9911796707
TMI Blog1963 (3) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... also threatened to kill him. On 21st July 1962, 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing which he had given in State v. Mangilal AIR 1952 MP 161 ruled that anticipatory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 497 and 498 enable the Court to exercise the power or granting bail to a person accused of or suspected of the commission of an 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (4) that if after the conclusion of the trial before delivery of judgment the Court is of the opinion that there are reasonable grounds for believing that the accused is not guilty 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 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch has been repeatedly used in Sections 496, 497 and 498, and the concept of 'bail' as understood in the Code cannot be ignored. The dictionary meaning of the word 'bail' is 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 deliver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his voluntary appearance in Court, may place himself at the 'disposal' of the Court. But by such appearance he does not place himself in the legal custody of the Court for securing bail. There 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an offence and whether he should be challaned for it. It is clear from the record that while the Police were still considering whether Narayan Prasad should be arrested for offences under Sections 324 and 452 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be granted. It is not necessary to discuss those authorities. In Hidayatullah v. The Crown AIR 1949 Lah 77 which is a decision of a foreign Court, it has no doubt been held that in a proper case the High Court has power under Section 498 to make an order that a person, who is suspected 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earance by such a person of his own accord voluntarily as otherwise there could never be any appearance of a person if in custody unless produced by his custodians. The contrary views have apparently been based on the ground that since the word 'bail' itself signified release from a custody there could be no order granting bail without the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound to follow it. A Single Judge differing from a decision of another Single Judge in a previous case should refer the case to a larger Bench instead of deciding the case in accordance with his own view. In Mahadeolal v. Administrator General of W.B., AIR 1960 SC 936 the Supreme Court has pointed out that judicial decorum no less than legal propriety requires that a Single Judge differing from a decision of another Single Judge in a previous case on a question of law should refer the case to a larger Bench instead of deciding the case in accordance with his own view and that the same procedure should be followed by a Division Bench if it is inclined to disagree with an earlier decision of another Division Bench on a question of law. For all these reasons, our conclusion is that under Sections 496, 497 and 498 of the Code bail cannot be granted to a person who has not yet been arrested for any actual charge of any offence or even on suspicion of his complicity in any offence and who is not required to surrender to any custody under any order of arrest but who apprehends that he may sometime be arrested by the Police as a person accused of or suspected of the commission of an offen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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