P. Chandra Reddy, C.J.
1. This application for cancellation of the Bail granted to the respondent by the Sessions Court, Nalgonda, raises an important and interesting question as to the power of the High Court to grant bail to a person, who was not arrested on any charge of non-bailable offence, or for whose apprehension a warrant has not been issued or who has not surrendered himself in Court but merely apprehends that he might be arrested.
2. The respondent, along with nine others, was charge-sheeted under Section 302, I.P.C., for having beaten to death one Raj Narsi Reddi on 9-10-1958. No warrant was issued for the arrest of the respondent notwithstanding the filing of a provisional charge-sheet. Meanwhile, the wife of the respondent moved the MUNsiff-Magistrate, Suryapet, to enlarge him on bail alleging that he was sick. This was dismissed by the Magistrate as he thought that the accused was not so seriously sick as to be unable to attend Court.
Shortly thereafter, an application was filed before the Sessions Judge for the same relief on the same grounds with this addition that the Police were after the respondent. The Sessions Judge directed the release of the respondent overruling the objection of the Public Prosecutor that the accused could not be released on bail since he was neither arrested nor had he appeared in Court as contemplated by Section 497, Cr. P. C., as he felt bound by a ruling of the erstwhile Hyderabad High Court in Muzafaruddin Mohammad v. State of Hyderabad, AIR 1953 Hyd 219 (FB) and Sunder Singh v. The State, AIR 1954 Hyd 55. which followed the FullBench. It is this order that is sought to be cancelled now.
3. In support of this petition, it is urged by the Public Prosecutor that the Sessions Court had no power to grant what may be called anticipatory bail. The answer of the counsel for the respondent to this is that the conditions envisaged in Section 497, Cr.P.C., had been fulfilled in that the respondent appeared through counsel in Court or that, at any ate, the Sessions Court, acting under Section 498, had ample powers to release the accused on bail even if he was not apprehended.
4. As the controversy revolves round Ss. 497 and 498, Cr. P.C., it is convenient to read those two sections here so far as they are material for this enquiry.
'SECTION 497 : (1) When any person accused of or suspected of the commission of any 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, he may be released on bail but he shall not be released if there appear, reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.
Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.
SECTION 498 : (1) The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; 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 the police officer or Magistrate be reduced.'
We propose to take up first the question whether Section 498, Cr. P.C., authorises the High Court or the, Sessions Court to admit a person to bail in anticipation of arrest. Diverse views have been expressed on this question and we will deal with them presently. We will first fry to interpret the section on its language. The contention that such power exists is based upon the expressions 'may, in any case,' and 'direct that any person be admitted to bail' occurring in Section 498.
The pertinent question is whether these words confer authority on either the Sessions Court or the High Court to bail out an accused irrespective of the conditions envisaged in Section 497, Cr. P.C. In our opinion, these expressions do not enlarge the powers of the Court in the matter of granting bail. They only indicate that any accused person could avail himself of that section, whether the case in which he is involved is appealable on conviction or not. The words 'any person' have only similar connotation.
The words 'in any case,' govern only the language following namely 'whether there be an appeal on conviction or not'. They do not establish that any independent power is vested in the Sessions Court or the High Court and do not extend the scope of the jurisdiction of the Courts in that he half. If the High Court or the Sessions Court has jurisdiction to grant bail to any person, that power could be exercised even in regard to a convicted person because the argument proceeds on the footing that no restriction could be read into those words.
5. But the Privy Council in Tairam Das v. Emperor, AIR 1945 PC 94, negatived the authority of a High Court to grant bail to a person who was convicted and sentenced to imprisonment. Then Lordships laid down that Section 498 had no referenceto convicted persons and that Chapter XXXIX dealt only with the granting of bail to persons, who were not tried and convicted. It was said there that Section 496 and Section 497, Cr. P.C. provided for the granting of bail to accused persons before trial and that the other sections in that Chapter dealt with matters which were auxilliary or subsidiary to those two sections. This implies that Section 498, Cr. P.C., does not confer any extraordinary power not possessed by a Court while acting under Section 497, Cr. P.C.
As pointed out by their Lordships, Chapter XXXIX of the Code together with Section 428 contains a complete and exhaustive statement of the powers of a High Court in India to grant bail, and excludes the existence of any additional inherent power in a High Court relating to the subject of bail. In regard to the subject of granting of bail, it could not be postulated that the Legislature had intended to say something in Section 498 quite unrelated to the general tenor of Section 497, Cr. P.C. We do not think that the intendment of this section is to enable a Court to ignore the restrictions imposed by Sections 496 and 497.
6. Quite apart from that, the very conception of bail presupposes some kind of restraint. Etymologically the expression contemplates release from Custody or restraint. The Dictionary meaning of the word 'Bail' is 'to set free or liberate a person arrested or imprisoned on taking security for his appearance'. It implies release from restraint. Wharton's Law Lexicon explains 'bail' as 'to set at liberty a person arrested or imprisoned on security being taken.' Stroud's Judicial Dictionary explains bail as follows :
'Baile is when a man is taken or arrested for felony, suspicion of felony, indicted of felony or any such case, so that he is restrained of his liberty. And being by law bailable, offereth surety to those which have authority to baile him, which sureties, are bound for him to the Kings use in a certaine summe of money, or body for body, that ho shall appeare before the Justices of Goale-delivery, at the next Sessions etc.'
It is thus clear that 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. 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. The very purpose of Chapter XXXIX is to release an accused on whom some restraint is imposed. This is brought out especially by Section 500, Cr. P.C. which talks of a person being released after bonds have been executed. On these provisions there does not seem to be any scope for the grant of anticipatory bail to a person accused of a bailable or non-bailable offence. There is abundant authority in support of this proposition.
7. A Full Bench of the East Punjab High Court has discussed this matter at some length in Amir Chand v. The Crown, AIR 1950 EP 53 (FB) and reached the conclusion that Section 498, Cr. P.C., docs not empower the High Court or the Sessions Court to grant bail to a person, who was not put under some restraint by arrest or otherwise. The learned Judges disagreed with the view taken by a Full Bench of the Lahore High Court in Hidayat Ullah Khan v. The Crown, AIR 1949 Lab. 77 (FB), which held :
'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.'
The Lahore High Court thought that the expression 'release on bail' was not synonymous with 'admit to bail' and also that the Court acting under Section 498, Cr. P.C., had very wide powers because of the language 'in any case etc.' We have already indicated the scope and the ambit of the words 'in any case' etc. They have not got the effect which was attributed to them by the Lahore High Court. In our opinion, the Full Bench of the East Punjab High Court has rightly declined to follow AIR 1949 Lah 77 (FB) if we may say so with respect. The rulings of the Allahabad High Court cited in AIR 1950 EP 53, cannot be regarded as good law for the reasons stated by Khosla J., who delivered the leading opinion of the Full Bench and we are in entire agreement with the view expressed by the learned Judge therein.
8. This opinion is in consonance with, the decision of Division Bench of the Rajas than High Court in Juhar Mal v. The State, and State v. Dallu Punja, AIR 1954 Madh-Bha 113 (FB). To the same effect is the judgment of the Nagpur High Court in State v. Hasan Mohammad, AIR 1951 Nag 471. Recently, a Single Judge of the Allahabad High Court in State of Uttar Pradesh v. Kailash, (S) : AIR1955All98 ..... agreed with the view taken in AIR 1950 EP 53 (FB). The learned Judge remarked that the liability of a person to arrest is no restraint.
9. A Division Bench of the Calcutta High Court has also expressed the same opinion in Amjad Sheik v. The State, (S) : AIR1955Cal141 . The learned Judges thought that a High Court or a Court of Session while acting under Section 498, Cr. P.C. was clearly exercising the powers given by Sections 499 and 497. It is not necessary to multiply citations. Suffice it to say that the preponderance of judicial opinion is in favour of the principle enunciated by us.
10. We may point out here that the Hyderabad High Court in AIR 1953 Hyd 219 (FB) has not said anything contrary to this. Jaganmohan Reddy J. who spoke for the Full Bench has definitely stated :
'...... there can be no release without arrest, detention or some other form of restraint and for this reason the section makes provision for the release of a person arrested or otherwise restrained.'
In our judgment, under Section 498, Cr. P.C., the High Court or the Sessions Court does not derive any unrestricted power to grant bail to any accused person not Handicapped by the restrictions enumerated in Sections 496 and 497, Cr. P.C.
11. We are then thrown back upon Section 497, Cr. P.C. What is urged for the respondent is that the word 'appears' employed in Section 497 is susceptible of being interpreted as appearing by a Pleader. We do not think that the expression can bear that connotation. It can only mean, the physical appearance of the accused. The principle of the Criminal Procedure Code is that the accused must attend the Court in person except in certain cases specifically set out in the Code, such as Sections 205, 353 and 540-A. It is also to be recalled that the attendance of an accused in Court can be dispensed with only under the specific orders of Court. The words 'appears or is brought before a Court* involve the idea that the accused is produced before a Court or has surrendered himself in obedience to a process of Court. There is no basis for the supposition that the appearance of a lawyer is tantamount to the appearance of an accused without any warrant for the arrest of the accused being issued. This view of ours is re-inforced by AIR 1954 Madh-Bha 113 (FB).
12. In support of the opposite view, reliance is placed on AIR 1953 Hyd 219 (FB). There, a non-bailable warrant of arrest was issued. All that the learned Judges said there was that where a non-bailable warrant of arrest was issued and where the accused was physically incapable of coming to Court or being brought to Court except by exposing himself to danger to his life and disclosed the place or abode in which he was staying, the condition in which he was and the reason for his non-appearance personally, he might be deemed to have surrendered himself, being within the reach of the Court, if the Court on a consideration of the relevant circumstances thought that his personal appearance was not possible except by exposing his life to danger.
In such a situation, there was notional appearance of the accused; in other words, he hag placed himself at the disposal of the Court. The statement dealt only with an hypothetical case which is of rare occurrence. These observations can have no application to a case where the medical certificate merely disclosed that the accused required complete rest. We are not concerned with the correctness of these observations. In fact it was categorically remarked by the learned Judge that where a person against whom an arrest warrant was issued by the Court or who was ordered to be arrested was physically in a position to appear before the Court but did not so appear or surrender himself, he would not be entitled to bail.
13. The rule stated in AIR 1954 Hyd 55 that in non-bailable offences the threat and the power of the officer in charge of investigation of arresting the accused is a sufficient restraint for the purpose of Section 497 is not correct and it is opposed not only to the catena of decisions referred to above but even to AIR 1953 Hyd 219 (FB). On this discussion, it follows that a Court of Session or the High Court has no jurisdiction to make an order granting bail to an accused person except in the circumstances indicated in Section 497, Cr. P.C.
14. Sri Madhava Reddy, counsel for the respondent, pressed an argument upon us that this Court cannot cancel a bail granted by a Sessions Judge, since it is only the Court that granted bail that could cancel it and that, in any event, such a power could not be exercised in a case where cancellation is sought not because of anything that had transpired subsequently but on the ground that the original order was wrong. The Public Prosecutor tried to meet this by relying on Section 497(5).
It has been held by some of the High Courts that this sub-section can be invoked only in cases where bail was granted by inferior Courts. Some other Courts said that it was limited to a case of release under Section 497, Cr. P.C. and could not be extended to a case where the High Court or the Sessions Court itself had granted bail under Section 498, Cr. P.C. It is to remove all doubts in that behalf that the Legislature has added Sub-section (2) in the following words :
'A High Court or Court of Session may cause any person who has been admitted to bail under Sub-section (1) to be arrested and may commit him to custody.'
In this position, it is unnecessary for us to tackle the knotty problem whether Section 497 (5) enables the High Court to cancel the bail granted by a Sessions Court.
15. As pointed out, what was argued by Sri Madhava Reddy that, even under Section 498, Cr. P.C., it is only the Court that granted bail that could cause an accused, who was already released on bail to be arrested and be committed to custody and that too only when the accused was found to be abusing the privilege granted to him or for reason akin to it and not on account of the order being found to he erroneous, since a criminal Court has no power to review its own order.
Even assuming that the High Court has got power to direct an accused released by the Sessions Court to be arrested, that could only be when something new conies to light and not by way of review of the order of the Sessions Court which is not permissible in law. This is not without force. However, we do not want to go into this controversy as this Court has undoubted powers to cancel that order under Section 439, Cr. P.C. The High Court can act suo motu under Section 439 when it comes to its notice that an inferior Court had acted beyond its jurisdiction. We have already pointed out that the Sessions Judge was not competent to grant bail to person situated like the present accused.
16. It follows that the order granting bail should be vacated.