1. Bakshi Sardari Lal, Sub-Inspector of Police, has presented this petition through his Counsel under Article 226 of the Constitution for the grant of order direction or writ in the nature of writ of habeas corpus. According to the averments in the petition, he was posted as Sub-Inspector of Police in P.S. Kamla market and on 14th April, 1967, he went on sick leave because he had an attack of bronchitis. An entry to this effect was duly made in Roznamcha of P.S. Kamla Market. he claims to have been confined to indoor treatment and he got well in 22nd April, 1967 when, according to him, he regained him health and became fit to report for duty having came to know that warrants for his arrest had been issued, he surendered himself on 22nd April, 1967 before Mr. Godha Ram, D.S.P. Delhi. he was accordingly produced on that very day before Kumari Vimla Bhagat, Magistrate 1st Class, functioning as Duty Magistrate on that date, who released the petitioner on bail. Kumari Vimla Bhagat has been implead as respondent No. 3. It is then averred that there are two cases against the petitioner initiated by F.I.R. 87 and F.I.R. 88 of Police Station Chanakyapuri, New Delhi. After examining all the papers, police diary etc., respondent No. 3 had ordered the petitioners release on bail. In one case, the order was that the petitioner should furnish a bail for Rs. 7,000 with one surety and in the second case he was required to furnish a bail for Rs. 5,000 with one surety. A few minutes after these orders were passed, and when respondent No. 3 was taking up for consideration other application presented by the police for remand of other accused persons, she was called in her chambers. During this interval, the petitioners Counsel had filled the surety-bonds and the bail bonds and indeed the sureties, according to the petitioner, were present in Court in person. Those two sureties were Dr. Manohar Lal, a sitting Municipal Councilor, and Mr. Mahinder Nath. When respondent No. 3 returned from the chamber to the Court room, the sureties were produced before her along with the necessary documents, but the learned Magistrate refused point blank to entertain the sureties or to go through the documents including the affidavits. On the other hand, it was ordered that the S.H.O. should verify the status of sureties and the truth of the declarations made by them. The learned Magistrate, according to the petitioners averments did not say so in her order as to which Station House Officer of a large number of police stations in Delhi was to investigate. This, so proceeds the petition, was a deliberate act so that the orders may be left vague and acceptance of the surety and the bail-bond be delayed. This conduct is described as mala fide conduct. The learned Magistrate fixed a period of 7 days for the Station House Officer to submit the report. This again, according to the petitioner, was intended to obstruct the petitioners release on bail and indeed he was remanded to judicial custody up to 29th April, 1967. On 29th April 1967, the petitioner moved an application before Mr. Jagmohan, Magistrate 1st Class, New Delhi, in whose Court the petitioners trial was to be held and, therefore, who was competent to take congnizance of the matter then pending against the petitioner. In this application, it was expressly pleaded that the applicant was in judicial custody and had been remanded up to 29th April, 1967. It was prayed that the sureties be accepted and the accused released pursuant to the orders made by respondent No. 3 as Duty Magistrate on 22nd April, 1967. Mr. Jagmohan directed the Ahmed to put up the orders, but according to the report, the bail orders had not been received till then. The Ahmed or the Reader of the Court of respondent No. 3 was thereupon called upon to report. This order was forwarded for compliance to Mr. Goyal, Reader to Mr. L.D. Gupta, by V. Bhagat. Further nothings on this application, as per Annexure E to the writ petition, show that Mr. Jagmohan, on 27th April, 1967 asked the S.H.O. Chanakyapuri to report on 28th April 1967 and in case the order bail-bonds had been sent to the thana the same may be produced in his Court on the said date. The S.H.O. Chanakyapuri reported on 28th April 1967 that the two bail applications along with two bail-bonds had been received on 26th April 1967 for verification of the status of the sureties, but since the sureties were residents of Police Station, Karol Bagh area, and investigation of both the above cases was with the C.I.D. Crime in verification was directed to be done through either of the two aforesaid units. Papers were thus returned back on 27th April, 1967 from where they had been received. Mr. Jagmohan. respondent No. 5, according to the petitioner, declined to accept the bail and the suerty bonds on the ground that the bail order was not before him and, therefore, he was unable to act in the matter and returned the surety and the bail-bonds on the petitioners Counsel for presentation before respondent no. 3. The Counsel for the petitioner thereafter made efforts totrace the original orders made by respondent No. 3 but they were neither available in her Court nor in the Court of Mr. Jagmohan. On 29th April 1967, the petitioner was not produced before any Court for remand but was kept in Tihar Central jail and no formal order remanding him for further period was made by any magistrate in his presence. This averment is pleaded in paragraph No. 11 of the petition. In the meantime, S.H.O. Karol Bagh sent his report dated 28th April, 1967, adversely commenting upon the competency of the sureties Dr. Manohar Lal Verma and Mr. Mohinder Nath. In the case of Dr. Manohar Lal Verma, the comment (Annexure H to the writ petition) is in the following terms:--

"Dr. Manohar Lal Verma is the Municipal Councilor of the area. He originally comes from District Jhang West Pakistan while Mr. Sardari Lal comes from Distt. Rawalpindi and the distance of the two districts was over 400 miles.

They have nether any relation nor have any common links either by profession or through other counts. As a Municipal Councilor of the area, he has come forward for the bail. In the circumstances given above, Mr. Manohar Lal Verma has no direct control over Sardari Lal. Thus he cannot cause sufficient influence or procure the accused presence in Court as and when directed."

In regard to Mr. Mohinder Nath, it is stated that he lives in a rented house and his own house in Katra Neel is rented out. His father is supporting his son mostly and that the assets of the surety are not exclusively owned by him. On this ground, the status of this surety was not verified. The last sentence is in the following words:--

"As they are living at a considerable distance, it Will not be possible for me to exercise physical control over the accused and thereby he Will be incapacitated to have sufficient influence over him."

According to the petition, these comments are inspired by a desire to see that the sureties are rejected. Needless to state that the petitioner has controverted even the facts mentioned in these two comments. The bailbonds, of the petitioner were accordingly rejected by respondent No. 3 without any notice to the petitioner or his Counsel. On coming to know of this rejection, the Counsel for the petitioner enquired from respondent No. 3 if the missing orders and the bail-bonds had been traced out. On getting information on this point on 29-4-1967, the petitioner approached the learned Sessions Judge, Delhi, for reduction of the bail amounts. Those applications were fixed for hearing for 2-5-1967. On that date, learned Sessions Judge heard Mr. Narinder Singh, Counsel for the petitioner, and Mr. Damodar Dass, Additional, Public Prosecutor for the State, on the said application. During the course of arguments, the learned Additional Public Prosecutor informed the learned Session Judge that the State had already moved Respondent No. 3 for cancelling the bail and surety bonds and that the learned Sessions Judge should, for this reason, postpone the decision on the application praying reduction of the bail amount. The learned Sessions Judge after hearing the arguments, stated that he would announce the orders after lunch. At 3 P.M. on that day, the learned Sessions Judge had to go to attend some meeting from where he was expected to return after half-an hour, but he did not come back at all, with the result that the orders were not announced. On 2.5.1967, the petitioner was also served with a notice of the application for cancellation of the bail order moved by the State. This notice came from the Court of respondent No. 3 and the petitioner was directed to appear to question the report of denial of acceptance of notice by the petitioners Counsel. On 3-6-1967, according to the writ petition, surety-bonds duly attested, signed and sealed by Mr. Narinder Singh, Magistrate 1st Class, Delhi, were presented for acceptance to respondent No. 3. The sureties as also the petitioner in custody were present along with the three lawyers of the "Committee for the Defence of the Illegally detained Policeman." Respondent No. 3, however, did not take cognisance of the signatures and seal of the Magistrate concerned if he had actually signed sealed and attested Annexures F and G attached to the writ petition. On 3-5-67, the petitioner feeling convinced that he was not going to be released on bail, moved two separate applications under Section 513. Criminal Procedure Code, praying that cash recognisance be accepted. For this purpose, respondent No. 3 fixed 4th May, 1967 for arguments. The Prosecuting Inspector thereupon requested respondent No. 6 to take up the application for cancellation of the bail orders whereas the petitioners Counsel approached the Court for directing the police to file the challans and other papers. Respondent No. 3 acceded to the petitioners request and directed the challans to be put in the Court by 4th May, 1967, also giving to the petitioners Counsel two copies of the applications moved by the Prosecuting Inspector for the cancellation of the bail orders. On inspecting the record on 5th May 1967, the petitioner found that respondent No. 3 had already ordered on the applications of the State that he had no jurisdiction to make any more orders and that those applications be presented to the Magistrate concerned. It is added in the writ petition that the learned District Magistrate, respondent No. 2 in these proceedings, had already made on order distributing the work of prosecuting persons arrested in the "police agitation" to six magistrates including Mr. Jagmohan, respondent No. 5, who is trying the cases against the petitioner. On 4th May, 1967, the petitioner and his Counsel along with sureties again appeared before respondent No. 3 with the request to accept the bailbonds, but on her refusal to do so, without verification from the magistrate concerned, the petitioner submitted his personal bond and produce a sum of Rs. 12,000 in case before the learned Magistrate. Respondent No. 3, however, insisted that arguments for cancellation of bail may be heard on 4th May 1967 instead of 5th May, 1967, the date already fixed. To this the Counsel for the petitioner objected saying that it was unjust. Respondent No. 3 is then alleged to have left the Court and gone to the telephone for consultation and on her return, she agreed to hear the arguments on the application for cancelling the bail on 5th may, 1967 at 4 P.M. On the same day, it was disclosed to the Court that the challans had already been presented in the Court of Mr. Jagmohan, respondent No. 5. On being apprised of this fact, the petitioners Counsel suggested to respondent No. 3 to forward the application for cancelling the bail to the Court of Mr. Jagmohan, but she did not agree. On 5th May, 1967, the application for reduction of the bail amount came up for hearing before the learned Sessions Judge when he was informed that an application for cancelling the bail order had already been made by the State. The petitioner complains that the learned Sessions judge should have decided the application for reducing the amount of bail, ignoring the fact that the State had already for concealing the bail order itself which was fixed before respondent No. 3 on the same day. When the petitioner appeared before respondent No. 3 on 5th May, 1967 his Counsel desired the Court to take up first the matter of acceptance of bail, but the Court, in disagreement with the petitioners Counsel, decided first to take up the question of cancellation of the bail. In these circumstances, the petitioner felt that respondent No. 3 was keen to cancel his bail, particularly when on 27th April, 1967 she had expressed the view that this application should be presented to the Magistrate concerned. The petitioner thereupon applied for the transfer of the proceedings from the Court of respondent No. 3. On 6th May, 1967 the question of reducing the bail amount came up before the learned Sessions Judge when the Prosecutor applied for cancelling the bail order. The petitioner suggests that this was done pursuant to a hint dropped by the learned Sessions Judge. It is in these circumstances that the present petition for a writ of habeas corpus has been presented in this Court.

2. In the return, Mr. B.N. Tandon, District Magistrate, Delhi, giving a background of this case has affirmed that on 14th April, 1967. Mr. D.K. Aggarwal, I.P.S. Superintendent (Central) Delhi served on the petitioner personally at Police Station Kamla Market an order of the President of India dismissing the petitioner from service. On that very day, the petitioner is alleged to have committed an offence under Section 188, Indian Penal Code, by taking out a procession and holding a demonstration outside the house of the Home Minister. This offence, it is stated, is non bailable and F.I.R. No. 87 was registered at Chanakyapuri in respect of this offence. On 15th April, 1967, the petitioner repeated the demonstration which resulted in F.I.R. No. 88. About 600 arrests according to the return were effected on 15th April, 1967. Non bailable warrants for the petitioners arrests were issued by Mr. Omesh Sehgal, Sub-Divisional Magistrate on 20th April, 1967 in the aforesaid two cases which along with a third case are now stated to be pending in the Court of Mr. Jagmohan, Magistrate 1st Class, respondent No. 5. On 22nd April, 1967, which was a public holiday, the petitioner, against whom two non-bailable warrants had already been issued, surrendered himself before the D.S.P. (Criminal Branch) and was produced for remand before Miss Bhagat, Duty Magistrate. According to the return, she remanded the petitioner to judicial custody till 29th April, 1967, on which date the petitioner was produced before Mr. Jagmohan in Tehar Jail who remanded him to judicial custody till 10th May, 1967. On 3rd May, 1967 three complaints were filed in the Court of Shri Jagmohan in which the petitioner was summoned for 10th May, 1967. On that date, on the petitioners request, all the three cases were adjourned to 19th May 1967. In the return, it is admitted that the Duty Magistrate did order the petitioners release on bail in two cases and it is added that in those days, as a result of a large number of policemen having been arrested and others absenting themselves from duty, the working of the various Courts was not normal. Mr. Tandon has denied that he had in any manner obstructed the petitioners release on bail by Miss Bhagat. Most of the relevant averments made in his affidavit are supported by Annexures. It may here be pointed out that while admitting this petition for habeas corpus, we issued notice only to the Superintendent, Tihar (Central) Jail, and the District Magistrate, Delhi, because in our view, the various Courts which had made judicial orders were, on the facts of this case, not required to submit any return. Similarly respondent No. 6, S.H.O. Karol Bagh, Delhi, had nothing to do with the present custody of the petitioner and was, therefore, not required to submit any return.

3. The learned Counsel for the petitioner has confined his arguments before us to the narrow point that an offence under Section 188, Indian Penal Code, is bailable and without actual production and formal proof of the notification converting this offence into a non-bailable offence the petitioners detention particularly after the order for his release on bail had been made, is illegal and the learned Magistrate or the learned Session Judge have no jurisdiction to cancel the bail. It is added that even if they had jurisdiction to cancel the bail order, this jurisdiction can only be exercised after the actual release of the petitioner and not while he is still in custody awaiting his release pursuant to the order directing hi release. The learned Counsel has drawn our attention to Section 10 of the Criminal Law Amendment Act No. XXIII of 1932 which confers power on the State Government to make certain offences cognizable and non-bailable. The offences which a State Government is empowered to make cognizable and non-bailable by virtue of the power conferred by this Section include offences under Section 188 Indian Penal Code. This power can be exercised by notification in the Official Gazette. Mr. Lakhi very strongly argues that according to Section 78 of the Indian Evidence Act, notifications of the Central Government or of a state Government are required to be proved by a document purporting to be printed by order of any such Government and there is no other mode of proof of such notifications. He has in support of his contention cited a Bench decision of the Nagpur High Court in Mathuradas v. The state, AIR 1954 Nag. 296 which while dealing with the case of a notification published in the Madhya Pradesh Gazette fixing retail prices of yarn, it was observed that the Court in the circumstances of that case was not entitled to take judicial notice of a notification published in the Gazette and that the fact of the publication of the notification is to be proved in the manner provided for in Section 78 of the Indian evidence Act. The Counsel has also relied on a recent decision of the Supreme Court in the State of Madhya Pradesh v. Vishnu Prashad Sharma, AIR 1966 SC 1593 [LQ/SC/1966/49] for the purpose of showing that considerations of difficulty in proving the Gazette notifications should not weigh with the Court. After making a reference to Section 57 of the Indian evidence Act the learned Counsel for the petitioner has emphasised that Section 57 does not control Section 78 of this Act and that without producing the documents purporting to be printed by order of the Government concerned the Court cannot take judicial notice of a notification which purports to publish the law inforce in India. In our opinion the submission is misconceived. The learned Counsel for the respondents has produced before us a copy of the Gazette of India Part II-A dated 14th January 1933, in which a notification dated 11th January 1933 issued by the Chief Commissioner, Delhi in exercise of the powers conferred on him by Section 10 of the Criminal Law Amendment, Act 1932 is published declaring offences under Section 188 Indian Penal Code, when committed in Delhi to be both cognizable and non bailable. This Gazette is in our opinion clearly admissible in proof of the notification and the Court is entitled to take judicial notice of the law as gazetted therein. Without expressing any considered opinion on the correctness or otherwise of the Rule of law enunciated in the case of Mathuradas we would merely observe that the present case is clearly distinguishable from the one which was before the Bench of the Nagpur High Court. The learned Counsel for the respondents has also submitted that three cases are at the present moment pending against the petitioner and indeed they were all pending on the date when the present application for a writ of habeas corpus was presented in this Court. A complaint under Section 7 Criminal Law Amendment Act, 1932 coupled with Sections 353/149 Indian Penal Code, was among others presented in the Court of Mr. Jagmohan Magistrate 1st call on 3rd May., 1967 in which the present petitioner was summoned for 10th May, 1967. The offence under Section 7 Criminal Law Amendment Act, is as per Section 9 of the same Act, both cognizable and non-bailable. According to Mr. B.B. Lal the petitioner is at the present moment committed to judicial custody under orders made by the competent Court seized of complaints against the petitioner for alleged commission of atleast two non-bailable offences. There is in the circumstances no occasion for holding the petitioners detention in judicial custody to be illegal or improper.

4. In so far as the question of jurisdiction of respondent No. 3 or of the learned Sessions Judge to cancel the bail order is concerned, the respondents learned Counsel has drawn our attention to Section 497(5), Code of Criminal Procedure according to which a High Court or a Court of session and in the case of a person released by itself any other Court, may cause any person who has been released under this Section to be arrested and may commit him to custody. this argument is sought to be met on behalf of the petitioner by the submission that the word released in this Section means actual release in the sense of a person being actually set at liberty and that till he is so released in fact, the Courts mentioned in this Sub-section cannot invoke their jurisdiction to arrest and commit to custody a person who is merely ordered to be released. This submission ingenious though it is, does not commend itself to us. Sub-section (5) of Section 497 is really designed to protect the interests of administration of justice and to prevent its being hampered in any manner. In case an order has been made for releasing a person on bain and it is later found that such order is either based on some misapprehension or being otherwise infirm is likely to prejudice the interest of administration of justice, then this provision of law seems to us to amply empower the Courts mentioned therein to make a suitable order cancelling the order of release on bail so as to protect and safeguard the cause of justice. This provision in our opinion necessarily implies jurisdiction in the Court concerned to cancel an order even before the person in question has been actually released, and it is not intended to prohibit the Courts from canceling the order of release on bail before it is executed. This seems to us to be just common sense. This provision must be construed in a practical manner for the purpose of achieving the general purpose and object, which the Legislature can reasonably be presumed to have in view. The argument that being a penal statute, this Sub-section should be construed strictly seems to us to be wholly misconceived. Similarly any reference to the dictionary for the purpose of controlling the meaning of the word release, used in Section 497 (5) would be misleading. We have to construe this Section in the background of its purpose and object and so construed it does not seem to us to have been intended to restrict the exercise of the power of the Court only after an accused person is actually released. It is, in our view within the competence of the Court to cancel an order of release on bail even before its execution if protection of the interests of administration of justice so demand. Granting of bail in a non-bailable offence is from one point of view a concession allowed to an accused person and if for certain reasons the Court comes to the conclusion that for substantial reasons it was not a fit case for making an Order of release on bail we are aware of no principle which would divest the Court of the jurisdiction to cancel that order. In any event, Sub-section (5) of Section 497 does not imply the negative, as seems to be suggested by the petitioners Counsel. If the jurisdiction to cancel such an order exists, then in the present proceedings, we are not concern with the question as to whether or not the Court should cancel the order.

5. The question of cancellation of the bail along with the question of reduction of the amount of bail being admittedly pending before the learned Session Judge for adjudication it is not understood how the petitioners custody under a remand order made by a competent Court can be considered to be illegal or improper so as to justify relief by way of a release order on a writ of habeas carpus in this Court. If and when the learned Sessions Judge makes an order disposing of the application by the State for cancelling the order of the petitioners release on bail or disposes of his application for reducing the amount of bail to his prejudice, the petitioner would be entitled under the Code to approach the higher Court on the revisional side or under Section 561-A of the Code of Criminal Procedure, if permissible, and may also in fit case invoke the jurisdiction of this Court under Article 227 of the Constitution. To pray for a writ of habeas corpus is in our view somewhat misconceived in such circumstances.

6. The petitioners Counsel in a disparate attempt has tried to question the legality of the Gazette Notification of 1933 on the ground that this is a delegated legislation, which is beyond the permissible limits under our Constitution. Here again we are unable to agree with the learned Counsel. The Gazette Notification of 1933 cannot be tested in terms of Republican Constitution enforced in 1950 and it has not been shown that as a pre-Constitution law this notification is unconstitutional.

7. Although we are of the definite view that the present petition for habeas corpus is wholly misconceived and incompetent, we nevertheless feel that the learned Magistrate concerned have not displayed that judicial detachment and objective approach in this case which is expected of the criminal Courts in our set up. The Magistrates concerned have, in our view, not understood the principles governing grant of bails. For every bailable offence bail is a right and not a favour and in demanding bail from accused persons the Magistrates should bear in mind the social status of the accused and fix the amount of bail accordingly, taking care that the amount fixed is not excessive. In the cases of non-bailable offence as well there are circumstances under which the accused may be admitted to bail. When an order for bail was granted by a learned Magistrate in our view it was a hardship to detain the party released on bail for an hour longer than the law required. Detention of accused persons entitled to be released on bail, tends to prejudice their means of defence and if the accused are respectable and innocent they are exposed to the indignity of imprisonment for which no subsequent order of discharge or acquittal can attorn. This is one side of the picture. Now considering the other side in our view it is the duty of the Magistrate concerned to satisfy themselves that the sureties are in point of substance persons of whom it may reasonably be presumed that they can if necessary satisfy the terms of the bail bond. It has in this connection to be remembered that the person released on bail has to be present at the hearing in the Courts and also whenever so required by the Court, with the result that the Magistrate accepting the bail must as a part of his duty satisfy himself that the surety is expected to satisfy this term of the bond. But this duty deserves to be preformed with judicious sense of responsibility maintaining a proper balance between the right of the accused on the one side and the interest of the administration of justice in which the society as a whole is vitally interested on the other. The petitioners suggestion that when he was Willing to produce before the Magistrate a sum of Rs. 12,000 he was entitled as a matter of law to be released forthwith on bail and that the learned Magistrate was in error in not doing so is also misconceived for release on bail is not ordered for the sole purpose of securing money for the State which may ultimately be forfeited. The real purpose is to secure the presence of the accused at the time of hearing so as to promote the cause of justice by facilitating the judicial process and causing to the accused as little inconvenience as possible consistently with the proper effective and speedy administration of justice. Deposit of money is one of the methods of making the accused and his surely realise that the accused person cannot with immunity obstruct the judicial process by absenting himself on the date of hearing or by absconding. The basic object is thus to see that judicial process is not obstructed by the absence of the accused for in our set-up the presence of the accused is ordinarily considered necessary at his trial for a criminal offence. On behalf of the respondents an attempt has been made to show that the petitioner has been involved in activities which were seriously prejudicial to the existence of a Civilised society and to the maintenance of law and order because being a responsible office in police force he took part in a general strike and unlawful demonstrations with the object of putting illegitimate pressure on the administration for enforcing some of the demands of the police service as such. These activities it is suggested were calculated to paralyse the entire civic life in the capital of this Republic thereby putting the millions of Delhi inhabitants to great hardship. This may or may not be so, but this is a matter to be considered at the trial and we have no doubt that the law Will have its course. In our view the seriousness of the charge against an accused person does not by itself justify on the part of the Courts any but concinnities and judicious application of the law wholly uninfluenced by collateral considerations of administration or executive convenience. There is an oblique suggestion in the petition that respondent No. 3 did not bring her own judicial mind to bear the question requiring adjudication but allowed her judicial functions to be influenced by some outside agency. It is neither possible on the material before us nor is it necessary for us in this case to express any opinion on this suggestion though we consider it our duty to impress on all the judicial officers in Delhi that the manner in which they discharge their judicial functions, necessarily reflects the image of our democrat status and demonstrates to the world the extent of our allegiance to the Rule or law which runs through the entire fabric of our Constitution. The facts and circumstances disclosed on this record do give us a prima facie impression that the delay on the part of the Courts concerned in dealing with the question of the petitioners release on bail and the question of the cancellation of bail was somewhat unreasonable even if the delay be due to the fact that the organised large-scale strike by the police force had paralysed the normal functioning of the Courts a matter of the seriousness of which we are fully conscious. This delay according to the petitioner was deliberate having been inspired by a consideration of illegal discrimination against him. Whether or not the petitioners suggestion is justified a point on which we express no considered opinion in our view the Courts should discharge their functions with judicious objectivity and detachment scrupulously keeping away from all extra-judicial considerations. This is the principal essential pre-requisite of a democratic judicial mind. Equality before law and impartiality of the judicial wing are two of the main pillars supporting our liberal democracy and any weakening of these pillars must necessarily endanger the entire body-politic supported by these pillars. We need not pursue this matter any further because the petitioners detention on the present record has not been shown to be either illegal or improper justifying his release on a writ of habeas corpus.

8. For the foregoing reasons this petition for writ of habeas corpus fails and is dismissed.