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State of Madhya Pradesh Vs. Narayan Prasad Jaiswal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 529 of 1962
Judge
Reported inAIR1963MP276; 1963CriLJ375; 1963MPLJ420
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 496, 497 and 498
AppellantState of Madhya Pradesh
RespondentNarayan Prasad Jaiswal
Appellant AdvocateK.K. Dube, Adv.
Respondent AdvocateR.S. Dabir, Adv.
Cases ReferredIn Mahadeolal v. Administrator General of W.B.
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - 500/- with one solvent security in the like amount' (sic). a copy of this order was- sent.....p.v. dixit, c.j.1. this reference arises out of a revision petition against an order dated 21st september 1962 of the additional district magistrate of seoni upholding an order of the first class magistrate, seoni, granting anticipatory bail to narayan prasad jaiswal in a case registered against him in respect of offences under sections 324, 452, 294, and 506 (second part) i.p.c. on a report made in seoni - poilce station by one komal singh on 19th july 1962.2. the report of komal singh was to the effect that a few days prior to 19th july 1962 he had accompanied the excise sub-inspector when he seized some liquor from a jeep-car of narayan prasad; and that on account of this narayan prasad bore a grudge against him and on 19th july 1962 caught hold of him in the mahakoshal garailthily.....
Judgment:

P.V. Dixit, C.J.

1. This reference arises out of a revision petition against an order dated 21st September 1962 of the Additional District Magistrate of Seoni upholding an order of the first class Magistrate, Seoni, granting anticipatory bail to Narayan Prasad Jaiswal in a case registered against him in respect of offences under Sections 324, 452, 294, and 506 (second part) I.P.C. on a report made in Seoni - Poilce Station by one Komal Singh on 19th July 1962.

2. The report of Komal Singh was to the effect that a few days prior to 19th July 1962 he had accompanied the Excise Sub-Inspector when he seized some liquor from a jeep-car of Narayan Prasad; and that on account of this Narayan Prasad bore a grudge against him and on 19th July 1962 caught hold of him in the Mahakoshal Garailthily abused him, attacked him with a dagger and alsothreatened to kill him. On 21st July 1962, Narayan Prasad presented an application before the Second Class Magistrate styling it as one 'in the matter of grant of amicipatory bail under Section 496 Cr. P. C.', stating therein that on a report made by Komal Singh a case has been registered against him by the Police under Section 324 and 452 I. P. C., that he was a respectable citizen of Seoni owning considerable property, that there was no danger of his absconding or leaving the jurisdiction of the Court, and praying that he be released on bail. Narayan Prasad appeared in person before the First Class Magistrate, Shri Arya, when the application was taken up for disposal after notice to the Police. The learned Magistrate perused the Police diary and observed that--

'It is evident from the case diary that the accused is suspected of the commission of an offence. At this stage it would be too premature to conclude for what particular offence the accused would be charge-sheeted. Hence at present I am to be guided by the matter as it stands at present. A consideration of the facts constituting the First Information Report is of paramount importance in ascertaining the nature of the offence alleged to have been committed by the accused and such consideration leads to the conclusion that the accused at present can at the most be said to be guilty of the offences falling within the ambit of Sections 324 and 294 I.P.C. Both these offences are bailable.'

He then overruled the objections made by the Police Prosecutor to the grant of bail and ordered that 'in the matter of the offence registered in the Station House, Seoni, as Crime No. 172 on the basis of the report of Komal Singh, the accused Narayan Prasad is granted ban of Rs. 500/- with one solvent security in the like amount' (sic). A copy of this order was- sent by the Magistrate to the Station House Officer, Seoni, for information. The State then preferred a revision petition in the Court of the Additional District Magistrate, Shri Acharya, contending that as a matter of law 'anticipatory bail' could not be granted to Narayan Prssad and even if it could be there were no valid grounds for enlarging Narayan Prasad on bail. The learned Additional District Magistrate rejected the revision petition taking the view that according to the decision in Abdul Karim Khan v. State of Madhya Pradesh, AIR 1960 Madh Pra 54 anticipatory bail could be grantees in suitable cases, and agreeing with the reasons given by Shri Arya, First Class Magistrate, for releasing Narayan Prasad on bail. Thereupon the State filed the revision petition giving rise to this reference.

When the revision petition first came up for hearing before our learned brother Naik J., he formed the opinion that on the question of anticipatory bail, which was of Sequent occurrence, conflicting views have been expressed by this Court in State v. Hasan Mohammad, AIR 1951 Nag 471 and AIR 1960 Madh Pra 54 and that it was, therefore, necessary and desirable that the question should be authoritatively determined by a Division Bench of this Court, In AIR 1951 Nag 471 Hemeon J. approved the decisions in Amir Chand v. The Crown, AIR 1950 EP 53 and Emperor v. Abubakar, AIR 1941 Sind 83 and held that Section 491 did not authorize the grant of bail by anticipation to persons who were not arrested or detained and that it could not be granted to a person who was at liberty and under no form of restraint whatever when he applied for enlargement on bail. In AIR 1960 Madh Pra 54 Khan J., following the reasoning which he had given in State v. Mangilal, AIR 1952 Madh-B 161 ruled that anticipatory bail could be granted to a person accused of or suspected of the commission of an offence on his appearance in Court in person or through a counsel. He distinguished the decision in AIR 1951 Nag 471 (supra) by pointing out that it was given before the Criminal Procedure Code was amended in 1956 and that the addition of the words 'or suspected of the commission' in Section 497 by the Criminal Procedure Code (Amendment) Act (No, 26 of 1955) had the effect of widening the powers of the Court in the matter of grant of bail and made it very clear that anticipatory bail could be granted to a person who had not been actually arrested and on whom no restraint of any hind had been put and who was merely suspected of the commission of any offence.

3. The question, which we are required to determine, has not been formulated in the order of reference, but it can be comprehensively stated thus--

'Whether under Sections 496, 497 and 498 Cr. P. C. bail can be granted to persons who have not yet been arrested for any actual charge of any offence or even on suspicion of their complicity in any offence but who apprehend that they would be arrested as persons accused of or suspected of the commission of an offence.'

It was on this question alone that arguments were addressed before us by the learned counsel appearing for Narayan Prasad and by the learned Government Advocate. The contention that was put forward on behalf of the State was that under none of the Sections 496, 497 and .498 bail could be granted to any person who was not under arrest or under custody; that having regard to the meaning of the word 'bail' admission to bail or release on bail necessarily and essentially implied the substitution or the custody of the detaining authority by the control of the surety into whose hands the person bailed out was delivered; that the appearance of a person in Court, even if voluntary, could not give any power to the Court to grant bail to the person in anticipation of arrest; and that the words 'or suspected of the commission of' inserted in section 497 by the amending Act of 1955 did not in any way override the meaning of the word 'bail' and 'enlarge the power of the Court in the matter of grant of bail and the words 'in any case' end 'any person' used in Section 498 Cr. P. C. had not the effect of giving to the High Court or to the Court of Sessions any powers to admit any person to bail irrespective of the fact whether he had or had not been arrested and put under restraint at the time of applying for bail. The argument of the learned Government Advocate followed the reasoning given in Mohd. Abbas v. Crown, AIR 1950 Sind 19, AIR 1950 EP 53, AIR 1951 Nag 471, Muzafaruddin v. State of Hyderabad, AIR 1953 Hyd 219, State v. Dallu Punja, AIR 1954 Madh-B. 113, Juhar Mal v. State, AIR 1954 Raj 279 State of D.P. v. Kailash, (S) AIR 1955 All 98, Amjad v. State, (S) AIR 1955 Cal 141 and Public Prosecutor v. Manieya Rao, AIR 1959 Andh Pra 639. Learned Government Advocate instanced the difficulties that the Police would have to experience in investigation if a person accused of or suspected of the commission of an offence were to be released by making an anticipatory order of bail to the effect that if the Police arrests him, he should at once be admitted to bail in such and such sum and with such and such sureties.

4. Learned Counsel appearing for Narayan Prasad, on the other hand, urged that the wordings of Sections 496, 497 and 498 enable the Court to exercise the power or granting bail to a person accused of or suspected of the commission of an offence even when he is not brought before the Court after arrest but is free and voluntarily appears complaining that in all probability the Police, prompted not by motive of furthering the ends of justice in relation to any case but by some ulterior motive and in order to disgrace and dishonour him, intend to arrest him; and that the Court is entitled to exercise this power even when no warrant has been issued for the arrest of the person and without even causing the person to be formally arrested. It was said that the words 'or suspected of the commission of' were inserted by Act No. 26 of 1955 in Section 497 with the object of enabling the Court to grant 'anticipatory bail', and that the expressions 'in any case' and 'direct that any person be admitted to bail' in Section 498 plainly indicated that bail could be granted to any person who was not in custody or was not required to surrender to any custody but who apprehended arrest. Learned Counsel commended to us for acceptance of the reasoning given, by Khan J. in AIR 1960 Madh-Pra 54. A reference was also made to the decision of this Court in The State of M.P. v. Bhagwat Sao, Cr. R. No. 271 of 1961, D/- 30-8-1961 (MP) where Golvalker J. has expressed his agreement with the view taken by Khan J. in Abdul Karim Khan's case, AIR 1960 Madh-Pra 54 (supra).

5. At the outset it is necessary to examine the provisions of Sections 496, 497 and 498 of the Code which deal with the powers of the Court to grant or refuse bail to persons accused of bailable and non-bailable offences. Section 496 relates to the grant of bail to persons accused of offences other than non-bailable offences. It provides that when such a person is arrested or detained without warrant by a Police Officer, or appears or is brought before the Court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before the Court to give bail, then the person shall be released on bail. The first proviso to Section 496 further lays down that if the Police Officer or a Court thinks fit, then instead of taking bail from such person he may be discharged 'On his executing a bond without sureties for his appearance as hereinafter provided'. Section 497 deals with the powers of the trial Court to grant or refuse bail to persons accused of non-bailable offences. Sub-section (1) of this section refers to a stage when the person accused of or suspected of the commission of an offence first -appears or is brought before the Court. At this stage there is little or no evidence for a Court to act upon and the matter of granting bail is entirely in the discretion of the Court subject to the restriction that if there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or transportation for lite the accused shall not be released on bail except when the accused is a minor under sixteen years of age or a woman or a sick or an infirm person in which case he may be released on bail. If the accused is not released at the initial stage of his appearance in the Court, he can still be released subsequently during investigation, inquiry or trial it there are not reasonable grounds for believing that he has committed a non-bailable offence but that there are sufficient grounds for further inquiry into his guilt. This is provided by Sub-section (2). Then again it is provided by Sub-section (4) that if after the conclusion of the trial before delivery of judgment the Court is of the opinion that there are reasonable grounds for believing that the accused is not guilty of any non-bailable offence, then the Court shall release the accused, if he is in custody, on the execution by him of a bond without sureties tor his appearance to hear the judgment delivered. It is obvious from the provisions of Section 497 that it gives discretion to toe trial Court to order release on bail in cases of non-bailable offences subject to the restrictions mentioned in Sub-sections (1), (2), (3A) and (4) and contemplates the release of a person granted bail from custody.

6. The next section, namely, Section 498, deals with three matters, namely, (1) fixing the amount of bond; (2) the power of the High Court and the Court of Sessions to admit any person to bail in any case, whether there fee an appeal on conviction or not; and (3) the power or the High Court and the Court of Session to reduce the bail required by a Police Officer or a Magistrate. On comparing Section 497 with Section 498, the conclusion is irresistible that the High Court and the Court of Session are invested by Section 498 with wide powers in the matter of granting or refusing bail not only as Courts of superior or revi-sional jurisdiction but they have also concurrent jurisdiction with the Courts of trial Magistrates in the matter. The power of the High Court and the Court of Session to grant bail is not fettered by any conditions or limitations imposed by Section 497. The unfettered powers of the Court under Section 498 relate to granting of bail in cases relating to offences punishable with death or transportation for life. It does not cover the grant of 'anticipatory bail' to a person accused of or suspected of the commission of. an offence if he is not in custody. As pointed out by the Privy Council in Jairamdas v. Emperor, AIR 1945 PC 94 Sections 496 and 497 provide for the grant of bail to accused persons before trial, and the other sections in chapter XXXIX deal with matters ancillary or subsidiary to those provisions. Therefore the power under Section 498 is clearly supplementary or subsidiary in that it completes the provision in Sections 496 and 497 with regard to the grant of bail to accused persons. The provision in Section 498 with' regard to fixing the amount of every bond is undoubtedly an incidental and instrumental provision for carrying into execution the power granted to the Court under Sections 496 and 497; and the power conferred on the High Court and the Court of Sessions to grant bail uncontrolled by any of the restrictions mentioned by Section 497 only supplements the provisions contained in Sections 4S6 2nd 497 with regard to grant of bail to accused persons. in Jairamdas's case, AIR 1945 PC 94 (supra) the Privy Council emphasized the fact that the jurisdiction to grant bail exists only under the statutory provisions contained in Chapter XXXIX and Section 426 and the High Court has no inherent power under Section 561A to grant bail.

7. The question whether a person who is not in custody or one who is not required to surrender to any custody in the absence of any order of arrest against him can at ail be granted bail, must, therefore, be determined with reference to the terms of Sections 496, 497 and 498 and not OH considerations of difficulties in Police investigation or of harassment to persons accused of or suspected of the commission of an offence. In determining that question, the ordinary meaning of the word 'bail', which has been repeatedly used in Sections 496, 497 and 498, and the concept of 'bail' as understood in the Code cannot be ignored. The dictionary meaning of the word 'bail' is to set free or liberate a pe'rson on security being given for his appearance. In Wharton's Law Lexicon (14th Edn.) the word 'bail' has been defined thus--

'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 hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safelyprotected from prison, to which they have, if they fear his escape, etc. the legal power to deliver him.' In Tomlins' Law Dictionary, it has been stated that the word 'bail' is used in our Common Law for the freeing or setting at liberty of one arrested or imprisoned upon any action, either civil or criminal, on surety taken tor his appearance at a day and place certain. The reason why it is called 'bail', is because by this means the party restrained is delivered into the hands of those that bind themselves for his forthcoming, in order to a safe keeping or protection from prison'. The word has been similarly defined in Earl Jowitt's 'Dictionary of English Law' (1959 Edn.) It has also been similarly defined in Stroud's Judicial Dictionary and other legal dictionaries. 'Bail' thus means release of a person from legal custody. This meaning of the word has been adhered to in the Code. A reference to Sections 57, 59, 62, 63, 64, 169, 170, 495 and 49/ giving to the police the power to release on bail and Sections 76, 86, 91, 186, 217, 426, 427, 432, 438, 496 and 497 dealing with the power of the Court to grant bail and to the forms prescribed for bailable warrants and for bail-bonds which are to be executed when bail is given makes it very clear that where a person is granted bail he is released from restraint. If, therefore, the grant of bail to a person presupposes that he is in the custody of the Police or of the Court, or, if not already in such custody is required to surrender to such custody, then it is unreal to talk of any person, who is under no such restraint, being granted bail.

8. The argument that 'anticipatory bail' of the kind granted in the present case is permissible because of trtahe use of the word 'appears' in Sections 498 and 497 is grounded on a total misconception of the meaning of the word 'appears' in the context of the provisions dealing with the release of a person on bail. It may be conceded that the word 'appears' contemplates appearance in person of a person who has neither been arrested nor detained ana includes the voluntary appearance of such person. If a person has already been arrested or detained, then clearly he would not be in a position to appear in Court. He would then have to be brought before the Court. But mere voluntary appearance, without anything more, cannot give to the Court the power of releasing the person on bail. The reason is that a person who is free and is not required to surrender to any custody under any order of arrast issued against him is under no custody from which he can be released. Such a person may be liable to be arrested for any offence which the person having authority to arrest' considers him to have committed. But the mere liability of a person to arrest is no restraint. a free person, by his voluntary appearance in Court, may place himself at the 'disposal' of the Court. But by such appearance he does not place himself in the legal custody of the Court for securing bail. There is no provision in the Code empowering the Court to take into custody a person, offering or surrendering himself if there is no justification in law for the Court to exercise the power of taking the said person into custody. If a free person, whom the Polled has not thought it fit to arrest and against whom there is no warrant of arrest, comes to the Court for bail so that he may be spared the ignominy of possible arrest, the Court would not be justified in taking him into custody forming its own conclusion from the police papers and then releasing him on bail for a supposed offence. As was observed by Kapur J., in AIR 1950 EP 53.

'If I may say so, it would be an absurd position that the Court should put a person under restraint when heis a free man and there is no charge against him exceptingperhaps something contained in the first information report which may or may not be sufficient for the apprehending of that person. I cannot imagine that the Codecould have conferred any such power on the Court.

* * * * * *To my mind this would be an intolerable position that although a person was quite free when he came to Court he should be put in jeopardy of arrest and of the commitment to jail although no charge may have been levied against him or he might never have been arrested or on interrogation he might have been able to prove to the satisfaction of the police officer, who was going to arrest him, that as a matter of fact he had not committed any offence for which he could be arrested.'

It would be altogether anomalous for a Court to place a person, against whom there is no warrant of arrest and who is not required to surrender to any custody, into custody for having committed some offence when he comes to the Court for bail proclaiming loudly that he has not committed any offence and there is no ground for his arrest in future. By adopting such a course, the Court would be interfering with the police in matters which are within their province and which interference the Privy Council deprecated in Emperor v. Nazir Ahmad, AIR 1945 PC 18 by making the following observations:

'Just as it is essential that every one accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary, should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as has been shown there is a statutory right on the part of the police to investgiate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court. The functions of the judiciary and the police are complementary, not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function. . . . .'.

9. The present case fully illustrates the point that anticipatory bail cannot be granted by a Court without taking upon itself the function of the Police of determining whether the person concerned has or has not committed an offence and whether he should be challaned for it. It is clear from the record that while the Police were still considering whether Narayan Prasad should be arrested for offences under Sections 324 and 452 I.P.C., in respect or which Komal Singh had lodged a report against him, the Magistrate, on a perusal of the first information report, came to the conclusion that though it was premature to decide for what particular offence Narayan Prasad should be charge-sheeted he could at the most be said to have committed offences falling under Sections 324 and 294 I.P.C. which were both bailable. In his application for bail, Narayan Prasad had not admitted that he had committed any such offence. There was no warrant in law for the Magis-trate to take upon himself the duties of the Police and determine from a perusal of the first information report the offence which Narayan Prasad appeared to have committed just for the purpose of enabling him to exercise the power of granting bail. The record also does not reveal whether Narayan Prasad was formally arrested for these offences before the order granting bail was made.

10. In our opinion, the word 'appears' as used in Sections 496 and 497, therefore, means the appearance of a person who is required to surrender to custody under an order of arrest made against him, and not the appearance of a free person who is under no restraint and who merely apprehends a possible arrest. The addition of the woras 'or suspected of the commission of' in Section 497 by the amending Act No. 26 of 1955 does not in any way enable the Court to grant anticipatory bail to a free person. Those words and the words 'in any case' and 'any person, occurring in Section 498 do not wipe out the above-stated meaning of the words 'appears' and 'bail'. The words 'any person' in Section 498 mean a person accused of or suspected of the commission of any offence who has been arrested or detained or who is required to surrender to custody under an order of arrest against him and do not include any person who is neither under arrest nor is required to surrender to custody under any order, of arrest against him. The words 'in any case', as explained, by the Privy Council in the case of Jairamdas, AIR 1945 PC 94 (supra), have relation to the words 'whether there be an appeal on conviction or not' and have been used to indicate that all the accused persons are within Section 498 whether their case is bailable on conviction or not. There is no justification whatsoever for reading the words 'in any case' as giving power to the High Court or the Court of Session to grant bail to persons who are neither under arrest nor required to surrender to any custody under an. order of arrest. In our judgment, none of the Sections 496,1 497 and 498 empower the Court to grant bail to a free person in anticipation of his possible arrest for some offence and in the absence of any order of arrest against him. A person for whose arrest a warrant has been issued can no doubt be allowed bail if he appears in the Court and surrenders himself. But in such a case the grant of bail is not in anticipation of a possible arrest but is after an actual formal arrest.

11. Turning now to the authorities, it is clear from the cases relied on by the learned Government Advocate that the preponderance of judicial opinion is in favour of the view that anticipatory bail to a person who has not been arrested and who is not required to surrender to any custody under art order of arrest cannot be granted. It is not necessary to discuss those authorities. In Hidayatullah v. The Crown, AIR 1949 Lah 77 which is a decision of a foreign Court, it has no doubt been held that 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. In that case it was recognised that the release of a person on bail necessarily involved release from some custody. But a distinction was drawn between the expressions 'release on bail' used in Sections 496 and 497 and the expression 'direct that any person be admitted to bail' used in Section 498, and it was held that the latter expression was wider than 'release on bail' and did not necessarily involve the release of a person in custody. With great respect to the learned Judgas deciding the Lahore case, we do not find ourselves in agree-ment with this view. For practical purposes, there is no difference between the two expressions. In strictness, in every case of release on. bail, there is first an order of decision to admit a person to bail and this is followed by the execution of bail bonds and the release on bail of the. person concerned. As was pointed out by Das C. J. in the order of reference in AIR 1950 EP 53 that the words 'direct that any person be admitted to bail' were used in Section 498 only to make it clear that the formalities of taking a bail bond on the execution of which the release would follow were not to be the concern of the High Court or the Court of Sessian but were to be the duties of the police officer or the Court, as the case may be, and that the words meant in effect nothing more than a direction for release of the person after taking the bail bond. The construction put on the expression 'direct that any person be admitted to bail' by the Lahore High Court is utterly incompatible with the meaning of the word 'bail', in AIR 1960 Madh Pra 54 our learned brother Khan J., adhered to the view which he had expressed in AIR 1952 Madh B. 161 and which had been overruled by the Madhya Bharat High Court itself in AIR 1954 Madh B 113 and held that 'anticipatory bail' could be granted under Sections 496 and 497 to a person suspected of the commission of an otfence it he appears in Court as by his very presence he places himself in the custody of the Court, We have already observed earlier that by such appearance the person may place himself at the disposal of the Court but cannot be regarded as in legal custody of the Court for the purposes of granting bail. It must be noted that in AIR 1952 Madh-B. 161 (supra) the learned Judge had gone to the length of saying that 'anticipatory bail' can be given to a person even if he appears before the Court through a counsel and irrespective of the fact whether the person concerned is under any sort of restraint or not. What we have said above is sufficient to show that the view taken by Khan J., in AIR 1960 Madh. Pra 54 (supra) is not correct and that the weight of authority of the decision in AIR 1951 Nag 471 is in no way lessened or affected by the insertion of the words 'or suspected of the commission of' in Section 497 by the amendment Act No. 26 of 1955.

12. In Cr. R. No. 271 of 1961 D/- 30-8-1961 (Madh Pra) Golvalkar J., while expressing his agreement with the View taken by Khan J., in AIR 1960 Madh Pra 54 (supra) said:--

'The word 'appears' appearing in the section can have no other meaning but the appearance by such a person of his own accord voluntarily as otherwise there could never be any appearance of a person if in custody unless produced by his custodians. The contrary views have apparently been based on the ground that since the word 'bail' itself signified release from a custody there could be no order granting bail without the person being in custody. If it were to be a condition precedent to the granting of bail that the person to be released must be in custody then there could never be any question of appearance of the accused in Court unless he was brought before it. But in Section 497 of the Code before the amendment both the situations, in one case the accused himself appearing in Court and in another being in custody he is brought before the 'Court, were envisaged by the use of two separate expressions; (i) 'appears' and (it) 'or is brought'. The amendment, therefore, in my opinion, was made so that there may be left no scope for contemplating any particular- prior condition or situation to exist before granting of bail. So even without that amendment, in my opinion, anticipatory bail could be granted.'

With great respect to the learned Judge, we think that the above observations of his do not give due effect to the meaning of the word 'bail' and to the fact that the word 'appears' takes its colour from the provisions in which it has been used and which deal with the release of a person on bail, that is to say, the release of a person from actuator threatened custody under an order of arrest issued against him.

13. A reference may also be made to the decision of Sharma J., in Sukhlal Kachhi v. State, 1960 Jab LJ 1078: 1961 (2) Cri LJ 121 where the learned Judge has observes that when a person, who is accused of an offence, presents himself before a Court with a prayer for being released on bail he has immediately to be placed in custody and handed over to the authorities concerned. It is not clear from the judgment in Sukhlal's case, 1960 Jab LJ 1078 : 1961 (2) Cri LJ 121 (supra) whether any warrant of arrest had actually been issued against the accused person. But if the learned Judge intended to say that even in the absence of any order of arrest a person presenting himselt before a Court can be taken in custody by the Court and handed over to the authorities concerned, then the proposition cannot be accepted for reasons which we have already stated. In that case, Sharma J., referred to the decisions in AIR 1960 Madh Pra 54 (supra) and AIR 1951 Nag 471 (supra), which the learned Sessions Judge of Gwalior had followed in preference to the decision in AIR 1960 Madh Pra 54 (supra), Sharma J., declined to express any opinion on the propriety of the course adopted by the learned Sessions-Judge and also on the correctness of the view expressed in Abdul Karim Khan's case, AIR 1960 Madh Pra 54 (supra). He felt himself bound by the decision in Abdul Karim Khan's case, AIR 1960 Madh Pra 54 and did not think it necessary to refer the matter to a larger Bench. The learned Judge no doubt followed the right course when he was not inclined to differ from the decision of Khan J., in Abdul Karim Khan's case, AIR 1960 Madh Pra 54 (supra). But we cannot avoid saying that a reference to a larger Bench should have been made by Khan J., when he was not inclined to follow the decision in AIR 1951 Nag 471 (supra). A Judge has always the right of expressing his own opinion, and indicating that he is not in agreement with an authority binding on him, but he is nevertheless in duty bound to follow it. A Single Judge differing from a decision of another Single Judge in a previous case should refer the case to a larger Bench instead of deciding the case in accordance with his own view. In Mahadeolal v. Administrator General of W.B., AIR 1960 SC 936 the Supreme Court has pointed out that judicial decorum no less than legal propriety requires that a Single Judge differing from a decision of another Single Judge in a previous case on a question of law should refer the case to a larger Bench instead of deciding the case in accordance with his own view and that the same procedure should be followed by a Division Bench if it is inclined to disagree with an earlier decision of another Division Bench on a question of law.

14. For all these reasons, our conclusion is that under Sections 496, 497 and 498 of the Code bail cannot be granted to a person who has not yet been arrested for any actual charge of any offence or even on suspicion of his complicity in any offence and who is not required to surrender to any custody under any order of arrest but who apprehends that he may sometime be arrested by the Police as a person accused of or suspected of the commission of an offence.

15. The case will now go before the Learned Single Judge making the reference, for disposal.


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