1. This petition was filed under Section 497, Cr. P. C. and another petition under Section 498 was filed on 4-4-52 in Court, supported by an affidavit and a Doctor's certificate. Both these petitions contain a prayer for enlarging the petitioner on bail. The Advocate-General stated that there was no objection to treat the earlier petition itself as having been filed under Section 498.
2. For an alleged attempt made on 24-3-1952 to commit murder by strangulation, the petitioner was arrested and a case against him was registered under Section 307, I. P. C. The applications for bail filed by him in the Court of the City Magistrate, Bangalore, before whom he was produced in the course of investigation, have been rejected.
3. The offence under Section 307, I. P. C. is a non-bailable one. The Criminal Procedure Code under Section 496 provides for granting bail in offences Other than non-bailable, and Section 497 regulates the admission to bail in non-bailable cases. While under Section 496 a person may be released on bail invariably on an application in that behalf, Section 497 places a limitation on the powers of a Magistrate in that respect. A distinction is drawn under Section 497 between non-bailable offences which are punishable with death or transportation for life and other non-bailable offences. A Magistrate is vested with discretion to release any person accused of a non-bailable offence on bail except in cases where there appear reasonable grounds for believing that the person is guilty of an offence punishable with death or transportation for life. It is argued for the prosecution that the offence alleged to have been committed by the petitioner is of a grave and serious character punishable with transportation for life, that in the light of the evidence so far collected, the Magistrate has come to the reasonable belief that such an offence has been committed and refused to admit the petitioner to bail and that in such circumstances the High Court ought not to interfere with the discretion exercised by the Magistrate unless the order rejecting the bail is perverse or manifestly wrong. On the other hand, it is contended on behalf of the petitioner that no offence punishable with transportation for life has been committed and even so, the High Court has unfettered discretion under Section 498, Cr. P. C. to grant bail if the circumstances of the case permit, irrespective of the limitations imposed by Section 497 on the trial Magistrate.
4. The most important point for consideration is whether the High Court has extended powers under Section 498, Cr. P. C. The latter part of Section 493runs thus:
'......and the High Court or Court of Session may, in any case whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced.'
The powers of the High Court and the court of Session under Section 498 are of a concurrent jurisdiction with that of a Magistrate. It is seen on a comparison of Sections 497 and 498 that the High Court is invested with power under Section 498, Cr. P. C. as a Court of superior, appellate or revisional jurisdiction and has vast powers to direct that any person be admitted to bail in any case. From the wording of Section 498, Cr. P. C.:
'It is manifest that the discretion given to this Court and also to the Court of Session, is unrestricted in any way by the terms of the statute. Two things follow from this, firstly that the discretion is one which must be judicially exercised and secondly that the Court has power if it does grant bail to grant it on such conditions as the circumstances of the case and the public interest may require.' (Per Boys J. in --'Emperor v. H. L. Hutchinson : AIR1931All356 ).
5. It has been strenuously argued that the direction given by Section 498 is limited by or in practice limited by, the conditions found in Section 497 and there is some support for the proposition in reported decisions but the preponderance of authority appears to be in favour of the view that under Section 498 the High Court has unrestricted powers for directing bail in any case to any person. The discretion of the High Court is not limited to the consideration set out by Section 497 but that consideration is to be considered along with all the circumstances of the case. I am therefore of opinion that Section 498 is not controlled by Section 497 so as to preclude the consideration by the High Court of the other circumstances in order to entitle any person to bail. No reported decision of this Court, directly bearing on this point, was brought to my notice but two unreported decisions were cited by the learned Advocate-General as supporting the proposition that Section 498 is controlled by Section 497. I am inclined to think that those cases do not support that view. In -- 'Cr. Petns. Nos. 7 and 13 of 1951-52 (B)', the learned Judge observed that
'the High Court is bound to follow the general law as a rule and not depart from it except under special circumstances, especially so in the initial stages of a case; see -- 'Boudville, H. M. v. Ernperor', AIR 1925 Rang 129 (C).'
In other petition -- 'Crl. Petn. No. 121 of 1951-52 (D)' where the argument that the High Court has extended powers was advanced at the Bar his Lordship Vasudevamurthy J. observed that:
'While it may be that this Court has under Section 498, Cr. F. C. some such larger powers, I am not prepared to say that in the present case there are any special grounds for so enlarging the petitioner on bail.'
It is seen that these decisions do recognise the extended powers of the High Court in the matter of granting bail under Section 498, but such powers should be exercised only where there are special grounds or exceptional circumstances. The general trend of opinion as expressed in the several decisions of the High Courts in India is also the same. Thus in -- 'AIR 1931 All. 356 (A)' Mukerji J. observed:
'The High Court's power of granting bail is conferred on it by Section 498 and is entirely unfettered by any conditions.'
Boys J. the other Judge constituting the Bench in the same case observed that:
'the Legislature has given the High Court and the Court of Session discretion (to act under Section 497) unfettered by any limitation other than that which controls all discretionary powers vested in a Judge viz., that the discretion must be exercised judicially.'
6. A later Full Bench decision of the same Court reported in -- 'Joglekar, K. N. v. Emperor : AIR1931All504 has in fact approved and reiterated the opinion of the Division Bench; Sir Sulaiman Ag. C. J., Young and King JJ. held that:
'Section 498, Cr. P. C. gives an unfettered discretion to the High Court or the Court of Session to admit an accused person on bail. It is a mistake to imagine that Section 498 is controlled by the limitations of Section 497 except when there are not reasonable grounds for believing that the accused committed the offence, or there are reasonable grounds for believing that he is not guilty, in which cases it becomes a duty to release him. Magistrates can proceed under Section 497 only and their discretion is regulated by the provisions of that section; but Section 493 confers upon a Sessions Judge or the High Court wide powers to grant bail which are not handicapped by the restrictions in the preceding section. The discretion is unfettered, but of course it cannot be exercised arbitrarily but must be exercised judicially. There is no hard and fast rule and no inflexible principle governing such discretion. The only principle that is established is that there should be a judicial exercise of that discretion. It is not any one single circumstance which necessarily concludes the decision, but it is the cumulative effect of all the combined circumstances that must weigh with the Court. The considerations are too numerous to be classified or catalogued exhaustively.'
This, if I may say so with great respect, is a correct statement of the present position of the law on the point. This decision has been followed by a recent case of the High Court of Madhya Bharat reported in -- 'Vasant v. State', AIR 1951 Madh-B. 104 (P), Rege J. observed that:
'The wide powers conferred by Section 498, Cr. P. C. are not intended to be exercised in an arbitrary manner, but judicially and so as not to make a violent departure from the provisions of Section 497 of the Code. This, I may add with respect is the 'ratio decidendi' of decisions of High Courts In India of which I would refer to --'Joglekar, K. N. v. Emperor : AIR1931All504 ; -- 'Keshav Vasudeo v. Emperor', AIR 1933 Bom 492 (G); -- 'Ashraf Ali v. Emperor', AIR 1915 Cal 784 (H); -- 'Boudville, H. M. v. Emperor', AIR 1925 Rang 129 (C). Section 498 as I look at it provides for cases in which considerations other than the gravity of the case make it expedient that this accused should have freedom during the trial.'
7. A substantially similar view was taken by Thomas C. J, in -- 'Emperor v. Abhairaj Kunwar in connection with an application for bail in a case where the offence was under Section 307, I. P. C., as in the present case. The learned Judge held that
'under Section 498 the High Court has power to release a person on bail in any case, that is to say the power in granting bail in non-bailable offence is unrestricted, but that power has to be used judicially and not in an arbitrary manner.'
The High Court of Lahore in -- 'Emperor v. Krishnagopal', AIR 1933 Lah 925 (J) has followed the Full Bench decision of Allahabad cited above and expressed that
'under Section 498, Cr. P. C. the High Court and theCourt of Session have an unfettered discretionin the matter of granting bail, but the discretionmust be exercised judicially and not arbitrarilyand that in the exercise of the powers underthat section the limitations imposed by Section 497on the power of other authorities to grant bailshould ordinarily be taken into consideration.'
A similar interpretation has been put in a recentcase of Patna High Court reported in -- 'SagriBhagat State of Bihar', : AIR1951Pat497 (K). Atpage 500 the learned Judge observed thus:
'Lastly I must point out that Section 498, Cr. P. C,under which a High Court passes an orderfor bail has given an unfettered discretion tothe High Court or the Court of Session to admitan accused person to bail and as was pointedout by a F. B. of the High Court in -- 'AIR 1931All 504 (FB) (E)'.'
8. I shall now proceed to examine some of the decisions which have been cited in favour of the view that the powers under Section 498, Cr. P. C. are limited and controlled by the conditions laid down by Section 497. In -- 'AIR 1915 Cal 784 (H)' it was held that:
'We think that the rule laid down in Section 497 for the guidance of Courts other than the High Court is a rule founded upon justice and equity and one which should be followed by us as well as by every other Court unless anything appears to the contrary. The extended powers given to the High Court under Section 498 are certainly not, to be used to get rid of this very reasonable and proper provision of the law.'
9. This case is followed by -- 'Gul v. Emperor', AIR 1928 Sind 142 (L), in which the learned Judges lay down that
'both on principle and authority Section 498 must be interpreted as being controlled by the provisions of Section 497; -- 'Emperor T. Sowrindra Mohan', 37Cal 412 (M) and -- 'AIR 1915 Cal 784 (H)' followed.'
10. It is seen that the extended powers vested in the High Court under Section 498 is recognised by the Calcutta case which is followed by the High Court of Sind. These cases do not very much further the view advanced by the prosecution. Duckworth J. in -- 'AIR 1925 Rang 129 (C)' held thus:
'but a High Court is not limited within the bounds of Section 497 and it has absolute discretion in the matter. As however, the Legislature has placed the initial stage of dealing with crimes with Magistrates and having, in effect, enacted that persons accused of non-bailable offences shall be detained in custody except when there are, in the opinion of the Magistrate dealing with the case, no reasonable grounds for believing that the accused has committed the offence charged against him, a High Court is bound to follow the general law as a rule and not to depart from it except under very special circumstances especially so in the initial stages of a case.'
It may be mentioned in passing that this case has been noticed in one of the unreported cases of this Court referred to above. The question Sub-sequently came up for decision before the Full Bench of the same Court -- 'Emperor v. Nga San, Htwa', AIR 1927 Rang 205 (FB) (N), which reads thus:
'With regard to the decision in -- 'AIR 1925 Rang 129 (C)' while I agree that the learned Judge exercised his discretion properly in that case, certain of his dicta are not happily worded. I do not think that the amended Section 497 limits the powers of Magistrates in granting bail in case of non-bailable offences except in cases punishable with transportation for life or with death.'
The learned Judge goes on to say:
'But a High Court is not limited within the bounds of that Section 497. It has absolute discretion in the maker.' This, of course, is quite accurate. That absolute discretion is given by Section 498. In the subsequent passage the learned Judge states:
'A High court is bound to follow the general law as a rule'. The word 'bound' is not happy and would seem to negative the absolute discretion given by Section 498. The more accurate method of stating the principle seems to be this. Though the discretion is absolute the High Court must exercise it judicially, and since the Legislature has chosen to entrust the initial stage of dealing with questions of bait to Magistrates and while giving Magistrates an unfettered discretion of granting of bail in all cases except two classes, i.e., cases punishable with death and cases punishable with transportation for life, the High Court ought not to grant bail in such cases except for exceptional and very special reasons.'
11. The same question and substantially in the same form came up for decision before the Bombay High Court reported in -- 'AIR 1933 Bom 492 (G) where Broomfield and Divatia JJ. held:
'Having regard to Section 498 it is_ clear that the power of the Sessions Judge like the power of the High Court, is unlimited and not fettered, as the discretion of the Magistrate is by the provisions of Sub-section (i), Section 497 except of course in this case that the Sessions Judge like the High Court will naturally not grant bail in a case which comes under the clause in Question unless there are some good grounds for doing so.'
12. It is thus seen that the earlier view of the single Judge has been modified and the generalview of the majority has been accepted. The principles deducible from a consideration of these decisions are that under Section 493 the High Court and the Court of Session are vested with extended jurisdiction and that such extended jurisdiction should only be used in exceptional circumstances. I therefore hold that the High Court has unfettered discretion under Section 498 and is not precluded from taking special circumstances into consideration for granting bail regard being had to the rule of general law under Section 497, Cr. P. C.
13. The grant or refusal of bail depends upon the particular circumstances of each case. The mere fact that an offence is punishable by transportation for life is not by itself sufficient to refuse bail under Section 498. There is abundant authority for the view that even in cases punishable with death or transportation for life Courts have granted bail in view of the special circumstances in those cases. To illustrate from the cases considered herein bail is granted for offences under Section 121-A in -- : AIR1931All356 and -- : AIR1931All504 ; so also for an alleged offence under Sections 307 and 302 read with Section 109, I. P. C. in -- ' and -- 'AIR 1933 Lah 925 (J) respectively. In 'AIR 1933 Bom 492 (G)' the offence was under Section 409 and bail was granted. All these cases at any rate are punishable with transportation for life.
14. Considering the circumstances of the present case I am of opinion that there exist special circumstances which make it just and proper to release the accused on bail. On behalf of the petitioner an affidavit has been filed countersigned by the father of the petitioner who is a responsible officer in Government service (but who happens to be at present disabled by an accident and undergoing treatment as an in patient in the hospital) and in that affidavit it is affirmed that the petitioner is mentally very much depressed showing tendencies to commit suicide and otherwise subject to delusions, that the petitioner was under the treatment of one Dr. K. Subba Rao in December 1951 and was later obtaining prescriptions from the Victoria Hospital and that he still continues to be in a depressed state of health requiring treatment. Dr. Subba Rao referred to therein has issued a certificate to the effect that he was treating the petitioner for neurasthenia associated with mental delusions and a suicidal frame of mind. The doctor must be presumed to be a disinterested person, interested only with the health of his patient; his certificate is therefore entitled to some weight. As against this, the Investigating officer in an affidavit filed by him avers that the story of sickness is merely an afterthought and that the petitioner pleaded unsoundness of mind only in his, second petition for bail and this fact presumably 'may go to indicate that the sickness is a mere fake and set up to concoct false defence. I am not inclined to express any opinion on the merits of the case nor about the alleged sickness. The affidavit on behalf of the petitioner supported by the Doctor's certificate indicates prima facie that the petitioner is sick and in a bad state of health. The trial Magistrate at the conclusion of his order has stated that
'the police will be instructed to afford all medical facilities to the accused till he is produced before Court on 31-3-52.'
The prosecution frankly admitted that they have neither got the petitioner examined by a Doctor nor afforded any facility for his treatment, the explanation being that in the opinion of the Investigating Officer the petitioner is not apparently sick. It is rather difficult to proffer the diagnosis of the Investigating Officer to the certificate of qualified doctor. To a suggestion by the Court that the prosecution may arrange at the cost of the petitioner to get him examined by an expert doctor, and if need be, to admit him into the Mental Hospital the prosecution expressed its unwillingness to do so. If a person is sick and is suffering from neurasthenia, associated with mental delusion as the certificate of the Doctor testifies, I think it is but just and reasonable to afford facilities for treatment by enlarging him on bail. It is stated that the investigation is now complete and consequently no question of any danger of the evidence of the prosecution being tampered with arises.
15. In the affidavit filed by the Investigating Officer two objections are raised viz. that it is apprehended that if the petitioner is released on bail he is likely to get up a false defence in his favour and that the petition will escape the ends of justice by not attending the Court and making himself scarce. If it is intended that the petitioner should be locked up so as to hamper in his defence I am unable to subscribe to that view. The policy of law is to grant bail rather than refuse it in cases of under-trial prisoners and the Court should be lenient till they are convicted. It is the glorious principle of criminal justice that a man is considered to be innocent till he is found guilty & when he is accused of an offence he must have freedom to defend himself. I am supported in this view by the observations of Mukherji J. in the case reported in -- : AIR1931All356 '. The learned Judge states thus:
'The principle to be deduced from Sections 496 and 497 is that grant of bail is the rule and refusal is the exception. An accused person is presumed under law to be innocent till his guilt is proved. As a presumably innocent person he is entitled to every freedom and every opportunity to look after his case. An accused person if he enjoys freedom will be in a much better position to look after his case and to properly defend himself than if he were in custody.'
The next objection that the petitioner will escape the ends of justice by not attending to the Court and making himself scarce is really an important one. The only legitimate purpose to be served by keeping a person under trial in detention is to secure attendance at the trial. The circumstances as gathered from the affidavits in this case are that the petitioner is a Law Graduate and an Advocate; his father is one of the Deputy Commissioners in the State service and that the petitioner is willing to furnish adequate security to appear whenever called upon. It appears to me that in the circumstances there are no reasonable grounds for apprehension of the prosecution that the petitioner is likely to abscond or otherwise make himself scarce.
16. What remains for consideration is regarding the terms of security upon which the petitioner may be enlarged. Taking all the aspects of the case into consideration I direct that the petitioner shall furnish two sureties for Rs. 10,000/- (ten thousand) each and in addition execute a personal bond for a like sum to the satisfaction of the trial Court. The special circumstances existing in this case as can be gathered from the affidavits and other papers filed do Justify the petitioner to be released on bail at present and I order accordingly on the terms indicated, above. It must of course be specifically understood that the principal ground upon which the bail is granted is the consideration of health and when the deterioration of health vanishes and the petitioner regains his normal state, nothing prevents the prosecution from applying for the cancellation of the bail if such a step is deemed necessary in the interests of justice.
17. Order accordingly.