1. On the 10th December 1950, Kodiaya. Ramiya, Suriya and Raghiya were, according to the police, found gambling in the Arambha bazar, Waraaeoni Tahsil, Balaghat district, and the constable on duty who had seized the gambling articles was taking them with those persons to the police-station. On the way there, he was set upon by Kondiaya and others who removed the flash and other articles and took to flight. Offences under Sections 332, 342 and 392, Penal Code were registered and investigation began. Kondiaya, Ramiya, Suriya and Raghiya were in due course arrested and released on bail on 15th December 1950 by the First Class Magistrate, Waraseoni.
2. On 19th and 22nd December 1950, remands were asked because a 5th person said to have teen involved in the incident was absconding. Remand was accordingly granted until 27th December 1950, but 4 days previously Mohammad Hasan appeared through his counsel before the Magistrate and filed an application for bail. The Magistrate did not apprise the police of this or make any other enquiries and directed the release of Mohammad Hasan on bail. He also ordered the issue of a memorandum to the station officer, Rampaili, intimating that Mohammad Hasan had surrendered and had been released on bail. Thereafter, the Public Prosecutor, Balaghat, filed an application for the revision of the order re-leasing Mohammad Hasan on bail; and the Sessions Judge, Chhindwara, has now reported the case under Section 488, Criminal P.C. with a recommendation that the magisterial order, dated 23rd December 1950, be set aside.
3. The non-applicant's learned counsel, in the course of arguments, referred me to the Full Bench case of Hidayat Ullah v. The Crown A.I.R. 1949 Lah. 77 in which it was 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. That case was considered by a Fall Bench in Amir Chand v. Emperor A.I. R.1960 B P. 53 and dissented from. The decision of a Division Bench in Emperor v. Abubakar A.I.R. 1941 Sind 83 to the effect that Section 497 does not authorise and was not intended to authorise the grant of bail by anticipation to persons who are not arrested or detained was approved.
4. I am in respectful agreement with the views taken by the East Punjab High Court and the Sind Chief Court and would quote the following observations of Khosla J. in Amir Chand v. Emperor A.I.R. 1950 P&H; 53:
The very notion of bail presupposes some form of previous restraint. Therefore, bail cannot be granted to a person who has not been arrested and for whose arrest no warrants hive been issued. Section 498, Criminal P.C., does not permit the High Court or the Court of Session to grant bail to anyone whose case is not covered by Sections 496 and 497, Criminal P.C. It follows, therefore, that bail can only be allowed to a person who has been arrested or detained without warrant or appears or is brought before a Court. Such person must be liable to arrest and must surrender himself before the question of bail can be considered. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be allowed if he appears in Court and surrenders himself.
Kapur J. also remarked in that case (p. 64):.a person who is not already under some kind of restraint cannot be put under restraint by being enlarged on bail and the Code contains no such provision whereby what is being termed 'anticipatory bail' can be given.
5. In the case before me, the non-applicant was at liberty and under no form of restraint whatever on 23rd December 1950 when he made an application for enlargement on bail. It is true that he appeared in Court on more than one occasion thereafter, but that did not convert him into an accused on 23rd December 1950 or even on the dates of his appearance in Court. I also note that when he was released on bail under Section 497, Criminal P.C. the Magistrate omitted to record in writing his reasons for pissing the order.
6. The reference made by the learned Sessions Judge is accordingly accepted and the order of 23rd December 1960 is set aside. The inquiry by the police vis-a-vis the non-applicant should be made without delay and if he is proceeded against, he will, no doubt, be released on bail as have been the 4 aroused in the case.