Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 : AIR 1978 SC 179

Gurucharan Singh and Ors. vs State (Delhi)|| Case Summary

Introduction

This case famously known as the 'Sundar Murder Case' had discussed the provisions related to bail and also cancellation of bail.

Facts

The bail granted by the Court of Session in the "Sundar Murder Case" was cancelled by the High Court of Delhi in an appeal made by the State against the order of the Court of Session. Therefore this appeal was made by the appellant under Article 136 of the Constitution.

Issue

1. Whether the High Court was right in cancelling the bail order granted by the Court of Session.

2. Whether the Court of Session had considered the requirements before granting bail to the accused.

Arguments of the Appellant 

1. By pointing out the difference between the wordings of S.497(1) of the old Code of 1898 which used "accused brought before the court" and S.437(1) of CrPC, 1973 which uses "accused brought before a court other than High Court or a Court of Session", they contended that the restrictions under S. 497(1) i.e. the likelihood of the accused being guilty of an offence punishable with death or imprisonment for life do not apply to the power of High Court or Court of Session to grant bail u/s 439(1) of the new Code of 1973.

2. S.498(2) of the old Code which is in correspondence with S.439(2) of CrPC, 1973 provides for the custody of a person released on bail might be taken back by only such court (HC/CoS) which granted bail. Therefore, the High Court can not cancel the bail order granted by the Court of Session.

Ratio

1. The power to grant bail provided in S. 437 of the 1973 code, rests with the Magistrate and it is not given to the High Court and Court of Session. Section 439 provides a special power only to the High Court and Court of Session to grant or cancel the bail.
2. The change in the words does not conclude that while granting bail u/s. 439, the High Court or Court of Session need not consider the restriction placed u/s 437 i.e. the likelihood of the accused being guilty of an offence punishable with death or imprisonment for life.
3. The High Court has the power to take back into custody any person released on bail by any Court under Chapter 13 of CrPC, 1973.
4. The Court of Session cannot cancel a bail granted by a High Court or Session Judge unless new circumstances arise during the progress of the trial.
5. Although the HC and Session Court have concurrent power to grant or cancel the bail u/s 439, it is nowhere mentioned that if the Session Court is granting bail under this section, the High Court will have no jurisdiction to cancel the bail under this same section of the Code.
6. The Court observed some of the points to consider before granting bail under both Sections 437 and 439. These are:
1. Nature and gravity of the circumstances in which the offence was committed.
2. Position of the accused with reference to the victim and witness.
3. Possibility of the accused to flee from justice.
4. Possibility of repeating the offence
5. Possibility of jeopardising his own life
6. Possibility of tampering with prosecution witnesses
7. Other facts and circumstances as well as its investigation.

Decision

1. The Session Judge didn't take proper account the grave apprehension of the prosecution that there was a likelihood of the appellants tampering with the witnesses.
2. The High Court was right in his decision.
3. Appeal Dismissed.
4. Upheld the decision of the High Court.