A.H. Khan, J.
1. This is an application which is moved by the learned Government Advocate, for cancellation of a bail granted to the accused by the District Magistrate, Mandsaur, on 5th July 19S1, on the ground that the learned District Magistrate granted an anticipatory bail which is not warranted by law.
2. Mr. Karanjkar counsel for the non-applicants has filed a copy of an order of the Sessions Judge, Mandsaur, dated 2.11.51 which shows that both the non-applicants wore released on bail after their appearance before the Sessions Judge. In view of this later order, it is argued that this application loses much of its force. But the point being one of general importance, I may state that in case No. 10-11 of 2003, Criminal Provision Judicial Committee, Huzar Darbar Gwalior, reported in the Gwalior Law Reporter 340 of 2003, June 1947, I had occasion to consider the proposition of an anticipatory bail and, after giving my reasons in, detail, I came to the conclusion that it could be granted. I adhere to the same view and do not consider that the order of the District Magistrate Mandsaur, can be challenged on the mere ground that he granted the bail before the actual arrest of the accused.
3. It seems that the learned Government Advocate requested the Hon'ble the Chief Justice (Mr. P.K. Kaul) now retired, to refer this question for the consideration of a Full Bench. But he did not do so, and, I am inclined to think that he agreed with my views on the subject and in consequence considered it futile to refer it to a Full Bench, as requested by the learned Government Advocate.
4. I would like to refer to some of the considerations that prevailed with me, and, in so doing, I must recapitulate the reasons that led me to hold the view I did.
5. The entire question in fact turns upon the meaning of the word 'appears', occurring in Sections 496 and 497, Criminal P.C. under chap. 39, which deals principally with provisions relating to bail. These sections envisage four ways in which an accused comes before the Court and asks for a bail. The first is when tin accused is arrested, the second when ho is detained without warrant by Police, the third is when he is otherwise brought before the Court, and the fourth is when he 'appears.' The three earlier ways present no difficulty; it is the last that requires elucidation.
6. Now does the word 'appear' mean that the accused should be present in the Court personally, or, does it admit of appearance through a counsel? That the word 'appear' is susceptible of both constructions is beyond the pale of controversy. My contention is that wherever in the Criminal Procedure Code, the personal appearance of the accused is implied, the expression used is 'personal attendance,' which occurs in Sections 205 and 853, Criminal P.C. This difference in phraseology furnishes a guide and clue as to which of the two meanings is more apt.
7. It is sometimes said that a bail without personal appearance before the Court is unthinkable. That is a dogmatic assertion. A little reflection is needed and we find that under a bailable warrant, the accused is never brought before the Court and is let off on bail without making his personal appearance before the Court.
8. Section 497, Criminal P.C. underwent an amendment by Section 136, Criminal P.C. Amendment Act, 1923 (XVIII  of 1923) and though the change did not affect the word 'appears', yet the amendment as a whole was regarded as the result of a liberalizing influence on the policy of the Legislature, and the effect is that the discretion of the Courts has become less fettered than before: In the -matter of Nagendra Nath, 51 Cal. 402 at p. 417.
9. In pursuance of this liberalised policy of law, and also having regard to the present democratic set-up under the Constitution and its humane spirit, as distinguished from the beauro-cratic system that prevailed before, let us pause and consider one aspect of the matter, which may conclusively settle the question. Those who have long experience of the law and the Law Courts realise that there are cases (however few and far between they may be) when the Police under the colour of its duty directs its energies towards harassment and persecution of a person, who ought to have been left alone.
In such cases whatever the result may be (the person may be eventually discharged or acquitted) but the Police in the meantime does cause him indignity and hardship which cannot be adequately described. And it may be that a good and respectable citizen is the object of this attention. If in such circumstances, or others like it, a person were to approach the Court, I conceive no harm if an anticipatory bail is allowed. In such cases, the attitude of the accused is that he avoids arrest and goes in hiding. The Police in such circumstances cannot arrest him. Now if the accused has confidence in the Court, he applies for bail and says:
Sir I have no faith in the Police; they are against me. But I have every confidence in the Court and I want to vindicate my honour. But the Police went to dash me to the ground.
It is a known fact that once a man is in a Police lock-up, his subsequent acquittal does not make amends for the indignity suffered by him.
10. I may be pardoned for venturing to remark that the practice of anticipatory bail came to he established in Gwalior State with a population of 40 lacs, in Sam vat 1888. It is now well-nigh a quarter of a century since it prevailed and during my 18 years' experience as a Judge of the High Court in Gwalior, I did not come across a single instance where there was any harm as a result of establishing this practice.
11. It goes without saying that an anticipatory bail, is applied for in very exceptional circumstances. Invariably the Police succeeds in arresting the 'wanted man'. But in a few cases when he evades arrest, it is then and then alone that an application for anticipatory bail is made.
12. The bail in anticipation merely affords more convenience to the public and, of course, if the accused were in any way to abuse the privilege the bail can always be cancelled, Thus I find that an anticipatory bail is not only in conformity with the liberalised policy of law, but is a measure which in no way obstructs the course of justice.
13. The learned Government Advocate has drawn my attention to the following cases: Emperor v. Abubakar Muhammed A.I.R. 1941 Sind 83, Mahomed Abbas v. The Crown A.I.R. 1950 sind 19, Amirchand v. The Crown A.I.R. 1950 E.p. 53 and Abdul Sattar v. The Crown A.I.R. 1949 Lah. 51.
In the first three cases, it has been held that no anticipatory bail can be granted, while in the fourth case, a contrary view has been adopted. I have gone through all these cases.
14. I find that in Emperor v. Abubakar Md. A.I.R. it 1941 Sind 83, Mahomed Abbas v. The Crown A.I.R. 1950 Sind 19 and Amirchand v. The Crown A.I.R. 1950 E.P. 53, the discussion has mainly centered round the point whether Section 498 has in any way enlarged the powers of the Sessions Court or the High Court so as to admit a person to bail, who has not been arrested. In Abdul State v. The Crown A.I.R. 1949 Lah. 51, I find support for my view, but my reasons are totally different from those that have been discussed in the ruling. In fact, no High Court has considered the meaning of the word 'appears' occurring in Section 497, Criminal P.C. and no arguments were addressed to their Lordships on the grounds that I have stated. Not only do I hold that the High Court has such powers, but I am also of the opinion that a Magistrate enjoys such powers too, and, can release a person on bail without his personal appearance before the Court. The reasons I have already stated in the earlier part of this judgment and it is unnecessary to cover the ground again. They have not been considered so far, let alone their being dissented from. Most of those rulings have referred to Jai Ram v. Emperor I.L.R. (1945) 26 Lab. 57, in which their Lordships of the Privy Council have been pleased to say that the High Court has no inherent powers, apart from those expressly given in the Criminal Procedure Code. In holding that an anticipatory bail can be granted, I have not sought any power from Section 561A, Criminal P.C. but I take my stand on the interpretation of the word 'appears' in Section 497 of the Code. All I say is that the language employed by the Legislature is both exact and comprehensive and it calls for a careful appreciation for its due interpretation.
15. it appears that one of the Judges in these rulings has realised the necessity of possessing such powers and Das C.J. in Amirchand v. The Crown A.I.R. 1950 E. p. 53 at p. 56 has observed:
I realise that some such power to grant anticipatory bail may be useful and even desirable, but the Court cannot arrogate to itself such power if the Legislature has not thought fit to give it to the Court.
This observation deplores the lack of such power, but I submit that the power is there; it has to be discovered.
16. In the end I venture to suggest that mere precedents are not by themselves a sufficient guide, the wordings of the sections are to be examined with thoroughness and, if on a reasonable construction, a more desirable and equitable view can be taken, I submit that it should be taken and mere technicalities should not be allowed to prevail. In the view that I have taken, no question of interpreting the word 'bail' arises. The section referred to says that if an accused person appears, then the Court may if it thinks proper grant a bail. The question of his arrest or any restraint which he may be under, does not at all arise.
17. There are two cases which lend support to the conclusion I have ventured to arrive at. One is of Khwaja Nazir Ahmed Cri. Misc. No. 592 of 1942 (Lah.) in which Young C.J. of Lahore High Court, as far back as 1943 granted an anticipatory bail. And the other case is reported In re Johur Mull, 10 cal. W.N. 1093 in which Mitra J. of Calcutta took a similar view. The latter ease is a Division Bench decision.
18. For reasons stated above, the application is rejected.