BASHIR AND OTHERS versus STATE OF HARYANA

Citation: [1978] 1 S.C.R. 585 · Decided: 03-10-1977 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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BASHIR AND OTHERS 
v. 
STATE OF HARYANA 
October 3. 1977 
[S. MURTAZA fAZAL ALI AND P. S. KAILASAM, JJ.J 
585 
Criminal Procedure Code 1973-Ss. 167(2), 437(1) and 
(5)-Graat of 
bail-Release of an accused because challan not filed within 60 days fron1 
arrest-Dee1ned bail-If bail can be cancelled as soon as challan is filed. 
The three appellants along \Vith 8 others were prosecuted for offence~ u/s. 
302 read \Vith s. 149 I.P.C. for causing the death of one· Sagru. The f.l.R. was 
lodged on December 2, 1975 and the three appellants and 8 others v.·ere arrtsted 
on the same day. Though the other 8 were released on bail, the bail applica-
Lions of the three appellants were rejected by the Sessions Court because tbey 
were alleged to have caused the injuries. The High Court also declined to grant 
them bail by an order dated February 5, 1976. As no challan was filed by the 
police in the case within 60 days from the date of the arrest of the appellants 
they were released on bail on February 23, .1976 u/s 167(2) 
Cr.P.C. 
1973. 
Subsequently, the police filed a challan and the Magistrate committed all the 
eleven accused to the Sessions Court. 
An application for cancellation of the bail of the 3 appellants was file<l before 
the Sessions Court on the ground that their petitions for grant of bail were rejected 
on merits both by the Sessions Court and the High Court and that since challans 
were filed the court should cancel the bail. The Sessions Judge relying on 1975 
PU (Cri.) 143 (Ajaib Singh v. State of Puniab) held that the considerations 
for grant of bail at the stage when no report u/s 173 Cr.P.C. was filed was 
entirely different because if the report is not produce4 within 2 months, the 
Court has no option but to. grant bail to the accused howsoever heinous the 
nature of the offence may be. 
Holding- that when once a report under s. 
173 
Cr.P.C. is filed by the police, the court has jurisdiction to cancel the bail, the 
Sessions Court allowed the above application and cancelled the bail. 
An appeal against the order of the Sessions Judge cancelling the bail was 
dis missed by the High Court. 
A 
B 
c 
D 
E 
The view taken by the High Court was challenged in the appeal before this 
Court by special leave on the ground that when once the bail is granted u/s. 
F 
167(2) Cr.P.C. it cannot be cancell:d on the mere ground that subsequently the 
police had filed a challan but that the bail .order can only be canceJled under the 
provision of s. 437(5) Cr.P.C. 
Section 167_(2) of the ~riminal Procedure· ~ode, 1973 empowers the Magis-
trate to authonse the detention of the accused in custody for a term not exceed-
ing 15 days. in the \vhol~. The proviso, however, provides that no 1\[agistrate 
shall authonse the detention of the accused person in custody under that section 
for ?- total period exceeding 60 days and that on the expiry of the said period 
G . 
of sixty days _the a~cused person shall be released on bail if he is prepared 10 
and does furnish bail and that every person released on bail under that section 
shall be deemed to be so released under the provisions of 
Chapter XX'XllL 
Se:<=ti.olil 437(1) provi~es that any person accused of or suspected of the con1 
mission of a_ny nonbailable offence may be released on bail but that he ihall not 
be. released 1f there appears reasonable grounds for believing that be has 
been 
guilty of an offence punishable with death or imprisonment for life. Sub-section 
(2) of s. 437 empowers the court to release an accused if there are not reason-
H 
able grounds .for believing th~t the accused 
has 
committed a 
non-bailable 
offence. 
Section 437(5) provides that any court which has release<! a pmon on 
b~l under sub-s. (1) or sub-s. (2) might, if it considers it necessary, so to do, 
dtrect that such person be arrested and n1ay be committed to custody. 
A 
B 
c 
D 
E 
F 
·G 
H 
586 
SUPREME COURT REPORTS 
(1978] l s.c.R. 
Allowing the appeal, 
HELD: (I) As under s. 167(2) a person who has been released on the 
ground that he had been in custody for a period of over 60 days is deemed to 
be released under the provisions of Chapter XXXIII, his release should be con· 
sidered as one u/s 437(1) or (2). Section 437(5) 
empo\vcrs 
the court to 
direct that the person so released may be arrested if it considers it necessary to 
do so. The powers of the court to 4ancel bail if it considers it necessary 
is 
preserved in cases where a person has been released on
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