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Varkey Paily Madathikudiyil Pulinthanam and anr. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 187 of 1966
Judge
Reported inAIR1967Ker189; 1967CriLJ1152
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 496 and 497
AppellantVarkey Paily Madathikudiyil Pulinthanam and anr.
RespondentState of Kerala
Appellant Advocate S. Easwara Iyer, Adv.
Respondent AdvocateState Prosecutor
DispositionPetition dismissed
Cases ReferredJairamdas v. Emperor
Excerpt:
- - some of the offences complained against them, namely, offences under sections 326 and 452 were non-bailable- learned magistrate dismissed the application on the ground that anticipatory bail cannot be granted. 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......powers of the court in the matter of grant of bail has been widened so as to enable the court to grant bail to a person who was not actually under arrest and on whom no restraint had been put and who is 'merely suspected of the commission of the offence. it was pointed out that the expressions used in section 498 'in any case' and 'direct that any person be admitted to bail' would indicate that bail may be granted to any person who was not in custody or was not required to surrender to any custody but who merely apprehended arrest. learned counsel also referred me to the decision in abdul karim khan v. state of m. p., air 1960 madh pra 54. there, khan, j., took the same view which he had taken in state v. mangilal, air 1952 madh b 161, but this decision has not been followed in a later.....
Judgment:
ORDER

P. Govinda Menon, J.

1. The question that arises for decision in this revision petition is whether under Sections 496, 497 and 498, Cri. P. C., bail can be granted to a person who has not been arrested on any charge of any non-bailable offence or for whose apprehension a warrant has not been issued, but who appears and surrenders before the court stating that he is apprehending that he would be arrested as the person suspected of the commission of a cognizable offence. The petitioners through their advocate appeared before the Sub Divisional Magistrate, Always and applied for bail alleging that a case has been registered against them and others for offences of rioting, causing hurt etc. Some of the offences complained against them, namely, offences under Sections 326 and 452 were non-bailable- Learned Magistrate dismissed the application on the ground that anticipatory bail cannot be granted.

2. It is contended on behalf of the petitioners that after the amendment of Section 497 by Act 26 of 1955 and the addition of the words 'or suspected of the commission of the powers of the court in the matter of grant of bail has been widened so as to enable the court to grant bail to a person who was not actually under arrest and on whom no restraint had been put and who is 'merely suspected of the commission of the offence. It was pointed out that the expressions used in Section 498 'in any case' and 'direct that any person be admitted to bail' would indicate that bail may be granted to any person who was not in custody or was not required to surrender to any custody but who merely apprehended arrest. Learned counsel also referred me to the decision in Abdul Karim Khan v. State of M. P., AIR 1960 Madh Pra 54. There, Khan, J., took the same view which he had taken in State v. Mangilal, AIR 1952 Madh B 161, but this decision has not been followed in a later case by the Madhya Bharat High Court in State v. Dallu Punja, AIR 1954 Madh B 113 (FB), where it was held that anticipatory bail cannot be given.

3. The learned State Prosecutor contends that bail cannot be granted to a person whois not under arrest and custody and that having regard to the meaning of the word 'bail', admission to bail or release on bail necessarily and essentially implied the substitution of the custody of the detaining authority by the control of the surety into whose hands the person bailed out is delivered and that the appearance of a person in court, even if voluntarily 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 do 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' and 'any person' used in Section 498, Crl. P. C. has not the effect of giving to the High Court or to the Court of Session any powers to admit any person to hail irrespective of the fact whether he had or had not been arrested and put under restraint at the time of applying for bail, Learned State Prosecutor referred to the decisions in Amir Chand v. Crown, AIR 1950 EP 53 (FB); Muzafaruddin v. State, AIR 1953 Hyd 219; Juhar Mal v. State, AIR 1954 Raj 279; State of U. P. v. Kailash, AIR 1955 All 98; Amjad v. State, AIR 1955 Cal 141 and the decision in Public Prosecutor v. Manikya Rao, AIR 1959 Andh Pra 639; State of Madhya Pradesh v. Narayan Prasad. AIR 1963 Madh Pra 276 and the decision of the Mysore High Court in AIR 1966 Mys 71.

4. It is necessary to examine the provisions of Sections 496 and 497 which deal with the powers of the court in the matter of the grant or refusal of bail. Section 496 deals with bailable offences and Section 497 with non-bailable offences. Sub-section (I) of Section 497 refers to a stage when the person accused of or suspected or the commission of the offence first appears or is brought before the court. At this stage there may be very little evidence to act upon and the matter of granting bail is purely 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 imprisonment for life 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 if there are not reasosable 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). Now coining to Section 498, the section deals with three matters, namely (1) fixing the amount of bond; (2) the power of the High Court and the Court of Session to admit any person to bail in any case, whether there be an appeal on conviction or not; and (3) the power of the High Court and the Court of Session to reduce the bail required by the police officer or a Magistrate. It is true that Section 498 invests the Sessions Court and High Court withwider powers in the matter of granting or refusing bail. The power there is not fettered by any of the conditions imposed in Section 497. The unfettered powers there contemplated relate to the granting of bail in cases, relating to offences punishable with death or imprisonment for life, but I do not think it refers to anticipatory bail.

5. As was 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 only an incidental power granted to the court. To quote the Privy Council case 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 561-A to grant bail. So 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 all be granted bail must therefore be determined only with reference to the terms of Sections 496 and 497.

6. The dictionary meaning of the word 'bail' is to set free or liberate a person on security being given for his appearance. In Wharton's Law Lexicon the word 'bail' has been defined thus: 'To set at liberty a person arrested or imprisoned, on security being taken for his appearance.' The word has been similarly defined in all the dictionaries, and also in Strand's Judicial Dictionary. 'Bail' thus means release of a person from legal custody. If therefore the grant of bail to a person pre-supposes 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.

7. The preponderance of judicial opinion is in favour of the view that anticipatory bail cannot be granted to such a person and I respectfully agree with the view expressed in those cases.

8. For these reasons the order of the learned Magistrate is correct and calls for no interference. Revision Petition is dismissed.


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