Holding

The Supreme Court held that the bail order under Section 167(2) remains in force until cancelled under Sections 437(5) or 439(2), the delay does not warrant quashing the case, and it declined to interfere under Article 136, leaving jurisdictional questions to the High Court.

Summary

The petitioners, five accused including Simranjit Singh Mann, were arrested near the Indo‑Nepal border and charged with offences under the Indian Penal Code, while being detained under the National Security Act. They were granted bail under the proviso to Section 167(2) of the Criminal Procedure Code, but could not be released because of their NSA detention, leading to a series of petitions concerning bail, surety discharge, and transfer of the case to a Special Judge. The Supreme Court examined whether the delay in investigation and trial violated the right to a speedy trial under Article 21, the validity of the bail order after the lapse of time, the jurisdiction of the Special Judge created under the Criminal Law Amendment Act, and whether the Supreme Court could assess the sufficiency of evidence for framing charges. It held that the delay did not merit quashing the proceedings, that a bail order under Section 167(2) remains effective until cancelled under Sections 437(5) or 439(2), and that questions of jurisdiction and the link between offences are for the High Court. Consequently, the Court dismissed the petitioners’ special leave and writ petitions and directed the High Court to expedite the trial without exercising its own discretion under Article 136.

Issues considered

The right to a speedy trial under Article 21 and whether the delay infringes it
Whether petitions under Article 32 can challenge the sufficiency of evidence for framing charges
The jurisdiction of a Special Judge under the Criminal Law Amendment Act to try the offences
The effect and continuance of a bail order granted under the proviso to Section 167(2) after the filing of a charge‑sheet or lapse of time
The validity of creating a Special Judge’s court for security and convenience purposes
The sufficiency of evidence for conspiracy and distribution of seditious material

Legislation cited

Code of Criminal Procedure, 1973s. 167(2), s. 309(2), s. 437(5), s. 439(2), s. 441, s. 442, s. 444(2), s. 445
Constitution of Indias. 136, s. 21, s. 32
Criminal Law Amendment Acts. 6
Indian Penal Code, 1860s. 120-B, s. 121-A, s. 123, s. 124-A, s. 153-A, s. 165, s. 165-A, s. 20A, s. 24A, s. 34, s. 505
National Security Act
Prevention of Corruption Acts. 5(iii)

Subjects

speedy trialright to bailspecial judge jurisdictionconspiracyseditious materialCriminal Procedure CodeArticle 21Article 32Article 136National Security ActCriminal Law Amendment Act

Judgment

A

RAGHUBIR SINGH & OTIIERS ETC.
v.
STATE OF BIHAR
B
SEPTEMBER 19, 1986

[O. CHINNAPPA REDDY AND M.M. DU'IT, JJ.)

Constitution of lndia, 1950.
c Arts.' 32. and 136--Petitions against framing of charges by the
Trial Court-Whether maintainable-Supreme Court cannot convert
itself into a trial court to consider sufficiency of evidence justifying
framing of charges.

Article 2/-Right to speedy trial-When violated-Factors to be
taken in consideration-Question ultimately one of fairness in the ad-
ministration of criminal justice.

Criminal Law Amendment Act, s. 6--Creation of Special Judge's
Court-Justification of-Trial entrusted to Special Court in the interest
E of security and convenience of the accused-Whether rule of law violated.

Indian Penal Code, ss. /20A & /24A-Accused need not be a
participant throughout to constitute offence of conspiracy-Distribution

F
and circulation of seditious material-Whether sufficient for constitut-
ing offence.

Criminal Procedure Code, 1973, ss. 167(2), 309(2), 437(5) and
439(2)-0rder for release on bail-No limit within which bail bond
-
may be executed-Order for release on bail effective until an order
under s. 437(5) or 439(2) is made-Order not extinguished either by
discharge of surety/by lapse of time/the filing of chargesheet/remand to
G custody unders. 309(2).

The petitioners-accused were arrested by the Security Police
Patrol Party in the State of Bihar while attempting to cross Indo-Nepal
border. One of them was identified Simranjit Singh Mann-a dismissed
Police Officer who had gone underground after an order of detention
H under the National Security Act was passed against him. As a result of

802
RAGHUBIR SINGH'· STATE OF BIHAR 803

the search, currency notes and a number of documents and other arti- A
cles were seized from the petitioners. It is alleged that one of the accused
also offered a bribe to the police officers. The police registered a first
information report and commenced investigation. A chargesheet was
filed on 11th December, 1985 before judicial Magistrate First Class
against the live accused-petitioners for offences under ss. 121-A, 123, B
124-A, 153A, 165-A, 505 and 120-B of the Indian Penal Code. However,
before the chargesheet was filed, the accused-petitioner; Simranjit
Singh Mann was served with an order of detention under the National
Security Act and sent to Bhagalpur jail. The other four accused were
also detained under the National Security Act at Bhagalpur.

All the petitioners moved the Judicial Magistrate for bail in the c
aforesaid criminal case claiming to be released under proviso (a) of s.
167(2) of the Code of Criminal Procedure. They were granted bail but,
they could not be released because of their detention under the National
Security Act. While so, the surety for all the live accused filed a petition
requesting the Magistrate to discharge him from suretyship as he did
D
not want to continue to be the surety of the accused persons. The Magis-
trate discharged the surety from suretyship and issued formal warrants
of arrest under s. 444(2) of the Code of Criminal Procedure. At this
stage, the High Court of Punjab and Haryana made an order quashing
the detention of Simranjit Singh Mann.
E
The Magistrate took cognizance of the case under ss. 121A, 123,
124A, 153A, 165A and 120B of the Indian Penal Code on December 18,
1985. Thereafter the investigating Officer filed a petition requesting
expeditious trial as the case was one of special importance. All the
petitioners except Simranjit Singh Mann filed fresh" ball bonds. The
said bail bonds were rejected on December 20, 1985 as the surety could
not name either the accused persons or their fathers. The accused F
moved another petition for recalling the order dated December 20, 1985
·and accepting the same person as surety. This petition was rejected on
the ground that the earlier order could not be reviewed. The High
Court also rejected the bail applications of these accused persons.
G
The case was thereafter, transferred to the Special Judge (Vigi-
lance) North Bihar, Patna. The accused Simranjit Singh Mann moved
an application before the Special Judge offering cash security and ask-
. ing for bail but it was rejected on the ground that the High Court had
already rejected the application of the other four accused. The case was
later transferred to the Court of Special Judge, Bhagalpur and was
H
804 SUPREME COURT REPORTS 11986] 3 S.C.R.

A finally adjourned to August 8, 1986 for arguments on the question· of
charges to be framed and on the question of jurisdiction. At this stage,
the Special Public Prosecutor filed a petition stating that the offences
under s. 165 and ss. 165A read with s. 34 were not committed in the
course of the same transaction as the offences under s. 124-A etc., and
therefore it was necessary that the offences under ss. 165 and 165A read
B
withs. 34 should be tried separately from the offences under secs. 124A
etc. The accused also filed a petititon to the same effect. The Special
Judge allowed the aforesaid petition holding that the offences were not
committed in the course of the same transaction and therefore the trial
for the offences under ss. 165 and 165A read with s. 34 should be
separated from the other offences. It was further held that he was not
c competent to try the accused for the offences under secs. 12 IA, 124A
etc. as the case had not been committed to the court of Sessions hy the
Trial Magistrate and directed that in regard to those offences the record
be sent back lo the District and Sessions Judge, Purnea for proceeding
further in accordance with law. ·

D Alleging that the Special Public Prosecutor had never been in-
structed to file such a petition before the Special Judge, the respondent-
State of Bihar filed a writ petition in the High Court and obtained a stay
of further proceedings before the Special Judge.

The accused-petitioners filed special leave petitions and writ peti-
E tions before the Supreme Court against the rejection of their bail appli-
cations and for quashing the proceedings before the Special Judge.

It was contended on behalf of the petitioners (a) that the funda- >
mental right of the petitioners under Art. 21 of the Constitution had
been frustrated hy the tactics of the State whose only object was to
F somehow keep the petitioners in prison; (b) that there was no material
whatever to substantiate the offences of waging war etc. and that the
proceedings deserved to be quashed on that ground also; (c) that the
proceedings before the Special Judge, Purnea were "'.ithout jurisdiction
both for the reason that he was not competent to try the offences under
s. 12 lA and s. 124A etc. and also for the reason that he came to be
G seised of the case at the instance of the Executive Government, who had
no authority to transfer the case from the court of the Special Judge,
Patna to the Court of the Special Judge, Purnea, since the rule of law
would be defeated if the Executive Government were to be permitted to
have cases decided hy Judges of their choice; (d) that the High Court
and the special Judge were wrong in not permitting the accused to offer
H fresh sureties or cash security; (e) that the High Court and the Special
RAGHUBIR SINGH v. STATE OF BIHAR 805
I
Judge were wrong in holding that the order of the Magistrate directing A
them to be released on bail under s. 167(2) had come to an end by the
passage of time, particularly after cognizance had been taken of the
case; (I) that there was no material whatsoever to warrant the framing of
charges for any of the offences mentioned in the-.:harge-sheet other than
sec. 16SA; (g) that in the case of the accused persons other than Simran-
jit Singh Mann, there was nothing whatever to connect them with the B
offences under ss. l21A and 124A. On behalf of the respondent-State it
was argued that the order for release on bail stood extinguished on the
remand of the accused to custody under s. 309(2) of the Code of Crimi-
nal Procedure. .
Dismissing the petitions, c
HELD: 1.1 The delay in the investigation and in the trial of the
case is not so unfair as to warrant quashing the proceedings on the
ground of infringement of the right of the accused·to a speedy trial, a
part of their fundamental right under Art. 21 of the Constitution. Hav-
ing regard to the entirety of the circumstances, the long lapse of time D
since the original order"' for bail was made, the consequent change ~n
circumstances and situation, and the directions that were now given for
the expeditious disposal of the case, there would be 110 justification
lor exercising the court's discretion to interfere under Art. 136 of the
Constitution at this stage. [8 J8G-H; 827A-B]
E
1.2 The High Court is directed to dispose of the criminal revision
petition before it as expeditiously as possible preferably within three or
four weeks. Whatever be its outcome the High Court should also direct
the Special Judge or other Judge who may have to try the case, or the
cases as the case may be, to try the cases expeditiously setting a near
date for the trial and to proceed with the trial from day to day. [820D-E] F

2. The right to a speedy trial is one of the dimensions of the
fundamental right to life and liberty guaranteed by Art. 21 of the Con-
stitution. The question whether this right has been infringed is ulti-
mately a question of fairness in the administration of criminal justice
even as "acting fairly" is of the essence of the principles of natural G
justice. A "fair and reasonable procedure" is what is contemplated by
the expression "procedure established by law" in Art. 21. [81SF-G]

Hussainara Khatoon (1) v. State of Bihar, [1979] 3 SCR 169,
Kadra Pehadiya (1) v. State of Bihar, AIR 1981 SC 939, Kadra
Pehdiya(l/) v. State of Bihar, AIR 1982 SC 1167, State of Maharashtra H
806 SUPREME COURT REPORTS [19861 3 S.C.R.

A v. Champa Lal Punjaji Shah, I198 I I 3 SCC 61 O and M enaka Gandhi's '"""- .._
case followed.

Strunk v. United States, 37 Law Ed. 2nd 56, Barkar v. Wingo,
407 US 514 and Boll v. Director of Public Prosecutions, Jamaica,
I 1985] (II) All ER 585, referred to.
B
3.1 The question whether there was any material whatsoever to
warrant the framing of charges for any of the offences mentioned in the
charge-sheet other than sec. 165A is not a matter to be investigated by
the Supreme Court in a petition under Art. 32 of the Constitution. This
Court cannot convert itself into the court of a Magistrate or a Special
c Judge to consider whether there is evidence or not justifying the fram-
ing of charges. I819A-B]

3.2 The questions relating to the jurisdiction of1he Special Judge y-
to try the accused for the offences under secs. 121, 121A, etc. and the
link between the offences under secs. 165A and 16SA read with sec. 34
D on the one hand and the offences under secs. 121 and 12 IA etc. on the
other are questions which are awaiting the decision of the High Court.
These questions are tell to be decided by the High Court. [819C]

4. There was no evil design in the creation of a Special Judge's
.)-"''
court for Purnea Division at Bhagalpur under the Criminal Law
E Amendment Act and the designation of a Judge to preside over that
court. All that has, in fact happened is that a Special Judge's court was
created for Purnea Division under s. 6 of the Criminal Law Amendment
Act and Shri Bindeshwari Prasad Verma, Additional District Judge
West Champaran, who was under orders of transfer as Additional Dis-
trict Judge Bhagalpur was designated as the Special Judge. The case
.t
F Jogbani P.S. No. 110/84, was mentioned within brackets as that was
apparently the only case awaiting trial in Purnea Division under the >-- 4--

Criminal Law Amendment Act. The Special Judge's court was created
for Purnea Division as it was thought that it would be more convenient
for the accused and also in the interests of security if the case was tried
at Bhagalpur where the accused were imprisoned rather than to have
G the trial of the case at Patna to which place the accused would have to he
taken from Bhagalpur for every hearing. I819 E-G I

5. The authorship of seditious material alone is not the gist of any ~
/·
of the offences. Distribution or circulation of seditious material may
also be sufficient on the facts and circumstances of a case. To act as a
H courier is sometimes enough in a case of conspiracy. It is also not
RAG HUBIR SINGH v. STATE OF BIHAR 807

J. '>- necessary that a person should be a participant in a conspiracy from A
, start to fmish. Conspirators may appear and disappear from stage to
stage in the c0urse of a conspiracy. [820B-C] ·

In the instant case, whether such evidence as may now be avail-
able in the record to justify the framing of charges is a matter for the
13
trial court and not for the Supreme Court. [820C]

6.1 The effect of the proviso to s. 167(2) of the Code of Criminal
Procedure, 1973, is to entitle an accused person to be released on bail if ·
the investigating agency fails to complete the investigation within 60
days. A person released on bail under the proviso to s. 167(2) for the
default of the .investigating agency is statutorily deemed to be released c
under the provisions of Chapter 33 of the Code for the purposes of that
Chapter. That is provided by the proviso to s. 167(2) itself. This means,
first, the provisions relating·to bonds and sureties are attracted. Section
441 provides for the execution of bonds, with or without sureties, by
persons ordered to be released on bail. One o(the provisions relating to
bonds is s. 445 which enables the court to accept the deposit of a sum of D
money in lieu of execution of a bond by the person required to execute it
with or without sureties. If the bond is executed (or the deposit of cash is
accepted), the court admitting an accused person to bail is required by
s. 442(1) to issue an order of release to the officer in charge of the jail in
which such accused person is incarcerated. Sections 441 and 442 are in
the nature of provisions for the execution of orders for the release on E
bail of ac~used persons. [82 ID-G]

6.2 There is no limit of time within which the bond may be ex-
}- .. ecuted after the order for release on bail is made. Very often accused
persons find it difficult to furnish bail soon after the making of an order
for release on bail. This frequently happens because of the poverty of F
the accused persons. It also happens frequently that for various re..Sons
the sureties produced on behalf of accused persons may not be accept-
able to the court and fresh sureties will have to be produced in such an
event. The accused persons are not to be deprived of the benefit of the
order for release on bail in their favour because of their inability to
furnish bail straight away. [82 JG-H; 822A] G

6. 3 Orders for release on bail are effective until an order is made
under s. 437(5) or s. 439(2). These two provisions enable the Magistrate
·: who has released au accused on bail or the court of Session or the High ·
Court to direct the arrest of the person released on bail and to commit
him to custody. The two provisions deal with what is known as cancella- H
808 SUPREME COURT REPORTS [1986] 3 S.C.R.

A lion of bail. Since release on bail under the proviso to s. 167(2) is
deemed to be release on bail under the provisions of Chapter XXXlII,
an order for release under the proviso to s. 167(2) is also subject to the
provisions of s. 437(3) and 439(2) and may be extinguished by an order
under either of these provisions. I82 2A-C I

B 6. 4 The order for release on bail is not extinguished and is not to
be defeated by the discharge of the surety and the inability of the
accused to straight away produce a fresh surety. The accused person
may yet take advantage of the order for release on bail by producing a
fresh, acceptable surety. [822E-F I

c 6.5 Section 309(2) merely enables the court to "remand the ac-
cused if in custody". It does not empower the court to remand the
accused if he is on bail. It does not enable the court to "cancel bail" as it
were. That can only be done under s. 437(5) and s. 439(2). When an y-.
accused person is granted bail, whether under the proviso to s. 167(2)
or under the provisions of Chapter XXXIII the only way the bail may be
D cancelled is to proceed under s. 437(5) ors. 439(2). [822F-H]

7 .1 An order for release on bail made under the proviso to s.
167(2) is not defeated by lapse of time, the filing of the chargesheet or by
remand tQ custody under s. 309(2). The order for release on bail may °r·'
however be cancelled under s. 437(5) or s. 439(2). Generally the
E grounds for cancellation of bail, broadly, are interference or attempt to
interfere with the due course of administration of justice, or evasion or
attempt to evade the course of justice, or abuse of the liberty granted to
him. [826B-C]

7 .2 Where bail has beep granted under the proviso to s. 167(2)
F for the default of the prosecution is not completing the investigation in
sixty days, after the defect is cured by the filing of a chargesheet, the
prosecution may seek to have the bail cancelled on the ground that there
are reasonable grounds to believe that the accused has committed a
non-bailable offence and that it is necessary to arrest him and commit
him to custody. In the last mentioned case, one would expect very
G strong grounds indeed. [8260-E]

In the instant case, the High Court and following the High Court,
the Special Judge have held that the order for release on ·bail came to an
end with the passage of time on the filing of the chargesheet. That is not
a correct view. The order for release on bail was not an order on merits
H but was, what one may call an order-on-default, an order that could be
RAGHUBIRSINGHv. STATEOFBIHAR 809

,.').. . rectified for special reasons after the defect was cured. The order was A
made long ago but for one reason or the other, the accused failed to take
advantage of the order for several months. Probably for that reason,
the prosecuting agency did not move in the matter and seems to have
proceeded on the assumption that the order had lapsed with the tiling of the
chargesheet. Having regard to the entirety of circumstances the Court did
not exercise its discretion under Art. 136oflhe Constitution. [826F-H) B

~ Natabar Parilia v. State of Orissa, AIR 1975 SC 1465, Bashir v.
State of Haryana, [1977] 4 SCC 410 and Talab Hazi Hussain v.,Mond-
kar, AIR 1958 SC 376, referred to.
,,;:'(.
t '
ORIGINAL/CRIMINAL APPELLATE JURISDICTION: c
Writ Petition (Criminal) No. 136 of 1986.

~ '-"( Under Article 32 of the Constitution of India

with
D
Special Leave Petition (Criminal) No. 630 of 1986

From lhe Judgment and Order dated 17 .1.1986 of the ratna High
Court in Cr!. Misc. No. 367 of 1986.
>"f-
and E

- ).
Writ Petition (C1iminal) No. 137of1986

Under Article 32 of the Constitution of India.

with F

~ Special Leave Petition (Criminal) No. 577of1986.

From the Judgment and Order dated 7 .2.'1986 of the Special
Judge (Vigilance) Bihar, Patna in S.C. No. 6of 1986.
G
Ram Jelhmalani, Miss Rani Jethmalani, K.N. Madhusoodhanan
and Ashok Sharma for the Petitioners.
J
A.N. Mulla, D.Goburdhan and Basudeo .Pr'\j'3d for the Res-
pondents.
H
810 SUPREME COURT REPORTS (1986] 3 S.C.R.

A The Judgment of the Court was delivered by

CHINNAPPA REDDY, J. On the intervening night of
November 29/30, 1984, the Security Police Petrol on duty near Jogbani
Checkpost noticed a jeep speeding towards the Indo-Nepal border.
The jeep was stopped. There were five occupants in the jeep. One of
B them was Simranjit Singh Mann who had been dismissed from the
Indian Police Service. An order of preventive detention under the
National Security Act had been made against him on August 28, 1986.
He was wanted in that connection but had gone 'underground'. On ·
being questioned by the police petrol party, they first refused to disc-
lose their names and identity. This aroused the suspicions of the police
c party. One of the officers was able to identify Simranjit Singh Mann.
The five occupants in the jeep were searched as also their baggage. A
sum of Rs.62,722 was found with one of the occupants, who it is
alleged offered the police party a large amount as bribe if they were y·
allowed to cross the Indo-Nepal Border. As a result of the search, a '
number of documents and other articles were seized. From the person
D of Sirnranjit Singh Mann were seized, a copy of a letter dated June 2,
1984 from Simranjit Singh Mann to the Chief Secretary, Punjab, a
copy of the letter of resignation dated June 18, 1984 of Sirnranjit Singh
Mann, the Passport of Simranjit Singh Mann, two photographs of
Jarnail Singh Bhindrawala, a letter from Sirnranjit Singh Mann to
Birbal Nath, a letter addressed to one Arun Kumar Agarwal asking
E him to help the bearer in all possible ways and Raghubir Singh.
Kamikar Singh was the person who had made the offer of bribe. A
First Information Report was then registered at the Jogbani Police
Station for references under secs. 121-A, 124-A, 123, 153-A, 505 and
120-B of the Indian Penal Code and s. 5(iii) of the Prevention of
Corruption Act. Investigation started. On December 11, 1985 a
F . charge-sheet was submitted before the Judicial Magistrate First Class
Araria against the five accused persons for offences under secs. 121-A,
123. 124-A, 153-A, 165-A, 505 and 120-B oflndian Penal Cod~.

Before the charge-sheet was filed, on December 4, 1984 Simran-
jit Singh Mann was served with the order of detention under the Na-
G tional Security Act and sent to Bhagalpur Jail. The other four accused
were also detained under the National Security Act at Bhagalpur. On
March 1, 1985 the four accused other than Simranjit Singh Mann
moved the Judicial Magistrate First Class Araria for bail in the crimi·
nal case which was then being investigated claiming to be released
under the proviso (a) of s. 167(2) of the Code of Criminal Procedure.
H The learned Magistrate directed their release on bail, but imposed a
RAGHUBlRSINGHv. STATEOFBIHAR [REDDY, J.] 811

-condition that the sureties should be residents of Araria town. The A
')., four accused persons filed a petition requesting the Magistrate to ac-
cept sureties from Pumea or cash. Anonymous letter warning Siinran-
jit Singh Mann of likely attempts to liquidate him and advertising him
to leave the country. Siinranjit Singh Mann refused to sign the seizure
memo. From Kamikar Singh's person, currency notes of the value of
Rs.62,722 were seized. An amount of Rs.25,000, it is said, was offered B
as bribe to the Police Officers. From Jagpal Singh's suitcase was seized
.... a booklet in English entitled 'Sikhs and Foreign Affairs' and a com-
bined road map of India, Pakistan, Bangladesh, Sri Lanka and Nepal.
Among other articles seized were a booklet in English written.by Na-
-y. rinder Singh Bhuller said to contain anti-Government and Sikh
/
separatist propaganda, a notebook containing meterial about the c
world's leading underground organisations said to be in Mann's hand-'
writing, a register in which Mann was said to be writing the history of
Amritsar in which the Indian Army is said to hav,e been described as
~ the enemy, consequent on operation Blue-Star, extremist Sikhs are
said to be described as nationalists and defendars of the motherland and
Mrs. Gandhi, the then Prime Minister is described in a derogatory D
fashion. At the check-post, a photograph of Simranjit Singh Mann was
available and it was varified that the person suspected to be Simranjit
Singh Mann was actually Simranjit Singh Mann. The other persons
gave their names as Kamikar Singh, Charan Singh, Jagpal Singhc The
-~ . petition was rejected. ·Ultimately the four accused were able to get
sureties from Araria, but even so they could not be released as they E
were under detention under the National Security Act. Sirnranjit
Singh Mann was also directed to be released under the proviso to sec.
167(2) on his application on October 28, 1985. The same condition was .
imposed that the sureties should be from ·Araria. He furnished neces-
).. sary sureties on October 29, 1985, but could not be released as he was
under detention under the National Security Act. While so Gauri F
' Shankar Jha who was a surety for all the five accused filed a petition
.---"... and personally appeared in court praying that he may be discharged
from suretyship as he did not want to continue to be a snrety of the
accused persons. On December 5, 1985 the learned Magistrate made
an order discharging the surety and issuing formal warrants of arrest
under s. 444(2) of the Code of Criminal Procedure. It was at that stage G
that the order of detention against Simranjit Singh Mann was quashed
by the High Court of Punjab and Haryana on December 9, 1985. The
,;... charge-sheet in the court of the Judicial Magistrate First Class Araria
was filed on December 14, 1985.

The learned Magistrate took cognizance of the case under sec- H
812 SUPREME COURT REPORTS [1986] 3 S.C.R.

A tions 121A, 123, 124A, 153A, 165A and 120-B Indian Penal Code on
December 18, 1985. On the same day lie also made an order that
Simranjit Singh Mann should be kept in the Central Jail at Bhagalpur
in the interests of security. On December 19, 1985, the Investigating
Officer filed a petition requesting expeditious trial of the case as it was
one of special importance. On December 20, 1985, fresh bail bonds
B were filed on behalf of the accused Raghubir Singh, Jagpal Singh,
Kamikar Singh and Charan Singh. However the bail bonds were re-
jected as the surety, Kirtyanand Mishra could not name either the
accused persons or their fathers. On January 2, 1986 all the accused
persons were produced from custody before the Magistrate who
further remanded them to custody till January 13, 1986. The learned
c Magistrate took up for hearing a petition which had been previously
filed on behalf of the accused persons requesting that Kirtyanand Mis-
hra may be accepted as a surety as he had once previously been ac-
cepted as surety. It was prayed that the order dated December 20,
1985 might be recalled. The petition was rejected on the ground that
the earlier order could not be reviewed. Later, on the same day, two
D sureties, Mir Majid and Kirtyanand Mishra filed petitions requesting
that they should be diseharged from suretyship as they did not want to
continue as sureties for the accused persons. On January 7, 1986 the
Session Judge, Purnea transferred the case from the file of Shri R.B.
Roy, Joint Magistrate, First Class, Araria to the Court of Shri U.N.
Yadav, Joint Magistrate, First Class, Araria. On January 10, 1986, the
E learned Magistrate made an order fixing January 11, 1986 for the
supply of 'police papers and necessary orders'. On January 11, 1986
the five accused persons were produced before the Magistrate. A peti-
tion was filed on behalf of the State to commit the case to the Court of
session after delivering the police papers to the accused persons and
thereafter to cancel the bail of the accused persons and r.emand them
F to custody. Another petition was filed on behalf of the accused to
transfer the case to the Special Judge, Pumea. The accused persons
also filed a petition to adjourn the case. The Magistrate requested the
accused to receive the documents furnished under s. 207 Criminal
Penal Code but the accused refused to receive the same claiming that
their petition should be disposed of first so that if necessary they may
G go to the higher court in revision. The Public Prosecutor objected to
the petition of the accused on the ground that the accused persons
were merely trying to delay the disposal of the commitment proceed-
rings. The advocate for the accused persons appears to have made a
submission that the case was triable by the Court of Special Judge and
theref9re it should be transferred to him. The learned Magistrate held
H that cognizance had already been taken of the case by his court and the
RAGHUBIRSINGHv.STATEOFBIHAR [REDDY, J.) 813

order taking cognizance could not be recalled. The question whether A
);~ the case should be transferred to the court of Special Judge could be
considered at the stage when the question whether there was a prima
facie case was to be considered. The learned Magistrate then fixed
January 18, 1986 as the date for furnishing copies of documents to the
accused persons.
B
, On January 16, 1986 the learned Magistrate rejected an applica-
~- tion by the accused other than Simran jit Singh for acceptance of cash
deposit or in the alternative sureties from outside Araria town. The
learned Magistrate held that he had no power to review his earlier
order. They then moved to the High Court for Bail but that application
was also rejected. On January 18, 1986, the learned Magistrate c
purported to transfer the record of the case to the Special Judge (Vigi-
lance), North Bihar, Patna and directed the accused to be produced
before the Special Judge on January 31, 1986. On January 31, 1986
Simranjit Singh Mann offered cash security and that the joint trial was
not permissible. The learned Special Judge upheld that submissions
and held that the offences were not committed in the course of the D
same transaction and therefore the trial for the offences under secs:
165A ands. 165A read with s. 34 should be separated from the other
offences. The learned judge further held that he was not competent to
try the accused for the offences under secs. 121A, 124A etc. as the case
had not been committed to the court of Session by the Magistrate of
Araria. In regard to those offences the learned special Judge directed E
the record to be sent back to the District and Sessions Judge, Purnea
for proceeding further in accordance with law.

·Alleging that the Special Public Prosecutor had never been in-
structed to file a petition before the special Judge suggesting that the
offences under secs. 165 and 165A read with s. 34 and the remaining F
offences unders. 121A, 124A etc. were not committed in the course of
..
,(
the same transaction and that they should be trjed separately, the State
of Bihar filed a writ petition in the High Court of Patna and obtained a
stay of further proceedings before t~e Special Judge. The question of
the link between the offences under secs. 165A and 165A read with s.
34 and the offences under secs. 121A, 124A etc. and the question of G
the jurisdiction of the Special Judge to try the offences under secs.
12 lA, 124A etc. were also raised before us but we refrain from expres-
sing any opinion on these questions as theSe questions are to be con-
sidered by the High Court in the Revision Petition before it.

In the two writ petitions filed by the accused persons, Shri Ram H
814 SUPREME COURT REPORTS [1986] 3 S.C.R.

A Jethmalani made a forceful and passionate plea that the fundamental ,.\, -'
right of his clients under Art. 21 of the Constitution has been
frustrated by the tactics of the State of Bihar whose only object was to
somehow keep the petitioners in prison. He submitted that the case of
bribery rested on what took place on the night of 29/30 November,
· 1984 and that investigation into that part of the case was complete in
B
the course of a few days. The offences of waging war etc. rested
primarily on the letters said to have been written by Simranjit Singh
Mann to the President of India and others and investigation into these
offences could not possibly take very long as all that was necessary was
1'11
to examine the recipients of the letters. Yet the chargesheet was filed
only in December, 1985 and even thereafter various tactics were ....,.;
I
c ad?pted by the prosecution to prevent the trial of the case. According
to Shri Jethmalani, the prosecution being fully aware that there was no
merit in the allegations was merely trying to prolong the case as long as
possible to harass the accused and to keep them in prison. He submit-
ted that there was no material whatever to substantiate the offences of y-
waging war etc. and that the proceedings deserved to be quashed on
D that ground also. He argued that if the offences of waging war etc.
rested on the letters written by Simranjit Singh Mann to the President
of India and the Chief Secretary, as indeed they were, then the pro-
secution could have been launched as soon as the letters were
received. There was no need to launch the prosecution now and link it
with the offence of bribery where the letters had been published in the ¥"
E daily press long ago. It was also submitted the proceedings before the
Special Judge, Purnea were without jurisdiction both for the reason
that he was not competent to try the offences under s. 121A, s. 124A
etc. and also for the reason that he came to be seised of the case at the
instance of the Executive Government, who had no authority to trans-
--{'
fer the case from the court of the Special Judge, Patna to the court of
F the Special Judge, Pumea. Shri Jethmalani submitted that the very
principle of rule of law would be defeated if the Executive Govern-
ment were to be permitted to have cases decided by judges of their ~
choice.

In the Special leave petitions, Shri J ethmalani submitted that the
G High Court and the Special Judge were wrong in not permitting the
accused to c;iffer fresh sureties or cash security. He submitted that the
High Court and the Special Judge were wrong in holding that the order
of the Magistrate directing them to be released on bail under s. 167(2)
~
had come to an end by the passage of time, particularly after cogni-
zance had been taken of the case.
H
RAG HUBJR SINGH v. STATE OF BIHAR [REDDY, J.] 815

The constitutional position is now well-settled that the right to a A
speedy trial is one of the dimensions of the fundamental right to life
and liberty guaranteed by Art. 21 of the Constitution: Vide Hussai-
nara KhaUon (I) v. State of Bihar, [1979] 5 SCR 169 (per Bhagwati
and Koshal, JJ), Kadra Pehadiy_a (I) v. State of Bihar, AIR 1981SC939
(per Bhagwati and Sen, JJ.), Kadra Pehdiya (II) v. State of Bihar, AIR
1982 SC 1167 (per Bhagwati and Eradi, JJ) and State of Maharashtra v. B'
Champa Lal Punjaji Shah, [1981] 3 SCR 610 (per Chinnappa Reddy,
Sen and Baharul Islam, JJ). In foreign jurisdictions also, where the
right to a fair trial within a reasonable time is a constitutionally pro-
tected right, the infringement of that right has been held in appro-
priate cases sufficient to quash a conviction or to stop further proceed-
ings: Strunk v. United States, 37 Law Ed. 2d 56 and Barkar v. Wingo, c
407 US 514 two cases decided by the United States Supreme Court and
Bell v. Director of Public Prosecutions. Jamaica, [1985] (JI) All ER
585 a case from Jamaica decided by the Privy Council. Several ques-
tions arise for consideration. Was there delay? How long was the
delay? Was the delay inevitable having regard to the nature of the
case, the sparse availability of legal services and other relevant D
circumstances? Was the delay unreasonable? Was any part of the delay
caused by the wilfulness or the negligence of the prosecuting agency?
Was any part of the delay caused by the tactics of the defence? Was the
delay due to causes beyond the control of the prosecuting and defend-
ing agencies? Did the accused have the ability and the opportunity to
assert his right to a speedy trial? Was there a likelihood of the accused E
being prejudiced in his defence? Irrespective of any likelihood of pre-
judice in the conduct of his defence, was the very length of the delay
sufficiently prejudicial to the accused? Some of these factors have
been identified in Barker v. Wingo (supra). A host of other questions
may arise which we may not be able to readily visualise just now. The
question whether the right to a speedy trial which forms part -of the F
fundamental right to life and liberty guaranteed by Art. 21 has been
infringed is ultimately a question of fairness in the administration of
criminal justice even as 'acting fairly' is of the essence of the principles
of natural justice (In re H.K. 1967(1) All ER 226) and a 'fair and
reasonable procedure' is wffat is contemplated by the expression 'pro-
cedure established by law' in Art. 21(Maneka Gandhi). G
What do we have here? Five persons were seen in a jeep going
towards the Indo-Nepal border, obviously in an attempt to cross the
border. The border patrol thought that their movements were suspici-
ous. Their answers to questions regarding their names and parentage
were not satisfactory. One of them was identified as a police officer, H
816 SUPREME COURT REPORTS [19861 3 S.C.R.

A who had been dismissed from service and who was wanted in connec-
tion with an offer of detention under the National Security Act. In the
light of contemporary history and in the light of the documents lound in
the possession of the accused, (to the contents of one of which we will
presently refer), the police party suspected that they were crossing the
border and going to Nepal in the course of a conspiracy to commit the
B offences of waging war, etc. Their suspicion must have been streng-
thened by the offer of a bribe to be allowed to cross the border. The
police officer whom they apprehended, though apparently a Punjabi,
had previously served in the State of Maharashtra while the others
were from Calcutta. That several persons from different parts of the
country with no apparent connection with each other except that they
c appeared to belong to the same Community were together trying to
cross the country's frontier, apparently.made the police suspect, in the
context of the political situation in the country, that they belonged to
some group of persons of that community who were campaigning
against the Government, call it what you will, agitating or waging war,
a suspicion which must have been further influenced by the letters
D found in their possession. It may be that these circumstances may lead
to no more than suspicion but the suspicion was enough to jus.tify an
investigation by the Police.

We may digress here and consider a submission of Mr. Jethma-
lani that the letter ·addressed to the President showed that Simranjit
E Singh Mann wanted to devote himself to the rehabilitatiion of those
who had suffered during the army action and the letter could never
possibly be evidence of a conspiracy to wage war against the Govern-
ment. It is true that in this long letter, there is a sentence. "In future, I
will devote myself to the rehabilitation of those who have suffered
during the army action." It is sufficient for us to mention that there is
F in the letter enough incendiary material to ignite the combustible. We
do not want to refer to the various other st.atements made in the letter.
It is possible that the effect of some of those statements on the minds
and actions of the susceptible could be disastrous. Simranjit Singh
Mann, as a highly educated person and as a highly placed officer, was
bound to emerge, on his dismissal from service, as a hero and martyr in
G the eyes of a certain section of the people. His statements would be
accepted by them as gospel truths and pronouncements of the oracle
on the basis of which they should act. If the letter remained addressed
to the President and not publicised, it would cause little or no harm.
But the letter though addressed to the president was clearly meant to
be what is called an 'open letter', to be given wide publicjty. Indeed its
H full text had been published in the daily press and the accused them-
RAGHUBIRSJNQHv.STATEOFBIHAR[REDDY, J.] 817

selves had such a copy in their possession when they were stopped and A
searched. We do not know whether any of the accused' was responsi-
ble for the publicity and whether it was in pursuance of the conspiracy.
It may be that Simranjit Singh Mann meant no harm and that the
contents of the letter were no mon; than the vehement outpourings
of a bitter, and distressed but honest mind in the zealot's jargon.
On the other hand it is possible that the letter was designed to become B
or became an instrument 9f faith and used as such. All these are
matters for evidence at the trial.' ·
/ Reverting to what we were saying earlier, if the police officers
had some justification for·-suspecting a conspiracy, they would be well
justified in suspecting ramifications of the conspiracy elsewhere in the
country necessitating investigation into the conspiracy in Punjab, De- c
lhi, Maharashtra, Calcutia and other parts of the country. If the In-
vestigating agency suspected a conspiracy to wage war, it was its
bounden duty to search for evidence wherever it could be found and
not content itself by reading the letters and examining the recipients of
. the letters. It is not again correct to say that the case of waging war is D
founded entirely on the letters addressed to the President of India, etc.
and tjiat all that was necessary for the investigating agency to do was to
examine the recipients of the letters. The letters are only items of
evidence and not the totality of the evidence.
'-~ From the affidavits filed on behalf of the State of Bihar and from
. the records produced before us, we find that the investigating agency E
conducted enquiries not only at Jogbani(Pumea), but also at Delhi,
Calcutta and Bombay and in Punjab, Maharashtra and Nepal. It is one
thing to analyse and arrange the facts and plan an orderly course of
action when all the facts are known, it is quite another thing to do
':L
., when the facts are to be discovered or unearthed, particularly in cases
of suspected conspiracies bristling with all manner of complexities and F
complications including those of a sensitive, political naiure, where the
l. investigating agency has to tread warily and with circumspection. The
investigating agency cannot, therefore, be blamed for the slow prog-
ress that they made in investigating a case of this nature. It is true that
there were wh~t appeared to be lulls in investigation for fairly long
spells but we are unaple to see anything sinister in the lulls. We have to .· G
remember that investigation of this case was not the only task of the
investigating agency. There must have been other cases and tasks. In
our country, the police are not only in charge of the investigation into
crimes, but they are also incharge of Law and Order. We have to take
into account the extraordinary law and order situation obtaining in
various parts of the country necessitating the placing of a great addi- H
818 SUPREME COURT REPORTS [1986] 3 S.C.R.

A tional burden on the police. We are satisfied that such delay as there
was in the investigation of this case was not wanton and that it was the
outcome of the nature of the case and the general situation prevailing
in the country. We may also note in passing that the accused in the
present case do not belong to the category of persons who are not well
able to take care of themselves. They are persons who are capable of
B asserting their rights whenever and wherever necessary and who did in
fact asserts their rights as and when necessary, as is evident from the
number of petitions filed before the Magistrate, and the special judge,
from time to time. We do not suggest that the ability of the accused to
assert their rights should penalise them and still the voice of protest
against the delay. But, as pointed out by Powell, J. in Barkerv. Wingo
c (supra) and by Lord Templeman in Bell v. DPP of Jamaica, (supra)
one of the factors to be considered in determining whether an accused
person has been deprived of his right is the responsibility of the ac-
cused for asserting his rights. It was said:

"Whether, and how, a defendant asserts his right is closely
D related to the other factors we have mentioned. The
strength of his efforts will be affected by the length of the
delay, to some extent by the reason for the delay, and most
particularly by the personal prejudice, which is not always
readily identifiable, that he experiences. The more serious
the deprivation, the more likely a defendant is to
E complain.''

Until the filing of the present writ petitions we find that there was no
serious protest by the accused about any delay. After the charge-sheet
was filed, we notice that at least on two occasions the prosecuting
_{I
agency expressed an anxiety to have the case disposed of as expeditiously
'
F as possible. \\-e find from the order-sheet of the learned Special Judge
that on December 19, 1985 the Public Prosecutor filed a petition be-
fore him requesting expeditious trial of the case as it was a case of a
special importance. From the order-sheet we find that on January 9,
1986, another petition was filed by the Public Prosecutor again re-
questing that an early date may be fixed for the speedy disposal of the
G case. Having regard to all the circumstances of the case, we do not
think that the delay in the investigation and in the trial of the case is so
unfair as to warrant our quashing the proceedings on the ground of
infringement of the right of the accused to a speedy trial, a part of their
fundamental right under Art. 21 of the Constitution. We think that a
direction by us that the trial should start soon and proceed from day to
H day is all that is called for in the present case.
•
RAGHUBIRSINGH v. STA1EOFBIHAR {REDDY. J.] 819

lt was strenuously contended by Shri Jethmafani that there was no A
material whatsoever to warrant the framing of charges for any of the
offences mentioned in the charge-sheet other than sec. 165A. We de-
sire to express no opinion on this question. It is not a matter to be
investigated by us in a petition under Art. 32 of the Constitution. We
wish to emphasise that this Court cannot convert itself into the court of
a Magistrate or a Special Judge to consider.whether there is evidence or B
not justifying the framing of charges.

Two other questions, one relating to the jurisdiction of the Spe-
cial Judge to try the accused for the offences under secs. 121, 121A,
etc. and the other the question of the link between the offences under
secs. 165-A and 165-A read with sec. 34 on the one hand and the c
offences under secs. 121 and 121A etc. on the other are questions
which are awaiting the decision of the High Court of Patna and we
leave those questions to be decided by the High Court. ,

Another question which was raised before us was that the Special
Judge, Purnea was chosen by the Executive Government to try the D
present case. The submission was that it was destructive of the very
principle of Rule of law and Equality before the Law if the Prosecutor
is to be permitted to have the Judge of his choice"to try the case.
Nothmg as drastic as that suggested by Mr. Jethmalani has happened.
All that has in fact happened is that a Special Judge's court was created
for Purnea Division under sec. 6 of the Criminal Law Amendment Act E
and Shri Bindeshwari Prasad Verma, Additional District Judge, West
Champaran, who was under orders of transfer as Additional District
Judge, Bhagalpur was designated as the Special Judge. The case,
Jogbani P.S. No. 110/84, was mentioned within brackets as that was
apparently the only case awaiting trial in Purnea Division under the
Criminal Law Amendment Act. A Special Judge's court was created , F
for Purnea Division as it was thought that it would be more convenient
for the accused and also in the interests of security if the case was tried
at Bhagalpur where the accused were imprisoned rather than to have.
the trial of the case at Patna to which place the accused would have to
be taken from Bhagalpur for every hearing. The accused had to be
imprisoned at Bhagalpur, as already mentioned by us, in the interests G
of security. We are unable to see any evil design in the creation of a
Special Judge's court for Purnea Division at Bhagalpur under the
Criminal Law Amendment Act and the designation of a Judge to
preside over that court.

Shri Jethmalani urged that in the case of the accused persons H
820 SUPREME COURT REPORTS [1986] 3, S.C.R.

A other than Simranjit Singh Mann, there was nothing whatever to con· "4..
nect them with the offences under secs. 12l·A, 124-A, etc. It was said
that they were not even the authors of any of the letters which were
found in the course of the search. We do not want to express any
opinion except to say that authorship of seditious material alone is not
the gist of any of the offences. Distribution or circulation of seditious
B material may also be sufficient on the facts and circumstances of a
case. To act as a courier is sometimes enough in a case of conspiracy. It
is also not necessary that a person should be a participant in a conspi·
racy from start to finish. Conspirators may appear and disappear from
1
stage to stage in the course of a conspiracy. We wish to say no more on
the submission of the learned Counsel. Whether such evidence as may
y
G now be available in the record to justify the framing of charges is a
matter for the trial court and not for us. We refrain from expressing
any opinion.
y-
Having regard to the subsequent events that have taken place,
we think that the only appropriate direction that we can give is to
D request the Patna High Court to dispose of the criminal revision peti·
tion before it as expeditiously as possible preferably within three or
four weeks. Whatever be the outcome of the criminal revision peti·
tion, the High Court should also direct the Special Ju!lge or other
Judge who may have to try the case, or the one or the other of the ~~
cases as the case may be, to try the cases expeditiously, setting a near
E date for the trial of the case or cases and to proceed with the trial from
day to day.

We then come to the two special leave petitions filed by the
/
accused persons. We may recapitulate that the five accused persons . ....{
were directed to be released on bail under the proviso(a) to s. 167(2) !
F for the default of the prosecution in not completing the investigation
within 60 days. It may be remembered that there was no provision ,i
corresponding to the proviso to sec. 167(2) in the old Code of Criminal
Procedure. The proviso was introduced for the first time in the new
Code of 1973. The reason for the introduction of the proviso was
stated in the Statement of Objects and Reasons as follows:
G
"At present s. 167 enables the Magistrate to authorise de~
tention of an accused in custody for a term not exceeding 15
days on the whole. There is a complaint that this provision
is honoured more in the breach than in the observance and
that the police investigation takes a m~ch longer period in
H practice. The practice of doubtful legality has grown
RAGHUBIRSINGHv.STATEOFBIHAR [REDDY, J.I 821

whereby the police file a "preliminary" or incomplete A
chargesheet and move the court for a remand unde~ s. 344
which is not intended to apply to the stage of investigation.
While in some cases, the delay in the investigation may be
due to the fault of the police, it cannot be denied that there
may be genuine cases where it may not be practicable to
B
complete investigation in 15 days. The Commission recom-
mended that the period should be extended to 60 days, but
if this is done, 60 days would become the rule and there is
no guarantee that the illegal practice referred to above
would not continue. It is considered that the most satis-
factory solution to the problem would be to extend the
period of detention beyond 15 days whenever he is satisfied c
that adequate grounds exist for granting such detention."
(s. 344 of the Old Code Corresponded to s. 309 of the
present Code.) ·

The effect of the new proviso is to entitle an accused person to be
D
released on bail if the investigating agency fails to complete the investi-
gation within 60 days. A person released on bail nnder the proviso to s.
167(2) for the default of the investigating agency is statutorily deemed
to be released under the provisions of Chapter 33 of the Cooe for the
purposes of that chapter. That is provided by the proviso to s. 167(2)
itself. This means, first, the provisions relating to bonds and sureties
are attracted. S. 441 provides for the execution of bonds, with or E
without sureties, by persons ordered to be released on· bail. One of the
provisions relating to bonds is s. 445 which enables the court to accept
the deposit of a sum of money in lieu of execution of a bond by the
person required to execute it with or without sureties. If the bond is
executed (or the deposit of cash is accepted), the court admitting an
accused person to bail is required. by s. 442(1) to issue an order of F
release to the officer in charge of the jail in which such accused person
is incarcerated. Sections 441 and 442, to borrow the language of the
Civil Procedure Code, are in the nature of provisions for the execution
ef orders for the release on bail of accused persons. What is of import-
ance is that there is no limit of time within which the bond may be
executed after the order for release on bail is made. Very often ac- G
cused persons find it difficult to furnish bail soon after the making of
an order for release. ori bail. This frequently happens because of the
··~ poverty of the accused persons. It also happens frequently that for
various reasons the sureties produced on behalf of accused persons
may not. be acceptable to the court and fresh sureties will have to be
H
822 SUPREME COURT REPORTS [1986] 3 S.C.R.

A produced in such an event. The accused persons are not to be deprived
of the benefit of the order for release on bail in their favour because of
their inability to furnish bail straight away. Orders for release on bail
are effective until an order is made under s. 437(5) ors. 439(2). These
two provisions enable the Magistrate who has released an accused on
B bail or the court of Session or the High Court to direct the arrest of the
person released on bail and to commit him to custody. The two provi-
sions deal with what is known in ordinary parlance as cancellation of
bail. Since release on bail under the proviso to s. 167(2) is deemed to
b.e release on bail under the provisions of Chapter XXXIII, an order
for release under the proviso to s. 167(2) is also subject to the provi-
sions of s. 437(5) and 439(2) and may be extinguished by an order
c under either of these provisions. It may happen that a ·person who has
been accepted as a surety may later desire not to continue as a surety.
Section 444 enables such a person, at any time, to apply to a Magis-
trate to discharge a bond either wholly or so far as it relates to the
surety. On such an application being made, the Magistrate is required
to issue a warrant of arrest directing the person released on bail to be
D
brought before him. On the appearance of such person or on his volm;i-
tary surrender, the Magistrate shall direct the bond to be discharged
either wholly or so far as it relates to the surety, and shall call upon
such person to find other sufficient surety and if he fails to do so, he
may commit him to jail. (sec. 444). On the discharge of the bond, the
responsibility of the surety ceases and the accused person is put back in
E
the position where he was immediately before the execution of the

-
bond. The order for release on bail is not extinguished and is not to be
defeated by the discharge of the surety and the inability of the accused
to straight away produce a fresh surety. The accused person may yet
take advantage of the order for release on bail by producing a fresh,
acceptable surety. The argument of the learned counsel for the State ~
F I
of Bihar was that the order for release on bail stood extinguished on
the remand of the accused to custody under s. 309(2) of tlie Code of
Criminal Procedure. There is no substance whatever in this submis-
sion. Section 309(2) merely enables the Court to 'remand the accused
if in custody.' It does not empower the Court to remand the accused if
he is on bail. It does not enable the Court to 'cancel bail' as it were.
G That can only be done under s. 437(5) ands. 439(2). When an accused
person is granted bail, whether under the proviso to s. 167(2) or under
the provisions of Chapter XXXIII the only way the bail may be cancel-
led is to proceed under s. 437(5) ors. 439(2).

In Natabar Parida v. State of Orissa, AIR 1975 SC 1465 the Court
H
RAGHUBIRSINGHv.STATEOFBIHAR[REDDY,
, J.] 823

explained the mandatory character of the requirement of the proviso A
to s. 167(2) that an accused person is entitled to be released on bail if
the investigation is not completed within _sixty days. The Court said,

"But then the command of the Legislature in proviso (a) is
that the accused person has got to be released on bail if he B
is prepared to and does furnish bail and cannot be kept in
detention beyond the period of 60 days even if the investi-
gation may still be proceeding. In serious offences of crimi-
nal conspiracy-murders, dacoities, robberies by inter-·
,y state gangs or the like, it may not be possible for the police,
in the circumstances as they do exist in the various parts of
our country, to complete the investigation within the c
period of 60 days. Yet the intention of the Legislature
seems to be to grant no descretion to the court and to make
it obligatory for it to release the accused on bail. Of course,
it has been provided in proviso (a) that the accused re-
leased on bail under s. 167 will be deemed to be so released
D
under the provisions, of Chapter XXXIII and for the .
purposes of that Chapter. That may empower the court
releasing him on bail, if it considers necessary so to do to
direct that such person be arrested and committed to
custody as provided in sub-section (5) of s. 437 occuring in
Chapter XXXIII. It is also clear that after the taking of'the
cognizance the power of remand is to be exercised under s. E
309 of the New Code. But if it is not possible to complete,
the investigation within a period of 60 days then even in
serious and ghastly types of crimes the accused will be en-
titled to be released on bail. Such a law may be a "paradise
for the criminals," but surely it would not be so, as some-
times it is supposed to be because of the courts. It would be F
so under the command of the Legislature."

In Bashir v. State of Haryana, [1977] (4) SCC 410, the question arose
whether a person who has been released under the proviso to s. 167(2)
could later be committed to custody merely because· a challan was
G
subsequently filed. The court held that he could not be so committed
to custody. But, the bail could be cancelled under s. 437(5) if the court
came to the conclusion that there were sufficient grounds, after the
filing of the challan to believe that the accused h.ad committed a non-
bailable offence and that it was necessary to arrest him and commit
him to custody. The court said,
H
•
824 SUPREME COURT REPORTS [1986) 3 S.C.R.

A "Sub-section (2) of Section 167 and proviso (a) thereto
make it clear that no Magistrate shall authorise the reten-
tion of the accused person in custody under this section for
a total period exceeding sixty days. On the expiry of sixty
days the accused person shall be released on bail if he is
prepared to and does furnish bail. So far there is no con-
B
troversy. The question arises as to what is the position of
the person so released when a challan is subsequently filed
by the police."

* * * *

c "Sub-section (5) to section 437 is important. It provides
that any court·which has released a person on bail under
sub-section (1) or sub-section (2), may, if it considers it
necessary so to do, direct that such person be arrested and
commit him to custody. As under Section 167(2) a person
who has been released on the ground that he had been in
D
custody for a period of over sixty days is deemed to be
released under the provisions of Chapter XXXIII, his re-
lease should be considered as one under s. 437(1) or (2).
Section 437(5) empowers the court to direct that the person
so released may be arrested if it considers it necessary to do
so. The power of the court to cancel bail if it considers it
E
necessary is preserved in cases where a person has been
released on bail under s. 437(1) or (2) and these provisions
are applicable to a person who has been released under
Section 167(2). Under Section 437(2) when a person is re-
leased pending inquiry on the ground that there are not
sufficient grounds to believe that he has committed a non-
F
bailable offence may be committed to custody by court
which released him on bail if it is satisfied that there are
sufficient grounds for so doing after inquiry is completed.
As the provisions of Section 437(1), (2) and (5) are applic-
able to a person who has been released under section
167(2) the mere fact that subsequent to his release a challan
G
has been filed, is not sufficient to commit him to custody.
In this case the bail was cancelled a.nd the appellants were

.. ordered to be arrested and committed to custody on the
ground that subsequently a chargesheet had been filed and
that before the appellants were directed to be released un-
H der Section 167(2) their bail petitions were dismissed on
•
RAGHUBIRSINGHv. STATEOFBIHAR [REDDY. J.] 825

merits by the Session Court and the High Court. The fact A
that before an order was passed under Section 167(2) the
bail petitions of the accused were dismissed on merits is not
relevant for the purpose of taking action under Section
437(5). Neither is it a valid ground that subsequent to re-
lease of the appellants a challan was filed by the police. The B
Court before directing the arrest of the accused and coni-
mitting them to custody should consider it necessary to do
so under Section 437(5). This may be done by the Court
coming to the conclusion that after the challan had been
filed there are sufficient grounds that the accused had com-
mitted a non-bailable offence and that-it is necessary that
he. should be arrested and committed to custody. It may c
also order arre~t and committal to custody on other
grounds such as tampering of the evidence or that his being
at large is not in the interests of justice. But it is necessary
that the Court should proceed on the basis that he has been
deemed to have released under Section 437(1) and (2)."
D
In Talab Hazi Hussain v. Mondkar, AIR 1958 SC 376 a case arising
· under the old code, the court considered the grounds on which bail
might'be cancelled. It was said,

"There can be no more important requirement of the ends
E
of justice than the uninterrupted progress of a fair trial; and
it is for the continuance of such a fair trial that the (inhe-
rent) powers of the High Courts are sought to be invoked
by the prosecution in cases where it is alleged that accused
persons, either by suborning or intimidating witnesses, ·are
obstructing the smooth progress.of a fair trial. Similarly, if
F
an accused person who is released on bail jumps bail and
attempts to run to a foreign country to escape the trial, that
again would be a case where the exercise of the (inherent)
power would be justified in order to coinpel the accused tO'
submit to a fair trial and not to escape its consequences by
taking advantage of the fact that he has been released on
G
bail and by absconding to another country. In other words,
if the conduct of the accused person subsequent to his re-
lease on bail puts in jeopardy the progress of a fair trial
itself and if there is no _other remedy which can l\e effec-
tively used against the accused person, in such a case the
(inherent) power of the High Court can be legitimately ' H
826 SUPREME COURT REPORTS [1986] 3 S.C.R.

A invoked.· In regard to non-bailable offences there is no
need to invoke such power because, s. 497(5) specifically
deals with such cases."

The result of our discussion and the case-law in this : An order
B for release on bail made under the proviso to s. 167(2) is not defeated
by lapse of time, the filing of the chargesheet or by remand to custody
under s. 309(2). The order for release on bail may however be cancel-
led under s. 437(5) ors. 439(2). Generally the grounds for cancellation
of bail, broadly, are, interference or attempt to interfere with the due
course of administration of justice, or evasion or ~ttempt to evade the
course of justice, or abuse of the liberty granted to him. The due
c administration of justice may be interfered with by intimidating or
suborning witnesses, by interfering with investigation, by creating or
causing disappearance of evidence etc. The course of justice may be
evaded or attempted to be evaded by leaving the country or going
underground or otherwise placing himself beyond the reach of the
sureties. He may abuse the liberty granted to him by indulging in
D
similar or other unlawful acts. Where bail has been granted under the
proviso to s. 167(2) for the default of the prosecution in not completing
the investigation in sixty days, after the defect is cured by the filing of a
chargesheet, the prosecution may seek to have the bail cancelled on
the ground that there are reasonable grounds to believe that the ac-
~--
cused has committed a non-bailable offence and that it is necessary to
E
arrest him and commit him to custody. In the last mentioned case, one

F
would expect very strong grounds indeed.

In the present case, the High Court and following the High
Court, the Special Judge have held that the order for release on bail
came to an end with the passage of time on the filing of the
chargesheet. That we have explained is not a correct view. The ques-
-
tion now is what is the appropriate order to make? The order for
release on bail was not an order on merits but was what one may call
an order-on-default, an order that could be rectified for special
reasons after the defect was cured. The order was made long ago but
for one reason or the other, the accused failed to take advantage of the
G order for several months. Probably for that reason, the prosecuting
agency did not move in the matter and seems to have proceeded on the
assumption that the order had lapsed with the filing of the charge-
sheet. The question is should we now send the matter down to the
High Court,io give an opportunity to the prosecution to move that
court for cancellation of bail? Having regard to the entirety of the
H
RAGHUBIRSINGHv. STATEOFBIHAR [REDDY, J.I 827

circumstances, the long lapse of time since the original order for bail A
was made, the consequent change in circumstances and situation, and
the directions that we have now given for the expeditious disposal of
the case, we do not think that we will be justified in exercising our
discretion to interfere under Art. 136 of the Constitution in these
matters at this stage. The special leave petitions are, therefore, disi\iis-
,B
sed. Nothing that we have said is to be construed as an expression of
opinion on the merits of the case.·

M.L.A. Petitions dismissed.

<

.