rs. 3,500 each. The court further directed that the fine
would be paid as compensation to the widow of the deceased and that
in default thereof, the accused would undergo further simple imprison
ment for 6 months.
While giving the direction regarding the payment of compensation, the

Supreme Court took note of the fact that the death was caused by the de
ceased's brothers in a quarrel regarding water rights and that the accused
had sufficient funds to compensate, at least to some extent, the loss that
had been suffered by the dependants of the deceased.
The Supreme Court considered the genesis and history of the provision
regarding the grant of compensation as contained in section 357 of the
Code of Criminal Procedure, 1973. The object of section 357(3) is that,
in suitable cases the heirs and dependants should be compensated for the
loss that resulted to them from the death, from a person who was res
ponsible for it. Regarding the award of compensation, the Supreme Court
observed*.
In awarding compensation it is necessary for the court to decide

whether the case is a fit one in which compensation has to be
awarded. If it is found that compensation should be paid, then
the capacity of the accused to pay compensation has to be deter
mined. In directing compensation, the object is to collect the fine
74
Id. at 779.
75
1978 Cri. L J . 1598.
Vol. XIV] Criminal Law and Procedure 2l5
and pay it to the person who has suffered the loss. The purpose
will not be served if the accused is notable to pay the fine or
compensation for, imposing a default sentence for non-payment
of fwie would not achieve the object. If the accused is in a posi
tion to pay the compensation to the injured or his dependants
to which they are entitled to, there could be no reason for the
court not directing such compensation.76
The Supreme Court then referred to its earlier decision in Palaniappa

Gounder v. State of T.NJ7 and held that the court should not first consi
der what compensation ought to be awarded to the heirs of the deceased
and then impose a fine which is higher than the compensation. According
to the Supreme Court, it is the duty of the court to take into account
the nature of the crime, the injury suffered, the justness of the claim for
compensation, the capacity of the accused to pay and other relevant cir
cumstances in fixing the amount of fine or compensation.
V PROBATION
Courts have been given wide discretion in the selection of offenders to

be placed on probation. It has also been emphasised time and again
that judicial discretion must be governed by rule, not by humour; that
it must not be arbitrary, vague and fanciful, but legal and regular. How
ever, unfortunately the courts are not quite consistent in their approach
in granting or not granting probation even though the fact-situations
and other variables are almost similar. In Inderjit v. State of Punjab,78
the accused persons were found carrying 144 bottles of liquor in a car.
They were duly convicted and sentenced under section 61 (1) (a) of the
Punjab Excise Act, 1914. Their appeal to the court of session was
dismissed. In their revision petition it was contended before the High
Court of Punjab and Haryana that the accused should have been given
the benefit of the Probation of Offenders Act. While rejecting the con
tention, the High Court observed :
Probation of Offenders Act is meant for the offenders in whose

case there is likelihood of some reformation, but these petition
ers seemed to be dealing on a large sc ale in this anti-revenue
and illegal activity....79
7
« Id. at 1602.
77
1977 Cri. L J . 992.
78
1978 Cri. L J. 1327.
79
Id. at 1328.
2i6 Annual Survey of Indian Law [1978
The High Court, therefore, thought that it was not a fit case to release
the offenders under the Probation of Offenders Act. The view taken
by the Punjab and Haryana High Court appears to be reasonable and in
tune with the spirit of the decisions of the Supreme Court. The kindly
application of the probation principle is negatived by the imperatives of
social defence and the improbabilities of moral proselytisation.80 A
different note was, however, struck by the Karnataka High Court in
Rahamatulla v. State.91 In this case six persons were found transporting
in two cars 1414 brandy bottles without any valid permit. -They were
prosecuted, convicted and sentenced under section 32 of the Karnataka
Excise Act, 1966. Their appeal to the court of session was dismissed.
In the revision petition, the offenders did not challenge the correctness
and legality of the convictions. It was, however, argued on their behalf
that it was a fit case for applying the provisions of the Probation of
Offenders Act as they having suffered prosecution for over eight years
should not further be made to suffer by undergoing the sentences imposed
on them. The High Court, before considering the question of probation,
took note of the fact that a minimum sentence of three months' r. i.
and a fine of not less than Rs. 100 has been prescribed by the Karnataka
Excise Act for any offence under section 32 of the Act. The High
Court, however, relied on the Supreme Court decision in Isher Das v.
State of Punjab82 and came to the conclusion that the court could still
resort to the provisions of the Probation of Offenders Act if the condi
tions required for the application of those provisions existed. Having
regard to the facts that the offence in question took place as long back as
10. 11. 1969, and that there was nothing to show that the offenders were
men of bad character and were indulging in similar or such activities
prior thereto, the High Court thought it appropriate to release the
, offenders on probation under section 4 of the Probation of Offenders
Act, 1958. It may be noticed here that both the Punjab and Karnataka
cases were decided by the trial courts prior to the coming into force of
the Code of Criminal Procedure, 1973, and it could not be the case that
the Karnataka High Court was inclined to pass the probation order in
view of the direction given by section 361 of the Code of Criminal Pro
cedure, 1973.83 The facts of the two excise cases are almost similar,
and yet the approaches of the two High Courts on the question of
granting probation appear to be quite disparate. Considering the facts
80
See P.K. Tejaniv. M. R. Dange, 1978 Cri. L J . 313 at 322 ; See also Mathai John v.
State of Kerala, 1978 Cri. L J . 742 (Ker.).
81
1978 Cri. L.J. 109.
82
1972 Cri. L J . 874.
83
See s. 361 of Cr. P.C.
as gathered from the reported decisions, one would feel that the Karana-
taka High Court was rather too lenient in granting probation.
In Lucknow Municipality v. P. Gurnani,u the two accused were convicted

under section 7(1), read with section 16 of the Prevention of Food
Adulteration Act, 1954, and were sentenced to imprisonment till the
rising of the court and to pay a fine of Rs. 125 by each. In the revision
petition filed by the municipality for the enhancement of the sentence,
it was contended that the sentence passed by the trial court was less than
the minimum punishment prescribed by the Act. The High Court
accepted the contention and enhanced the sentence to one of six months'
r. i. and a fine of Rs. 1,000 each. The respondents took the plea that as
one of them was below twenty one years of age at the time of the
commission of the offence, and as there were certain mitigating circum
stances in case of the other accused (namely that the offence was commit
ted seven and a half years back, that he was, not the owner of the busi
ness, and that he was not responsible for adulteration though he might
be liable for sale of the adulterated article), both of them should be
released on probation under the Probation of Offenders Act. The High
Court of Allahabad relied on the Supreme Court decision in Ramji
Missar v. State of Bihar85 and held that as P. Gurnani was not less than
21 years of age on the date he was found guilty by the trial court, he
could not claim the benefit of section 6 of the Probation of Offenders
Act. The High Court relied on the observations of the Supreme Court
in its decision in Jai Narain v. The Municipal Corporation, Delhi.86 There,
it was held that adulteration of 'food' being a menace to public health
and the Prevention of Food Adulteration Act having been enacted with
the aim of eradicating that anti-social evil, the court should not lightly
resort to the provisions of section 4 of the Probation of Offenders Act to off
enders who are 21 years of age and above. The High Court also considered
the Supreme Court decisions in Ram Prakash v. State of Himachal
Pradesh87 P.K. Tejani v. M.R. Dange88 and Prem Ballabh v. The State
(Delhi Administration)89 and held that the mandate of section 16 of the Pre
vention of Food Adulteration Act was clear and explicit and there was no
room left for the discretion of the court to dilute the minimum sentence
provided by the statute. The court while rejecting the plea of the
84
1978 Cri. L J . 53.
85
(1963) 2 Cri. L J . 173.
86
1973 Cri. L J . 49.
87
1973 Cri. L J . 593.
88
Supra note 80.
89
1977 Cri. L J . 12,
218 Annual Survey of Indian Law ("197§
respondents, held that none of them could be given the benefit of the
Probation of Offenders Act.
If a young person under twenty one years of age is found guilty of an

offence punishable with imprisonment (but not with imprisonment for
life), section 6 of the Probation of Offenders Act lays down an injunction
on the court not to impose a sentence of imprisonment upon such offender
unless for reasons to be recorded in writing, the court finds it undesir
able to proceed with him under section 3 or 4. Naturally, the question
of the age of the accused person would be of considerable importance.
However, neither the Probation of Offenders Act nor the Code of
Criminal Procedure makes any provision for the ascertainment and
recording of the age of the accused person.90 Sometimes, the court and
the defence counsel are both oblivious of section 6 of the Probation of Off
enders Act. This might lead to the young offender being sent to a prison—
the very result which section,6 of the Act aims at avoiding. Further, even
if the court, of its own or on being moved by the defence counsel,
realize this mistake later, it has got no chance of rectifying it as the
court cannot review its own judgment—not even for the limited and
laudable purpose of giving effect to section 6 of the Probation of
Offenders Act for saving the young offender from prison. The situation
does not seem to be satisfactory and calls for reform in law. The deci
sion in Chandrakant v. State of Maharashtra,91 to an extent, illustrates
this point. In this case, the three petitioners (accused nos. 2, 4, and 5)
were prosecuted along with others for various offences. They were
convicted by the sessions court under section 325/149 and sentenced to
imprisonment and fine. In appeal to the High Court of Bombay, the
conviction was altered to one under section 325/34 and the sentence
was confirmed. The case records showed that the sessions court, after
coming to the conclusion about the guilt of the accused and before
passing the sentence, did not hear the accused on the question of sen
tence as required by section 235 of the Criminal Procedure Code. Thus,
the accused persons were deprived of an opportunity to bring on
record certain additional circumstances with a view to inducing the
court to grant lighter punishment or probation benefits. The accused
nos. 2, 4 and 5 had given their ages as 24, 19 and 18 respectively, and
the same were noted by the sessions court. The question of age, more
particularly in respect of accused nos. 4 and 5, was of considerable
importance for getting the benefit of the mandatory rule contained in
90
Such provisions have been made in other enactments, eg., s. 32 of the Children Act,
1960, s. 11 of the Reformatory Schools Act, 1897.
81
1978 Cri. L J . 72.
Vol. XlVj Criminal Law and Procedure 219
section 6 of the Probation of Offenders Act for the protection of

offenders below 21 against prison sentences. However, the defence
counsel did not raise this question before the sessions court, nor did the
court attempt to comply with the mandatory requirements of section 6
of the Probation of Offenders Act. Even in appeal this question was
not raised at all and the appeal was finally disposed of without consi
dering the applicability of section 6 of that Act while dealing with the
sentences imposed on accused nos. 4 and 5. After about a month from
the final disposal of the appeal, a petition was filed under section 482 of
the Criminal Procedure Code invoking the inherent powers of the High
Court. In this petition it was contended that as the courts had failed
to comply with the rules of procedure as mentioned above, the judg
ment of the court was without jurisdiction and non-existent and that
the appeal should be reheard and appropriate orders should be passed
under section 482 of the Criminal Procedure Code. The High Court
rejected the contention. It expressed its view as follows :
[TJhere is no inherent power in the High Court to reconsider

its previous judgment in a criminal matter except where the
previous judgment was pronounced without jurisdiction or in
violation of the principles of natural justice, or possibly, in a
case where it was obtained by an abuse of the process of the
court.93
According to the Bombay High Court the only remedy available in a

case like the present one was to approach the higher court, i.e.y the
Supreme Court. With respect, it is humbly submitted that the stand taken
by the High'Court regarding the applicability of section 482 was some
what narrow and unduly restrictive. Section 6 of the Probation of Offenders
Act is mandatory and the court is not absolved from discharging its duty
under the Act on the plea that the provision was not brought to its notice
till the case was disposed of.93 The very object of section 482 is to ensure
that the powers of the High Court are not hamstrung by the procedural
rules so that the High Court could make such orders as may be necessary
"to secure the ends of justice".94
It is true that there might not be adequate material on record (as it

happened in the present case) to show conclusively that the accused was
92
Id. at 78.
93
See in this connection the observations of the Supreme Court in Rattan Lai v. State
of Punjab, (1965) 1 Cri. L.J. 360 at 365.
•* See s. 482.
below twenty one years of age. In addition, the question of age might not
have been raised at all before the court. In such a case, in the absence of
any rule requiring the ascertainment of the age of the accused, it would
not be wrong on the part of the court that it did not proceed to consider
the applicability of section 6 of the Probation of Offenders Abt. If a specific
^provision is made in that Act for the determination of the age of the
accused person it would be useful.
This is not the only case where the provisions of section 6 of that Act
were completely forgotten by everyone concerned in the trial court as well
as the appellate court.95 The court probably could take shelter behind the
plea that the matter was not brought to its notice by the defence counsel.
The defence counsel who has accepted the responsibility of defending the
young accused person cannot have any justification for not raising the
question before the court. Or, can he in his defence take the plea that he
had totally forgotten about section 6 of the Act or that the matter was
not brought to his notice by the accused person ? Let the question re
main unanswered!
Is it incumbent on the court to call for a report from the probation

officer under section 4(2) of the Act before an order releasing the offender
on probation under section 4 (1) of the Act is passed ?96 This question has
not yet been decided finally by the Supreme Court and continues to be
debatable.97 This time, the same question came up before the Bombay High
Court in State of Maharashtra v. B.R. Patil?8 In this case the respondent-
accused was charged under section 307 (or in the alternative under section
326) of the Indian Penal Code. The assistant sessions judge acquitted the
accused of that charge, but convicted him under section 335 of the Indian
Penal Code, and instead of passing any sentence, released him on probation
under section 4 of the Probation of Offenders Act. In the appeal filed by
the state against the order of acquittal, the High Court, allowing it
partially, held that the accused was guilty under section 325 of the Indian
Penal Code. In another appeal by the state against the release of the
respondent-accused on probation, it was contended by the appellant-state
that the order of the trial judge releasing the respondent on probation of
good conduct without calling a report from Ihc probation officer was
as See Rattan Lai v. State of Punjab, supra note 93; Yaduraj Singh v. State of U.P., 1977
Cri. L J . 340 (S.C.) ; Jagdev Singh v. State of Punjab, (1973) 2 Cri. L J . 1614.
M
Sees. 4(1) and s. 4(2).
97
Sec State of Mysore v. Saib Gunda, 1964 Cri. LJ. 460 (Mys.); Public Prosecutor v.
N.S> Murthy, 1973 Cri. LJ. 1238 (A.P.); Gouranga Charan v. State ofOrissa, 1974 Cri.
L J . 955 (Ori.) ; State v. Nagnesh, A.LR. 1970 Goa 49.
M 1978 Cri. L J . 411.
Vol. XIVJ Criminal Law and Procedure 221
illegal. In view of the special circumstances of the case, the High Court
thought that it was not necessary to decide the question, whether the provi
sions of section 4(2) of the Probation of Offenders Act were mandatory
and required the court to call for a report of the probation officer before
passing an order for release of the offender on probaton of good conduct.
The special circumstances considered by the High Court were;
(0 The respondent had by then completed successfully the period of

the bond executed by him and his surety in accordance with the order
passed by the trial court under section 4(1) of the Probation of Offenders
Act.
(ii) The respondent was facing trial right from 1972 and he was in jail
for at least 50 days during the course of investigation and during the pen
dency of the trial.
(Hi) The respondent could be released on probation of good conduct

by the appellate court under section 360 of the Criminal Procedure Code.
This section does not require that there should be a report of the pro
bation officer. Having regard to this provision, the High Court took the
view that it could have made in appeal an order under section 360 of the
Criminal Procedure Code without calling any report from the probation
officer.
Having regard to the circumstances under which the offence was

committed and having regard to the above mentioned circumstances, the
High Court did not consider it expedient to set aside the probation order
passed by the trial judge and to sentence the respondent. After having
decided the case against the appellant-state, the High Court considered it
desirable to make obsevations on the question whether it was incumbent
on the trial court to call for a report from the probation officer under section
4 (2) of the Probation of Offenders Act while considering the expediency
of releasing the offender on probation of good conduct under section 4(1)
of the Act. The High Court considered the provisions of the probation of
Offenders Act in detail, compared the phraseologies of section 4 (2) and
section 6(2), analysed the decisions of the High Courts of Orissa, Mysore,
and Goa on this question, 89 and finally expressed the view that calling
of a report from a probation officer under section 4 (1) of the Probation
of Offenders Act is not a condition precedent for making an order under
section 4 (1) of the Act. At the same time the High Court hastened to
add that it is very essential that such a report should ordinarily be called
89
See the decisions as mentioned in supra note 97.
from a probation officer. The provisions relating to the release of the

offender on probation must be applied with great care and discretion
keeping in view the interests of the offender as well as of the society.
In making such a decision the report of the probation officer would be
of great help. The post of the probation officer is created to assist the
courts in the matter of probation. It is essential that his services should
be utilised for getting relevant important materials for making probation
decisions. Further, the probation order passed under section 4 of the
Act is appealable and .if it is found by the appellate court that such an
order has been passed without adequate material on record, the order is
liable to be set aside ; and in some cases remand orders might be passed.
This would naturally involve waste of time, both of the trial court
as well as the appellate court. The High Court, therefore, felt it neces
sary to emphasise that calling for a report from the probation officer
under section 4 (2) of the Probation of Offenders Act, though not man
datory, is absolutely essential, save in exceptional cases where there is
sufficient material on record justifying the use of discretion conferred by
section 4 of the Probation of Offenders Act.
Section 19 of the Probation of Offenders Act, 1958, provides that

section 562 of the Code of Criminal Procedure, 1898, would cease to
apply to the states or parts thereof in which the Probation of Offenders
Act is brought into force. Accordingly, in many states, including Orissa
and Maharashtra (Bombay), section 562 ceased to apply on the Act
being extended to the states. Thereafter, the Code of Criminal Procedure,
1898, was repealed and replaced by the Code of criminal Procedure, 1973
which came into force on 1-4-1974. Section 360 of the Code of 1973
is almost identical with section 562 of the old Code of 1898. Therefore,
by virture of section 8(1) of the General Clauses Act, 1897,10° the
reference to section 562 in section 19 of the Probation of Offenders Act
will have to be construed as reference to section 360 of the Code of
1973. The plain and simple result would be that section 360 would not
be operative at all in all those states and areas where the Act has been al
ready in existence, and that section shall cease to be operative in all those
areas as soon as the Act is extended to such areas. This is what it should
be. The Act, being more comprehensive and effective for probation,
should get precedence over section 360, and it is only in such areas where
the Act is not available, that section 360 (or the old section 562) should
be allowed to be operative. 101 However, the courts and lawyers have
100
See s. 8(1) of the General Clauses Act, 1897.
101
For detailed discussion, see R.V. Kelkar, 'How to Construe the References to the
£ ode of Criminal Procedure, 1898, after its Repeal ?' (1978) 3 S.C.C. (Jour.) 14,
sometimes overlooked this legal position and proceeded on the basis that
section 360 of the Code of Criminal Procedure is applicable and operative
side by side with the Probation of Offenders Act. This assumption
is, in fact contrary to law and might lead to incongruous results. The
Act has been made applicable to the whole of the State of Orissa, and
naturally section 360 of the Criminal Procedure Code could not be opera
tive in Orissa. However, in Mayadhar v. Statem the High Court of
Orissa, while setting aside the sentence passed by the trial court and
releasing the offender on probation of good conduct, expressed the view
that the trial court was obliged to give reasons as to why it did not
apply section 360 in this case in vie\tf of the requirements of section
361 of the Code of Criminal Procedure, 1973. Similarly, the Probation of
Offenders Act has been extended to State of Maharashtra; even then the
High Court of Bombay proceeded in Sampat v. State of Maharashtra,™*
and in State of Maharashtra v. B.R. PatiiWi as if section 360, Criminal
Procedure Code was still operative and applicable there. It is to be hoped
that courts would take due notice of section 19 of the Probation of
Offenders Act and would construe the same properly in the light of the rule
of construction given in section 8 (1) of the General Clauses Act, 1897.
VI GENERAL EXCEPTIONS TO CRIMINAL

RESPONSIBILITY
De minimis non curat lex
According to section 96 of the Indian Penal Code, no person shall be

held criminally liable for a harm which is so slight that no person of ordi
nary sense and temper would complain of such harm.
It appears that while dealing with socio-economic offences, courts are

strict and are not inclined to excuse the accused by allowing him the
defence of'slight-harm'. The High Courts of Bombay, Karnataka and
Orissa, while dealing with cases under the Prevention of Food Adulteration
Act and the Drugs Price Control Order, have uniformly rejected the plea
of * slight harm'.
In State of Maharashtra v. Taherbhai10'0 the two accused were found

selling hard boiled sugar confectionery in contravention of the rules
102
1978 Cri, L J . 1054. #
103
1978 Cri. L J . 823. -
104
Supra note 98.
*06 1978 Cri. LJ. 82Q
224 Annual Survey of Indian Law [197 8
framed under the Prevention of Food Adulteration Act. On the appli

cation of the accused the trial magistrate granted them the benefit of
section 95 of the Penal Code on the ground that they were only sellers
of confectionery purchasing them from others. The trial magistrate had
passed this order even before taking prosecution evidence. In appeal,
the High Court of Bombay observed:
It must be stated straight away that section 95 shall not be ap

plied and is not applicable to any offence under the Prevention
of Food Adulteration Act. A slight deviation from the standard
fixed under the rule...is not going to cause slight harm as con
templated under section 95 of the I.P.C. 106
The High Court set aside the order of acquittal and remanded the
case to the trial court for trial in accordance with the law.
In Bichintrananda v. State of Orissa,101 the accused appellant was held

guilty under the Prevention of Food Adulteration Act as he had stored
for sale mustard oil of a quality slightly inferior to the purity standard
fixed by the rules. In revision before the High Court it was urged, inter
alia, that the variation from the prescribed purity standard was only
slight and that the appellant should be given the benefit of section 95
of the Indian Penal Code. The plea was rejected and the conviction was
confirmed by the High Court.
In State of Karnataka v. Lobo Medicals,108 the respondent was prose

cuted under the Essential Commodities Act read with the Drugs (Price
Control) Order. He was acquitted by the trial magistrate. In appeal,
one of the pleas taken by the respondent in his defence was that amount
involved was about 60 paise and as such the benefit of section 95, Indian
Penal Code might be given. Rejecting this plea, the High Court observed :
If this was an offence of the classical type, say for example theft
of a few paise. we should have certainly conceded to the submis
sion made by the learned counsel. It is well to remember that
we are dealing...with a socio-economic offence....We are now
concerned with only one bill issued by the firm. Several other
bills might have escaped from detection....Hence this cannot be
considered a trifle offence....109
106
Id. at 821.
107
1978 Cri. L J . 1050.
108
1978 Cri. L J . 1837,
*»» fd. at 1839
Right of private defence
Under the Anglo-American law, a person is not justified in using extreme

force in self-defence unless he has first retreated as far as possible, assu
ming that retreat is consistent with safety. Our law is different so far as the
'retreat' aspect of self-defence is concerned. For us the right of private
defence serves a social purpose, and as observed by the Supreme Court
more than once there is nothing more degrading to the human spirit than
to run away in the face of peril. This was once again reiterated in State
of Orissa v. Ghenu110 while considering the provisions of the Indian Penal
Code with the background of the basic principles of self-defence. In this
case, the respondent was charged under section 302, Indian Penal Code
for murdering his brother, but was acquitted by the trial court. In
appeal, the High Court of Orissa confirmed the order of acquittal as it
held that the respondent had caused the death while exercising the right
of private defence. It appeared to the court that both the deceased and
the respondent were heavily drunk and had a quarrel between them. In
the course of that quarrel, the deceased rushed towards the respondent
with a lathi in order to assault him, and at that time apprehending
danger to his life, the respondent dealt a tangi blow on the head of the
deceased as a consequence of which he later died in the hospital. Under
these circumstances, the main question would be whether the assault
by the deceased had caused to the respondent reasonable apprehension
of death or grievous hurt. Considering the evidence, the High Court held
that there was imminent danger to the person of the respondent and as
such he had the right of private defence of his person. While reaching this
conclusion, the court also took into consideration the fact that the
deceased and the respondent were adivasis and that adivasis were volatile
in nature and their temper and sentiment could not be judged on the
same lines as other persons. One would wish that the High Court of Orissa
had thrown more light on this aspect of the 'reasonable apprehension'
of death or grievous hurt necessary for allowing the right of private
defence.
In Rama v. State,lv the judicial commissioner of Goa, Daman and

Diu was apparently in agreement with the additional sessions judge who
had stated in his judgment that four cardinal conditions must exist before
taking the life of a person is justified on a plea of self-defence. Fiistly,
that the accused must be free from fault in bringing about the encounter ;
secondly, there must be present an impending peril to life or of great
110
1978 Cri. LJ. 262 at 264.
>u 1978 Cri. LJ. 1843.
bodily harm, either real or so apparent as to create honest belief of excee

ding necesssity ; thirdly, there must be no safe or reasonable mode of
escape by retreat; and fourthly, there must have been a necessity for
taking the life.
It is respectfully submitted that the third condition does not represent

the law of our land. This has been already discussed while dealing with
the decision of the Orissa High Court in State of Orissa v. Ghenu.llla
In this case, the deceased and the accused were brothers. The deceased
was stronger and used to harass the accused. On the night of the incident
the deceased beat him severely, threw him on the ground and throttled
him saying that he was going to kill him (the accused). The accused felt
suffocated and believing that the deceased would in fact kill him, caught
hold of a nearby hammer and hit the deceased on the head. This resul
ted in his death. The accused was tried for his murder. The trial court
held that the accused had the right of self-defence, but he exceeded
its limits when he caused the death by a hammer-blow. The court of the
judicial commissioner in appeal acquitted the accused holding him justified
in causing the death in self-defence. It observed :
The appellant, a cultivator, could not be expected, under the

contingencies in which he was placed during the scuffle with
the deceased, to judge the exact intensity that he should give to
the blow of the hammer which he delivered on the deceased.112
Whether the appellant was a cultivator or otherwise should not, it is

submitted, make any difference in the decision under the given circum
stances.
VII SPECIFIC OFFENCES
Homicide
Section 304 of the Indian Penal Code prescribes punishment for culpable
homicide not amounting to murder. Such homicide is made punishable
with imprisonment for life, or imprisonment up to ten years and fine,
if the act by which death is caused is done with the intention of causing
death or with the intention of causing such bodily injury as is likely to
llia
Supra note 110,
113
Id. at 1845,
cause death (part I of section 304); however, such homicide is punishable

with imprisonment up to ten years or fine or both, if the act by which
death is caused is done with the knowledge that it is likely to cause
death, but without any intention as is mentioned in part I above (part II
of section 304).
There appears to be some confusion as regards the practical application

of section 304, part II in combination with section 34 of the Indian Penal
Code. In A. Gopaiah v, State of A.P.,113 the appellants, with the
common intention of beating, beat the deceased with stones on the ribs
and the injuries caused thereby resulted in his death. Considering the
evidence on record, the High Court of Andhra Pradesh held that the
appellants were not guilty of murder under section 302/34. However,
as the appellants beat the deceased with stones on the ribs, they could be
presumed to have known that the injuries caused by them were likely to
cause his death. Hence, the High Court held that the appellants were
guilty under section 304, part II read with section 34, Indian Penal Code.
The High Court adverted to the essential difference between the
common intention postulated by section 34 and the knowledge of likeli
hood of death referred to by section 304, part II. The High Court,
however, relying heavily on the Supreme Court decision in Afrahim
Sheikh v. State of West Bengal11* took the view that the common inten
tion contemplated by section 34 is with regard to the criminal act, /. e.,
the act of beating. If the result of the beating is the death of the victim
and if each of the assailants possesses the knowledge that death is the likely
consequence of the criminal act, /. e., beating, then according to the High
Court, there is no reason why section 34 should not be read with the se
cond part of section 304 to make each liable individually. But, in the
circumstances of the case, the criminal act of beating was done inten
tionally and also with the knowledge of its likelihood of resulting in the
death of the deceased. Then, will not such a case be covered by part I
of section 304 ? If it is so covered, it is respectfully submitted it cannot
also be covered by part II as is obvious from the wording of section 304.
There may be cases under section 34 which are not covered by part I of
section 304 and yet covered by part II of that section and the unassailable
principle laid down by the Supreme Court in Afrahim Sheikh's case may
be applicable in such cases.115 However, the case before the High Court
was not in fact of that type ; it was clearly a case under section 304,
part I read with section 34, Indian Penal Code.
" 3 1978 Cri. L J. 798.

114
(1964) 2 Cri. LJ. 350.
118
For a comment on that case, see Lotika Sarkar and R-V. Kekar, 'Legal Land-
marks, 1964 : Criminal Law', 7 JJ.LJ. 456 at 480-81 (1965).
The High Court convicted the appellants under section 304, part II
read with section 34, Indian Penal Code and sentenced them to five years'
r . i . Instead, the High Court could have (and should have) convicted
the appellants under section 304, part I read with section 34, Indian
Penal Code and still could have sentenced them to the same term of
imprisonment.
In Keshoram v. State of Assam,11* the order of acquittal in favour of

the two accused-appellants was set aside by the High Court of Assam
and the appellants were convicted of murder under section 302/34,
Indian Penal Code and sentenced to imprisonment for life. In appeal,
the Supreme Court considered the entire evidence. It appeared that the
deceased entered the land of the accused and assaulted them with a lathi.
The accused in self-defence assaulted the deceased and caused his death.
As none of the appellants received any injury the Supreme Court held
that the appellants had exceeded the right of private defence and that
they were guilty of an offence under section 304, part II of the Penal
Code. Accordingly, the conviction was altered from one under section
302/34 to that under section 304, part 11/34 and the sentence was reduced
from life imprisonment to five years' rigorous imprisonment. No rea
sons were given as to why the accused could not be held guilty under part
I of section 304/34. It is humbly submitted that under the circums
tances conviction under section 304, part I read with section 34 of the
Indian Penal Code would have been more appropriate.
The Supreme Court decision in Inder Singh v. State (Delhi Admn.)117

is noticeable for two reasons, (/) observations regarding presumption of
innocence; (//') a suggestion made to the government for taking timely
action for removal of the causes of murders that persist in the rural
areas.
It is a basic principle that the guilt of the accused should be proved

beyond reasonable doubt. However, in its practical application the
principle is stretched too far in some cases. In this context the Supreme
Court once again struck a note of caution when it observed ;
One wonders whether in the meticulous hypersensitivity to elimi

nate a rare innocent from being punished, many guilty men
must be callously allowed to escape. Proof beyond reasonable
doubt is a guideline, not a fetish and guilty man cannot get
116
1978 C r i . L J 1089.
*17 1978 Cri. L J . 766,
away with it because truth suffers some infirmity when projected

through human processes. Judicial quest for perfect proof
often accounts for police presentation of fool-proof concoction.
Why fake up ? Because the court asks for manufacture to make
truth look like true ? N o , we must be realistic. 118
While considering the case the Supreme Court specifically referred to

the observations of the High Court : 118a
As is well known and borne out by the reported cases the draw
ing of water by turns is an endless cause of dispute.
In this case also the immediate cause of murder could be related to

the dispute regarding the turns of irrigation. The Supreme Court
observed :
If this socio-economic source of irritation, induced by turns of

irrigation, were so frequent, it behoved any aware Government
not to watch and wait for murders to take place and then to
prosecute after lives have been lost but to anticipate and
smoothen the whole process so that avoidable frictions and
tensions do not hot up. Violence often erupts from stress and
distress....The Administration, we hope, will not wait for
drunken brawls and deaths in festivals, fights over turns of water
and deaths in fields and other like collusions, but, like good
Governments should do, produce detente in the villages by
appropriate measures which deepen the finer awareness and '
foster the better fellowship of men. 119
Mischief
In Byomkesh Bhattacharya v. L.N. Datta,lz0 the accused-petitioners were

prosecuted, inter alia, for the offence of mischief under section 430/34 of
the Indian Penal Code by the complainant-opposite party. It was alleged
in the complaint that the accused stopped supply of water to the comp
lainant's flat through operation of a wrench valve key and, thereby, turn
ing the main pipe outside the storage reservoir. It was contended by
the petitioners before the High Court of Calcutta that this would not
118
Id. at 767 ; see also in this context the observations of the Supreme Court in
Shivaji Sahebrao Bobadev. State of Maharashtra, 1973 Cri. L J . 1783 at 1788; and
also in Kali Ram v. State ofU.P., 1974 Cri. L J . 1 at 11.
118(1
Ibid.
119
Ibid.
180
1978 Cri. L J . 848,
^30 Annual Survey of Indian Law [191%
amount to mischief as there was neither any destruction of the property nor
any change in the property or in the situation thereof as to destroy its
value or utility. It was argued that there was no change in the composi
tion and form of the pipe so as to destroy or diminish its value or
utility as a pipe, that did not change its character and its value or
utility as a pipe had not been destroyed or diminished since it could be
used for the self-same purpose for which it was being used at some other
places.
This contention of the petitioners was rejected by the High Court

though the complaint-proceedings pending against them were quashed on
other grounds.
According to the High Court, the expression "change in the property so

as to destroy or diminish its value or utility" appearing in the definition of
mischief as given in section 425, Indian Penal Code does not necessarily
mean a change in character, composition or form. If something is done to
the property contrary to its natural use and serviceableness that destroys
or diminishes its value or utility, it will amount to "mischief". It is not
necessary for the purpose of section 425, the Code that there must be a
material change in the property itself nor does the said section require
that value or utility of the property means its market value or utility.
The stoppage of water supply in the manner in which it was done in this
case was something contrary to the natural use and serviceableness of the
water pipe for the purpose it was being used and obviously such act
diminishes or destroys the value or utility of the same. Therefore, it
would amount to mischief within the meaning of section 425, the Code if
the other ingredients of the section are present.
Criminal breach of trust
The offence of criminal breach of trust can be committed only in res

pect of property which is entrusted to the accused person (or over which
he has dominion). Therefore, in every prosecution for criminal breach of
trust, the question as to whether the accused was in any manner entrusted
with the property assumes vital importance.
In Pushpa Kumar v. State ofSikkim121 the accused was a conductor of

the bus belonging to the Sikkim Nationalised Transport and in such
capacity had collected bus fares and freight charges amounting to more
than Rs. 2,000. However, he did not render any accounts to the transport
121
1978 Cri. LJ. 1379.
Vol. XIV] Criminal Law and Procedure 23i
authorities nor did he deposit any amount with them despite several remin
ders. He was prosecuted for criminal breach of trust under section 409 of
the Indian Penal Code, and on his own confession he was convicted and
sentenced to imprisonment and fine. In appeal, the High Court of Sikkim
held that if the facts alleged or disclosed do not amount to the offence for
which a charge has been framed, a plea of guilty to such a charge is no bar
for an appeal on merits and will not stand in the way of the accused being
acquitted. Therefore, the question as to whether there were sufficient
materials on record to justify the framing of the charge in the present
case was considered by the court with all seriousness. The High Court
relying on the decisions of the Supreme Court in Jaswantrai Manilal v.
State of Bombay 122 and State of Gujarat v. Jaswantlal Nathalal12* took the
view that one of the most important elements of 'entrustment' is that the
property in respect of which criminal breach of trust is alleged to have
been committed must have been made over or transferred or handed over
by the aggrieved person, who continues to be the owner thereof, to the
accused. In this case the court could not find anything on record to sugg
est that the amount was ever 'made over' or 'transferred' or 'handed
over'by anyone on behalf of the Sikkim Nationalised Transport to the
accused. Therefore, the High Court held that the most important element
of entrustment within the meaning of section 405/409 of the Indian
Penal Code was not in existence at all.
It is respectfully submitted that the view taken by the Sikkim High

Court is not quite correct. The decisions of the Supreme Court relied up
on by the High Court are not quite pertinent to the issue before the court.
Moreover, the subsequent decision of the Supreme Court in Som Nath v.
State of Rajasthanlu clearly lays down that a person authorised to collect
money on behalf of another is entrusted with the money when the amounts
are paid to him, and though the person paying may no longer have
any proprietary interest, nonetheless, the person on whose behalf it was
collected becomes the owner as soon as the amount is handed over to the
person authorised to collect on his behalf.126 Relying on Som Nath's case
one can clearly say that the accused conductor in this case was entrusted
with the amounts of fares and freight as soon as he collected the same
on behalf of the Sikkim Nationalised Transport. The contrary view taken
by the High Court of Sikkim does not seem to be correct.
182
1956 Cri. L J. 1116.
188
1968 Cri. LJ. 803.
ia
* 1972 Cri. L J. 897.
» 5 Id. at 900,
Defamation
In L. C. Randhir v. Girdharilal,12* the accused-respondent who was a

dismissed employee of the Indian Bureau of Mines had written a letter
to the controller of the bureau stating certain facts about the financial
position and dealings of the complainant-appellant who was also an
employee subordinate to the controller of the bureau. According to
the complainant-appellant, that letter constituted defamation and was
written by the accused out of malice with a view to harming the chances
of his expected promotion. He, therefore, prosecuted the accused for
defamation; however, the trial magistrate acquitted the accused. Against
this order of acquittal, the complainant-appellant came before the Bombay
High Court in appeal.
According to the High Court the above said letter contained imputa
tions on the character of the appellant suggesting that in all probability
he was collecting wealth by practising corruption. But if these imputa
tions could be proved to have been made in good faith and for public
good they would not amount to defamation as in that case exception
nine to section 499 would be attracted. Obviously, the imputations
could be considered for public good inasmuch as the complainant was
occupying a supervisory position as an administrative officer in a govern
ment concern and it could be always in the interest of the public that
the office is without blemish and not occupied by persons practising
corruption. Therefore, the main question before the High Court was
whether the letter was written in good faith by the accused-respondent.
While considering the question as to what amounts to 'good faith' and
on whom the burden of proving it lies, the High Court relied on the
decision of the Supreme Court in Harbhajansingh v. State of Punjab.127
Where an accused person pleads an exception he must justify his plea,
but the degree and character of proof which he is expected to furnish in
support of his plea, cannot be equated with the degree and character of
proof expected from the prosecution which is required to prove its case.
His plea will be held proved if a preponderance of probabilities (and not
proving beyond reasonable doubt) is established in his favour. In order to
prove that the imputation was made in good faith, it is not enough to
prove that the accused believed it to be true. The belief must have been
inspired on rational basis and if due care and attention is not given by the
accused before making the statement, that would defeat the plea of good
faith. The question of good faith has to be considered on the facts and
126
1978 Cri. L.J. 879.
127
1966 Cri. LJ. 82.
circumstances of each case together with the allegations and the circum
stances in which the imputation was made, the malice, the due care,
attention and satisfaction as appearing in the case where defamation is
alleged. Considering all these aspects, the circumstances in which the letter
was written, non-proof of express malice, material showing that the
accused was careful enough in making enquiries before writing the letter
and applying the test of preponderance of probability, the High Court
reached the conclusion that the accused respondent had acted in good
faith, and accordingly dismissed the appeal.
Refusing to answer public servant authorised to question
Section 161 of the Criminal Procedure Code obligates every person

supposed to be acquainted with the facts and circumstances of the case
to answer truthfully 'all questions relating such to case...other than
questions the answers to which would have a tendency to expose him to
a criminal charge.'
If a person, who is legally bound to state the truth (as in section 161
above) on any subject to any public servant, refuses to answer any ques
tion demanded of him touching that subject by such public servant in the
exercise of the legal powers of such public servant, such a person shall be
punished under section 179 of the Indian Penal Code.
In the context of these two sections, the Supreme Court had to consi
der in Nandini Satpathy v. P. L. Dani,12g two questions : (0 Does mens rea
form a necessary component of section 179, Indian Penal Code and if so,
what is its precise nature ? Can a mere apprehension that any answer has
a guilty potential salvage the accused ? (ii) Where do we demarcate the
boundaries of benefit of doubt in the setting of section 161(2), Criminal
Procedure Code and section 179, Indian Penal Code.
For resolving these questions the Supreme Court considered in detail

the ambit of section 161, Criminal Procedure Code and of article 20(3)
of the Constitution giving constitutional guarantee against forced self-
incrimination. The court observed :
We have no doubt that Section 179 I.P.C. has a component of

mens rea and where there is no wilful refusal but only unwitting
omission or innocent warding off, the offence is not made out.
When there is reasonable doubt indicated by the accused's
128
Supra note 80.
explanation he is entitled to its benefit and cannot be forced to

substantiate his ground lest, by this process, he is constrained to
surrender the very privilege for which he is fighting. What
may apparently be innocent information may really be nocent
or noxious viewed in the wider setting.129
As the expression 'any person' in section 161, Criminal Procedure

Code does include actual accused and suspects, the question of the limits
of police interrogation in such cases becomes important and difficult as
well. In case of persons other than the accused, the application of
section 179, Indian Penal Code in relation to section 161, Criminal
Procedure Code will not be so difficult.
Promoting enmity between classes
In Shiv Kumar Mishra v. State ofU.P.1*0 the accused applicant was pro
secuted under section 153-A, Indian Penal Code for publishing an article
asking people to boycott the elections and extolling Naxalite activities
and, thereby, creating disharmony between the capitalists and the labour
class as also between those who believed in democratic form of govern
ment and those who believed in totalitarian rule. When the case came up
before the High Court of Allahabad in revision, the court adverted to the
relevant portion of section 153-A, namely section 153-A (1) (a) and stated
that a person would be guilty under that provision only when by words,
either spoken or written, he promotes or attempts to promote feelings of
enmity or hatred between different religious, racial or language groups
or castes or communities on grounds of religion, race, language or com
munity. The court, therefore, held that section 153-A was not applicable
to the facts of the case because in the impugned article the applicant had
not said anything to promote feelings of enmity or hatred between diffe
rent religious, racial or language groups or castes or communities on
grounds of religion, race, language, caste or community. The High Court
observed :
Whatever views the applicant has expressed in the article, they

are purely political in nature. One can, however, feel tempted
to say that this article has given a call to the poor masses to
rebel against the capitalist class, but such a call to rebel is not
punishable under s. 153-A I.P.C.131
189
Id. at 990.
180
1978 Cri. L J , 701.
181
Id. at 702,
Vol. XlV] Criminal Law and Procedure 135
VIII PRISON ADMINISTRATION NOT TO USURP

FUNDAMENTAL RIGHTS OF PRISONERS
The decision of the Supreme Court in Sunil Batra v. Delhi Adminis-

tration1^ will be considered as a landmark decision in the coming years.
As was mentioned during the course of the hearing of the case, the Supreme
Court's reformist response to the challenges raised there might go a long
long way in catalysing those humane changes in the prison laws and
practices already high on the national agenda of the government. 133 In
this case, actually, there were two petitioners, Sunil Batra and Charles
Sobraj, who had filed two separate writ petitions challenging the constitu
tional validity of sections 30 and 56 of the Prisons Act, 1894. For the
sake of convenience, the Supreme Court heard both these petitions
together and delivered a common judgment holding the two sections
constitutionally valid but interpreting them rather restrictively so as to
make their meaning conform to articles 14, 19, 20 and 21 of the Constitu
tion. All the five judges who heard the case concurred on the jurisdiction
al and jurisprudential basics and in the final decision in the case. How
ever, while Desai J., on his own behalf and on behalf of Chandrachud C.J.,
Fazal Ali and Singhal JJ. gave a compact, balanced and well reasoned
opinion, Krishna Iyer J. preferred to give a rather elaborate opinion
discussing in great detail the various aspects of the issues involved with
great gusto. The styles of the two opinions are somewhat different.
The opinion given by Krishna Iyer J. is almost like an illuminating essay
on prison reforms with special reference to solitary confinements of
convicts under sentences of death and the use of bar fetters for the
prisoners. The opinion, as in an essay, gives even the subtitles such as
'the core-questions', 'the Paramount Law, Prison discipline and judicial
oversight', 'some welcome features : Community based litigation and
participative justice, supportive of democratic legality', 'This court's
role as catalyst of prison justice', 'The two problems and our basic
approach', T h e Cooper effect and the Maneka armour vis-a-vis prisons',
'Rights and Realities', 'Access and the law', 'Contemporary danger',
'The Final directions'.
Sunil Batra, a convict under sentence of death, had challenged his

solitary confinement sought to be supported by the provisions of section
30(2) of the Prisons Act, 1894.134 Charles Sobraj, a French national and
then an undertrial prisoner, had challenged the action of the superinten-
138
1978 Cri. L J . 1741.
188
Id. at 1749.
184
See s. 30 of the Prisons Act, 1894.
dent of jail putting him into bar fetters for an unusually long period.
At the outset the Supreme Court made it very clear that though the
lawful incarceration of convicts entails by its own force the deprivation of
fundamental freedoms like the right to move freely throughout the territory
of India, the convicts are not wholly denuded of their fundamental rights.
Conviction for a crime does not reduce the person into a non-person
whose rights are subject to the whim of the prison administration and,
therefore, the imposition of any major punishment within the prison
system is conditional upon the observance of procedural safeguards.
So the court under whose order and direction a convict is in prison,
need not adopt a 'hands off' attitude in regard to the problem of prison
administration.
The Supreme Court then held that section 30(2)135 of the Prisons Act
does not empower the prison authority to impose solitary confinement
(in the sense in which that word is understood in para 510 of the Jail
Manual) upon a prisoner under sentence of death. Sections 73 and 74
of the Indian Penal Code clearly indicate that solitary confinement is by
itself a substantive punishment which can be imposed by a court of law.
It cannot be left to the whim and caprice of prison authorities.
The Supreme Court then referred to sections 45 and 46 of the Prisons

Act, and para 847 of the Punjab Jail Manual, and observed :
Sub-sec. (2) of S. 30 merely provides for confinement of a pri

soner under sentence of death in a cell apart from other priso
ners and he is to be placed by day and night under the charge of
a guard. Such confinement can neither be cellular confinement
nor separate confinement and in any event it cannot be
solitary confinement....Even jail discipline inhibits solitary con
finement as a measure of jail punishment....Upon a true constru
ction, sub-sec. (2) of S. 30 does not empower a prison
authority to impose solitary confinement upon a prisoner under
sentence of death. 136
The Supreme Court then adverted to section 366(1) of the Criminal

Procedure Code according to which the sentence of death imposed by
a sessions judge cannot be executed unless it is confirmed by the High
Court. The court also noted that the prison authorities treat such a
185
For s. 30(2), see supra note 134.
186
convict as being governed by section 30 (2) despite the mandate of the

warrant under which he is detained that the sentence shall not be execu
ted till further orders are received from the court. The Supreme Court
ultimately held that the expression "prisoner under sentence of death"
in the context of section 30(2) can only mean the prisoner whose sen
tence of death has become final, conclusive and indefeasible which cannot
be annulled or made void by any judicial or constitutional procedure.
The Supreme Court then considered the nature of confinement of a

prisoner who has been awarded capital sentence by the sessions judge
from the time of sentence till it becomes automatically executable. The
court observed :
Section 366 (2) of the Cr.P.C. enables the Court to commit the
convicted person who is awarded capital punishment to jail cus
tody under a warrant....He is to be kept in jail custody. But this
custody is something different from custody of a convict suffering
simple or rigorous imprisonment. He is being kept in jail custo
dy for making him available for execution of the sentence as and
when that situation arises. After the sentence becomes executable
he may be kept in a cell apart from other prisoners with a day and
night watch. But even here, unless special circumstances exist,
he must be within the sight and sound of other prisoners and be
able to take food in their company.137
The Supreme Court then considered the case of Charles Sobraj who
was put in bar fetters and whose fetters were retained for 24 hours a day
during the period of his detention in Tihar Central Jail. The bar fetters
in his case continued for about 1J years till they were temporarily removed
by the Supreme Court in February, 1978. The petitioner contended
that section 56138 of the Prisons Act so far as it confers unguided, un-
canalised and arbitrary powers on the superintendent to confine a priso
ner in irons is ultra vires articles 14 and 21 of the Constitution. The
Supreme Court considered the relevant provisions of the Punjab Jail
Manual along with sections 59 and 60 of the Prisons Act and on the
basis of the information provided by the Solicitor-General on behalf of
the state regarding the lack of sanction of the state to the instructions of
the inspector general of prisons in this behalf, came to the conclusion that
the provision contained in para 399 of the Jail Manual relating to putting
a prisoner under fetters is not statutory and has not the authority of law.
187
Id. at 1796-97.
*38 See s. 56 of the Prisons Act, 1894.
According to section 56 of the Prisons Act, the superintendent may

put a prisoner in bar fetters, (/) when he considers it necessary ; (i7)
with reference either to the state of prison or character of the prisoner ;
and (Hi) for the safe custody of the prisoner.
As there was no material on record regarding the physical state of the

Tihar Central Jail, the necessity of putting the prisoner in bar fetters
had to be examined in the context of the character of the prisoner and
the safe custody of the prisoner. Further, the superintendent is required
to fully record in his journal and in the prisoner's history ticket the
reasons for putting the prisoner in bar fetters. These reasons, according
to the court, must be recorded in the language intelligible and under
standable by the prisoner so as to make the next safeguard effective, viz.,
revision petition under para 69 to the inspector general of prisons.
Further, para 435 of the Jail Manual requires the superintendent to review
the case periodically for ascertaining whether the fetters can be removed,
consistently with the requirement of safety. Considering all these matters
the Supreme Court held that the discretion given to the superintendent
in this behalf cannot be considered as arbitrary and violative of article
14. Regarding the exercise of the discretion the Supreme Court observed :
The only relevant considerations for putting a prisoner in bar

fetters or for confining him in irons are the character, antece
dents and propensities of the prisoner. The nature or length of
sentence, or the number of convictions, or the gruesome charac
ter of the crime the prisoner is alleged to have committed, are
not by themselves relevant and cannot enter the determination
of the Superintendent except to the extent to which they bear on
the question of the safety and safe custody of the prisoner.139
The court further held that section 56 does not permit the use of bar
fetters for an unusually long period, day and night, and that too when the
prisoner is confined in secure cells from where escape is somewhat in
conceivable.
For all these reasons and in view of the interpretation put by the court
on section 56 of the Prisons Act, the Supreme Court held that the section
is not violative of articles 14 or 21 of the Constitution.
It is to be hoped that this decision of the Supreme Court proves to be
an harbinger to usher in the much needed reforms in jails, jail manuals,
and other jail laws.
189
Supra note 132 at 1801,

009 - 1978 - Criminal Law and Procedure

Transféré par

Informations du document

Titre original

Copyright

Formats disponibles

Partager ce document

Partager ou intégrer le document

Options de partage

Avez-vous trouvé ce document utile ?

Ce contenu est-il inapproprié ?

Droits d'auteur :

Formats disponibles

009 - 1978 - Criminal Law and Procedure

Transféré par

Droits d'auteur :

Formats disponibles

CRIMINAL LAW AND PROCEDURE

DURING 1978 the number of reported decisions of the Supreme

The decision of the Supreme Court in Moti Ram v. State of M.P.1

to rigorous analysis and by a process of close legal reasoning succeeded

Bearing in mind the need for liberal interpretation in areas of

it is not reform in law, but a reform in the understanding of the age-old

The question of criteria for quantifying the amount of bail (where

Regarding the question as to whether the surety can be rejected on

Discretion in granting bail

In case of a bailable offence, bail is a matter of right; and if a person

In case of a non-bailable offence, bail cannot be claimed as a matter

» 1978 Cri. L J. 864.

437 to the magistrates for exercising the discretion in granting bail in

The overriding considerations in granting bail...which are

The Supreme Court, particularly in the context of the case, emphasised

pies. Therefore, though the discretionary power under section 439 is

It is not every sickness or infirmity that entitles a person to be

In Onkar Chand v. State of Punjab* a case was registered against the

The Courts should endeavour to avoid taking of either such a

While it is true that the petitioner cannot be interrogated by the

Long delays in trial and appellate courts, or the protected nature of

by way of caution the court imposed some conditions on the petitioners.

It is quite interesting to note the unusual advice given by the Supreme

It is commendable, if the petitioners choose to report daily

It is of some interest to observe the style of the judgment.14 If one may

A much more interesting aspect of the above said discourse is its

In Babu Mulla v. State of M. P17 the overriding consideration for

If the State cannot provide for adequate machinery for dispen­

In Izhar Ahmad v. State,19 the accused-applicants were not produced

Similarly, in Syeed Ahmad v. State,20 as the detention of the accused

In Superintendent and Remembrancer of Legal Affairs, W. B. v. Mansur

of session and can be exercised quite independently by that court. The

The post-emergency year has witnessed a spate of petitions for antici­

In Gurbaksh Singh v. State of Punjab?* the Full Bench of the Punjab

nection with the grant of anticipatory bail. According to one view,

The High Court considered in detail the legislative history of section

1. That the power under S. 438, Criminal Procedure Code,

2. That neither S. 438, Criminal Procedure Code, nor any

3. That the said power is not unguided or uncanalised but

4. That in addition to the limitations imposed in S. 437 Cri­

5. That where a legitimate case for the remand of the offender

6. That the discretion under S. 438, Criminal Procedure Code,

8. That mere general allegations of mala fides in the petition

It was contended on behalf of the petitioners that anticipatory bail

Now if the charge against the petitioners is untenable, it would

In Bansi Lai v. State of Haryana11 a case was registered under the

Prevention of Corruption Act against Bansi Lai, an erstwhile Chief

This approach can no longer be considered to be correct in view of

In Suresh Vasudeva v. State39 the petitioner approached the Delhi High

charge of an offence under the Foreign Exchange Regulation Act,

The High Court of Delhi considered the legislative history of section

In Mahanthagouda v. State of Karnataka,™ the High Court of Karna­

Haryana in Gurbaksh Singh's case,35 held that where the nature of a

In State of Maharashtra v. Vishwas*1 the High Court of Bombay,

If a person in whose favour an order for anticipatory bail has been

section 438 (3).39 If it becomes necessary, that bail might be cancelled in

In State of Maharashtra v. Vishwas*1 the High Court of Bombay

By its very nature...orders of bail do not possess irreversible

In Janardan v. State of Bihar** the petitioners were being prosecuted

The power to cancel bail in respect of any offence, whether bailable or

The decision of the Supreme Court in Gurcharan Singh v. State (Delhi

According to section 439(2) of the Code of Criminal Procedure, a

Under S. 439(2) of the...Code a High Court may commit a

If the State cannot provide for adequate machinery for dispen

The post-emergency year has witnessed a spate of petitions for antici

4. That in addition to the limitations imposed in S. 437 Cri

In Mahanthagouda v. State of Karnataka,™ the High Court of Karna

The court then considered what is an incriminatory statement in relat

merely by physical threats or violence, but by psychic torture, atmos

1. Courts shall forthwith furnish a free transcript of the judg

6. These benign prescriptions operate by force of Art. 21 (streng

ances of near-custodial interrogation. Moreover, the obser