(1) An important question whether the Court has power to grant what is called 'anticipatory bail' arises for consideration in this revision case.
(2) The Tahsildar, Bhalki, lodged a complaint on 23-1-1964 with the police at Dhanura that while the Patwari of Malchapur was collecting revenue, the respondents before this Court, abused the Patwari and assaulted him with shoes and thereby obstructed the public servant from discharging his duties. The police registered a case against the respondents under S. 353 I.P.C. and sent the first information report to the Magistrate.
(3) Fearing that they might be arrested by the police, the respondents appeard before the Firs Class Magistrate, Bhalki, on 20-3-1964 and made an application praying that they might be released on bail. This application appears to have been opposed by the Prosecutor. The learned Magistrate passed an order on the same day as follows:
'Accused persons are released on Bail on their executing P and S bonds in the sum of Rs. 500 each. The concerned police be informed. The accused persons should appear before police. Dharwar for investigation as and when they are called.'
(4) Against this order the state filed a revision petition Cri. Rev. Ptn. 20/6 of 1964 before the sessions Judge, Bidar. After examining the records and hearing the counsel for state and the accused, the learned Sessions Judge felt that the learned Magistrate had no power to grant bail when the accused had not been arrested nor had any warrant been issued for their arrest. the learned Sessions Judge has made a reference to this Court under S. 438 Cr.P.C. recommending that the said order of the Magistrate might be set aside.
(5) The complaint against the respondents was for an offence punishable under S. 353 I.P.C. According to the table in Schedule II to the Code of Criminal Procedure, this offence is a cognizable and also bailable offence Grant of bail for a bailable offence is governed by Section 496 Cr.P.C. the relevant portion of which reads as follows:
496. In what case bail to be taken.-when any person other than a person accused of a non bailable offence is arrested or detained without warrant by an officer in charge of a police Station, or appears or is brought before a Court and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail.......
(The two provisos are not relevant for the present purpose.)
(6) An analysis of the main part of the section makes it clear that on satisfying the following three conditions, namely,
(a) The person has been accused of a bailable offence;
(b) Such person has been arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court;
and (c) He is prepared to give bail; such person shall be released on bail.
If these three conditions are satisfied, bail is a matter of right of the accused and not of discretion of the Court.
(7) If a complainant or a police report of a bailable offence is made against a person or he is suspected of having committed such an offence he will be a person accused of a bailable offence. This condition is satisfied in the present case, because the Tahsildar had filed a complaint against the respondent for an offence under Section 353 I.P.C.
(8) The respondents had not been arrested nor detained without a warrant by the police nor were they brought before Court. But they themselves appeared voluntarily before Court and made the application for grant of bail.
(9) There is some divergence of opinion at to the interpretation of the word 'appears' occurring in Section 496 Cr.P.C. One view is that the word 'appears' in the context of this section, means appearance is obedience to a summons or bailable warrant or in pursuance of an undertaking to appear contained in a bond executed by a person when he is arrested and released by the police; the word does not refer to voluntary appearance of the accused to whom no summons or warrant has been issued or who has not undertaken so to appear. The other view is, that a word 'appear' is wide enough to include voluntary appearance of a person accused of an offence even where no summons or warrant has been issued against him. But it is unnecessary for the purpose of the present case to go into this controversy. I shall proceed on the assumption that the word 'appear' includes voluntary appearance of the accused even in the absence of any summons or warrant. In that sense the respondent in the present case undoubtedly appeared, in person, before the Magistrate when they made the application for bail. The respondents-accused have also executed personal and security bonds as directed by the Magistrate.
(10) The learned counsel for the respondents contended that as the respondents had satisfied all the above three conditions, the respondents were entitled to be released on bail by the Magistrate and that the learned Magistrate was justified in releasing them on bail.
(11) In order to find out whether the respondents have satisfied these three conditions and could be granted bail, it is necessary to examine the meaning and implication of the words 'bail' and 'released' on bail'.
(12) The preponderance of judicial opinion, is that the words, 'bail' and 'released on bail' imply the accused being already in restricted. In Amir Chand v. The Crown, AIR 1950 EP 53 (FB), Khosla, J., who delivered the leading opinion of the Full Bench, referred to the meaning of the word 'bail' as given in Several Dictionaries. One of the meanings given in the New Oxford Dictionary is 'temporary delivery' or 'release from prison'. Whartons' Law Lexicon explains 'bail' as '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 handle 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.
(13) Stroud's Judicial Dictionary explains 'bail' as follows:
'Baile, is when a man is taken or arrested for felony, suspicion of felony, indicted for felony or any such case, so that he is restrained of his liberty. And being by law baileable offered surety to those which have authority to baile him, which sureties are bound for him to the Kings use in a certain summer of money, or body for body, that he shall appeared before the justices of Gaole delivery at the next Sessions, etc.'
(14) As pointed out by Dixit, C.J., in state of Madh Pra v. Narayan Prasad, AIR 1953 Madh Pra 276 the word 'bail' has been similarly defined in Tomlins' Law Dictionary and Earl Jowitt's Dictionary of England Law.
(15) As observed by Khosla, J., in AIR 1950 EP 53 (FB) releasing an accused on bail means releasing him from custody or prison and delivering him into the hands of sureties. Therefore, the concept of bail implies a form of previous restraint.
(16) As observed by Chandra Reddy, C.J. in Public Prosecutor v. Manikya Rao, : AIR1959AP639 the power to grant bail does not envisage the grant of bail to a person who is under no restraint. A person, who is under no previous restraint, does not need any order of bail as he is free to go anywhere he likes.
(17) On this line of reasoning, the Full Bench of the East Punjab High Court opined in AIR 1950 EP 53 (FB) that bail cannot be granted to a person who has not been arrested and for whose arrest no warrants had been issued. This view has been followed by most other High Courts, Vide, the state v. Hasan Mohammad, AIR 1951 Nag 471; Muzafaruddin v. state of Hyderabad, AIR 1953 Pepsu 146; state of Uttar Pradesh v. Kailash, : AIR1955All98 ; : AIR1959AP639 and : AIR1963MP276 .
(18)In Juhar Mal v. State, Wanchoo, C.J., while agreeing with the view taken by the Full Bench of the East Punjab High Court in AIR 1950 EP 53 (FB) added that bail can also be granted when an officer-in-charge of a police station manifests his intention to arrest an accused without a warrant by delivering to the officer required to make the arrest, an order in writing under S. 56, Cr.P.C.
(19) But Mr. Jagannatha Shetty, the learned counsel for the respondent, has commended for acceptance the contrary view taken by the Full Bench of the Lahore High Court in Hidayat Ullah v. The Crown, AIR 1949 Lah 77 (FB) and the view taken by Khan, J., in state v. Mangilal, AIR 1952 Madh Bha 161 and in Abdul Karim Khan v. state of M.P., : AIR1960MP54 .
(20) In AIR 1949 Lah 77(FB) the power of the High Court to grant bail to a person suspected of an offence in anticipation of his arrest, came up for consideration. Cornelius, J., who delivered the opinion of the Full Bench, attached great significance to the difference between the language of S. 498, Cr.P.C., on the one hand and that of Ss. 496 and 497 on the other. His Lordships pointed out that while the words used in Ss. 496 and 497 are 'released on bail' the corresponding words in S. 498 are 'direct that any person be admitted to bail'. His Lordships stated that he power of the High Court to direct that any person be admitted to bail, extends not only to grant bail to persons who are in custody of the High Court or an inferior Court or a police officer, but also includes a power to give directions that persons should be admitted to bail who are not in custody. His Lordships further observed that there is no ground for supposing that the power of the High Court under S. 498 would not extend to making an order to the police officer to admit on bail a person against whom information had been laid before the police that he is guilty of non bailable offence even though such person may not have arrested or there was no warrant of arrest against him.
(21) The Full Bench of the Lahore High Court was not considering the scope of S. 496 Cr.P.C. Even as regards the scope of S. 498 Cr.P.C., the view of this Full Bench has been dissented from by the High Court of the East Punjab High Court in AIR 1950 EP 53 (FB) in which their Lordships have given elaborate reasons for not accepting the said view of the Lahore High Court. I am in respectful agreement with the reasonable in AIR 1950 EP 53(FB).
(22) In Wanchoo, C.J., has pointed out that the view taken by the Full Bench of the Lahore High Court would lead to the following anamolous result. When an accused who is not under arrest and against whom no warrant for arrest has been issued, is granted anticipatory bail, his position may be worse off and he may lose his freedom and may be taken into custody, if he is unable to furnish security in terms of the order granting bail or if the sureties want to be discharged and he is unable to find fresh sureties.
(23) In the two judgments of Khan J., in AIR 1952 Madh Bha 161 and in : AIR1960MP54 , I do not find any reason beyond those contained in the opinion of the Full Bench of Lahore High Court, to support the conclusion of his Lordships. I think the view taken by the majority of the High Courts should be preferred to the view taken by the Full Bench of the Lahore High Court and Khan J., in the aforesaid two decisions.
(24) Mr. Jagannath Setty contended that when a person has been accused of a cognizable offence, the possibility or the threat of the police arresting him will always be hanging over his head and such possibility or threat would itself be a sufficient restraint in order to enable the Court to grant bail and release him from such restraint. In support of this contention, Mr. Jagannath Setty relied on the following observations of a bench of the Hyderabad High Court in Sunder Singh v. State, AIR 1954 Hyd 55.
'The Criminal Procedure Code authorises the officer-in-charge of the police station to arrest the accused without a warrant in a non bailable offence............ It cannot be said, therefore, that the accused is not without restraint. The threat and the power of the officer-in-charge of investigation of arresting the accused is always hanging on his head. That is a sufficient restraint, in our opinion, for the purposes of this section. (S. 497 Cr.P.C.).'
(25) These observations were considered by Wanchoo, C. J., in and by Chandra Reddy, C.J., in : AIR1959AP639 who expressed their dissent. It is difficult to see how a mere threat or possibility of an accused person being arrested could amount to a restraint on him. Until he is so arrested, he is free to move about as he likes. On investigation the police may find that there is not sufficient reason to arrest him; or on interrogation he may be able to give satisfactory explanation which may convince the police that there is no reasonable material to proceed against him. With all respect to their Lordships who decided AIR 1954 Hyd 55 I am unable to agree that a mere threat or possibility of arrest would be a restraint, for the purpose of granting bail.
(26) In the present case, as the respondents had not been arrested nor was any warrant issued for their arrest, nor was there any order issued by any police officer under S. 56 Cr.P.C., for their arrest the learned Magistrate could not grant bail merely in anticipation of any such action against them.
(27) In the result, this reference is accepted, and the order of the Magistrate granting bail to the accused, is hereby set aside. The bail bonds stand cancelled.
(28) But, nothing stated in this order shall be construed as precluding the accused from moving the Magistrate for bail, if necessary, at the appropriate stage.
(29) Reference accepted.