1. Applications for bail were put up before the two subordinate Courts, one of the Magistrate and one of the Judge, and neither appears to have realized what kind of an inquiry was necessary in the matter. The Magistrate had jurisdiction to grant bail under Section 497(1). Reasons given by him are such as would necessitate severe punishment in case of conviction, but are not reasons for a refusal to grant bail. It may happen that there may be likelihood of an offender absconding in case of bail, or of his terrorizing prosecution witnesses. That would be a reason for using discretion against him in refusing to grant him bail. Another reason may be that he may commit a similar or any other serious offence while on bail. No such reason is given by the Magistrate. When the matter went up before the Sessions Judge the reason given by him which looks like a reason of want of jurisdiction, must be due to want of reference to the law on the subject at the time of passing the order. The applicants are in the lock-up and under arrest. It is a mistake of the Judge to believe that his jurisdiction arises only when accused persons are put up before a Court. This excuse even is not technically correct because the applicants did appear before the Court of Magistrate who refused to grant bail. Under Section 496 bail may be granted to any person who is arrested or detained without a warrant by an officer-in-charge of a police Station, or appears or is brought before a Court. In the present case the applicants have appeared before a Court and also have been arrested.
2. The proviso in this section that bail can be granted only to a person other than a person accused of a non-bailable offence is not applicable to the Court of session acting under Section 498, Criminal P.C. This Court being far away is not in a position to appreciate the circumstances of the case and to discover whether the applicants may or may not be released on bail without fear of their absconding, or terrorizing prosecution witnesses, or committing a similar or any other offence while on bail. The proper order for me to pass, therefore, will be what I propose to pass. I set aside the order of the Sessions Judge dated 8th April and direct him to reconsider the application for bail according to law and the instructions given in this order. A copy of this order shall be sent to the Sessions Judge.