TMI Blog1963 (3) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... 62, Narayan Prasad presented an application before the Second Class Magistrate styling it as one in the matter of grant of amicipatory bail under Section 496 Cr. P. C. , stating therein that on a report made by Komal Singh a case has been registered against him by the Police under Section 324 and 452 I. P. C., that he was a respectable citizen of Seoni owning considerable property, that there was no danger of his absconding or leaving the jurisdiction of the Court, and praying that he be released on bail. Narayan Prasad appeared in person before the First Class Magistrate, Shri Arya, when the application was taken up for disposal after notice to the Police. The learned Magistrate perused the Police diary and observed that-- It is evident from the case diary that the accused is suspected of the commission of an offence. At this stage it would be too premature to conclude for what particular offence the accused would be charge-sheeted. Hence at present I am to be guided by the matter as it stands at present. A consideration of the facts constituting the First Information Report is of paramount importance in ascertaining the nature of the offence alleged to have been committed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory bail could be granted to a person accused of or suspected of the commission of an offence on his appearance in Court in person or through a counsel. He distinguished the decision in AIR 1951 Nag 471 (supra) by pointing out that it was given before the Criminal Procedure Code was amended in 1956 and that the addition of the words or suspected of the commission in Section 497 by the Criminal Procedure Code (Amendment) Act (No, 26 of 1955) had the effect of widening the powers of the Court in the matter of grant of bail and made it very clear that anticipatory bail could be granted to a person who had not been actually arrested and on whom no restraint of any hind had been put and who was merely suspected of the commission of any offence. The question, which we are required to determine, has not been formulated in the order of reference, but it can be comprehensively stated thus-- Whether under Sections 496, 497 and 498 Cr. P. C. bail can be granted to persons who have not yet been arrested for any actual charge of any offence or even on suspicion of their complicity in any offence but who apprehend that they would be arrested as persons accused of or suspected of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence even when he is not brought before the Court after arrest but is free and voluntarily appears complaining that in all probability the Police, prompted not by motive of furthering the ends of justice in relation to any case but by some ulterior motive and in order to disgrace and dishonour him, intend to arrest him; and that the Court is entitled to exercise this power even when no warrant has been issued for the arrest of the person and without even causing the person to be formally arrested. It was said that the words or suspected of the commission of were inserted by Act No. 26 of 1955 in Section 497 with the object of enabling the Court to grant anticipatory bail , and that the expressions in any case and direct that any person be admitted to bail in Section 498 plainly indicated that bail could be granted to any person who was not in custody or was not required to surrender to any custody but who apprehended arrest. Learned Counsel commended to us for acceptance of the reasoning given, by Khan J. in AIR 1960 Madh-Pra 54. A reference was also made to the decision of this Court in The State of M.P. v. Bhagwat Sao, Cr. R. No. 271 of 1961, D/- 30-8-1961 (MP) where Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilty of any non-bailable offence, then the Court shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear the judgment delivered. It is obvious from the provisions of Section 497 that it gives discretion to toe trial Court to order release on bail in cases of non-bailable offences subject to the restrictions mentioned in Sub-sections (1), (2), (3A) and (4) and contemplates the release of a person granted bail from custody. The next section, namely, Section 498, deals with three matters, namely, (1) fixing the amount of bond; (2) the power of the High Court and the Court of Sessions to admit any person to bail in any case, whether there fee an appeal on conviction or not; and (3) the power or the High Court and the Court of Session to reduce the bail required by a Police Officer or a Magistrate. On comparing Section 497 with Section 498, the conclusion is irresistible that the High Court and the Court of Session are invested by Section 498 with wide powers in the matter of granting or refusing bail not only as Courts of superior or revi-sional jurisdiction but they have also concurrent jurisdiction with the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to set free or liberate a pe'rson on security being given for his appearance. In Wharton's Law Lexicon (14th Edn.) the word 'bail' has been defined thus-- to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have, if they fear his escape, etc. the legal power to deliver him. In Tomlins' Law Dictionary, it has been stated that the word 'bail' is used in our Common Law for the freeing or setting at liberty of one arrested or imprisoned upon any action, either civil or criminal, on surety taken for his appearance at a day and place certain. The reason why it is called 'bail', is because by this means the party restrained is delivered into the hands of those that bind themselves for his forthcoming, in order to a safe keeping or protection from prison . The word has been similarly defined in Earl Jowitt's 'Dictionary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no provision in the Code empowering the Court to take into custody a person, offering or surrendering himself if there is no justification in law for the Court to exercise the power of taking the said person into custody. If a free person, whom the Polled has not thought it fit to arrest and against whom there is no warrant of arrest, comes to the Court for bail so that he may be spared the ignominy of possible arrest, the Court would not be justified in taking him into custody forming its own conclusion from the police papers and then releasing him on bail for a supposed offence. As was observed by Kapur J., in AIR 1950 EP 53. If I may say so, it would be an absurd position that the Court should put a person under restraint when he is a free man and there is no charge against him excepting perhaps something contained in the first information report which may or may not be sufficient for the appre hending of that person. I cannot imagine that the Code could have conferred any such power on the Court. * * * * * * To my mind this would be an intolerable position that although a person was quite free when he came to Court he should be put in jeopardy of arrest and of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52 I.P.C., in respect or which Komal Singh had lodged a report against him, the Magistrate, on a perusal of the first information report, came to the conclusion that though it was premature to decide for what particular offence Narayan Prasad should be charge-sheeted he could at the most be said to have committed offences falling under Sections 324 and 294 I.P.C. which were both bailable. In his application for bail, Narayan Prasad had not admitted that he had committed any such offence. There was no warrant in law for the Magis-trate to take upon himself the duties of the Police and determine from a perusal of the first information report the offence which Narayan Prasad appeared to have committed just for the purpose of enabling him to exercise the power of granting bail. The record also does not reveal whether Narayan Prasad was formally arrested for these offences before the order granting bail was made. In our opinion, the word 'appears' as used in Sections 496 and 497, therefore, means the appearance of a person who is required to surrender to custody under an order of arrest made against him, and not the appearance of a free person who is under no restraint and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of an offence for which he may be arrested by a police officer, or a Court, shall be admitted to bail. In that case it was recognised that the release of a person on bail necessarily involved release from some custody. But a distinction was drawn between the expressions release on bail used in Sections 496 and 497 and the expression direct that any person be admitted to bail used in Section 498, and it was held that the latter expression was wider than release on bail and did not necessarily involve the release of a person in custody. With great respect to the learned Judgas deciding the Lahore case, we do not find ourselves in agree-ment with this view. For practical purposes, there is no difference between the two expressions. In strictness, in every case of release on. bail, there is first an order of decision to admit a person to bail and this is followed by the execution of bail bonds and the release on bail of the. person concerned. As was pointed out by Das C. J. in the order of reference in AIR 1950 EP 53 that the words direct that any person be admitted to bail were used in Section 498 only to make it clear that the formalities of taking a bail bond on the execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person being in custody. If it were to be a condition precedent to the granting of bail that the person to be released must be in custody then there could never be any question of appearance of the accused in Court unless he was brought before it. But in Section 497 of the Code before the amendment both the situations, in one case the accused himself appearing in Court and in another being in custody he is brought before the 'Court, were envisaged by the use of two separate expressions; (i) 'appears' and (it) 'or is brought'. The amendment, therefore, in my opinion, was made so that there may be left no scope for contemplating any particular- prior condition or situation to exist before granting of bail. So even without that amendment, in my opinion, anticipatory bail could be granted. With great respect to the learned Judge, we think that the above observations of his do not give due effect to the meaning of the word 'bail' and to the fact that the word 'appears' takes its colour from the provisions in which it has been used and which deal with the release of a person on bail, that is to say, the release of a person from actuator threatened ..... X X X X Extracts X X X X X X X X Extracts X X X X
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