L.S. Mehta, J.
1. These are the two bail applications one submitted by Ram Singh and the other by Jagat Narain. Both the applications emerging out of the same judgment are disposed of together. Jagat Narain and Ram Singh have been convicted of the offences, punishable under Section 409, 120B, 477A., and 469, I.P.C. read with Section 5(2) of the Prevention of Corruption Act. They have been sentenced to 7 years' rigorous imprisonment and to pay a fine of Rs. 10,000/-, each in default of payment of which to suffer further rigorous imprisonment for a period of three years under Section 409, I.P.C. They have also been sentenced to three years' rigorous imprisonment and to pay a fine of Rs. 1000/- each, or to rigorous imprisonment for 6 months in default of payment or fine, under Section 468, I.P.C. They have further been sentenced to suffer rigorous imprisonment for three years' each under Section 477A., I.P.C. Under Section 120B., they have been awarded five years' rigorous imprisonment for three years each under Section 477A I.P.C. Under Section 120B they have been awarded five years' rigours imprisonment and to pay a time of Rs 1000/-, each or six months' rigorous imprisonment in default of payment of fine. Likewise they have been sentenced to three years' rigorous imprisonment and to pay a fine of Rs, 1000/-, in default of payment of which to suffer further sentence of rigorous imprisonment for six months under Section 5(2), Prevention of Corruption Act. Both the accused Jagat Narain and Ram Singh have taken appeals against their convictions and the sentences.
2. The contention of learned Counsel for the applicants is that the petitioners are in the Government service and there is no apprehension of their absconding. They were also on bail throughout in the trial court. The disposal of their appeals and the preparation of the case by counsel for both the parties would take a considerable time. The prosecution examined as many as 327 witnesses and got exhibited 448 documents. The accused in all produced 16 witness, besides 59 documents in their defence. Apart from the voluminous evidence on the record in a case under Section 409, I.P.C., counsel submit that unless they get assistance from their clients, it would be impossible for them to prepare the case. The counsel also argued that the occurrence is of 1960 and the accused have faced inquiry and trial for a number of years. The sanction accorded in this case, counsel and, is defective. They, therefore, urged that the two petitioners should be emerged on bail, pending the disposal of their appeals. Learned Deputy Government Advocate opposed the bail application.
3. As some questions have been raised regarding certain principles applicable to bail applications, it would be appropriate to look into the provisions of the relevant sections of the Criminal Procedure Code at the very outset.
4. In all bailable offences bail can be claimed on a matter of right under Section 490, Cr. P.C. subject to certain conditions.
5. Section 497, Cr. P.C. (as amended) gives a discretion to the court to order release of the accused on bail even in case of non-bailable offences. But such a discretion is controlled by two restrictions Sub-section (1) of Section 497, Cr. P.C. provides:
If there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life,
then he shall not he released. On the other hand, Sub-section (2) of Section 497, Cr. P.C. enacts: that if:
there are not reasonable grounds for believing that the accused has committed a non bailable offence,
the accused shall be released on bail. It is obvious that where the prosecution satisfies the court that there appear reasonable grounds for believing that he has been guilty of such a serious offence as is punishable with death or imprisonment for life, the Magistrate has no discretion to grant bail. On the other hand, if the defence can satisfy the court that there are no reasonable grounds for believing that he has committed a non-bailable offence (not necessarily one punishable with death or imprisonment for life) or that there are no reasonable grounds for believing that he has committed a non-bailable offence (not necessarily one punishable with death or imprisonment for life) or that there are reasonable grounds for believing that he is not guilty, then the court has no option but to grant bail. In every other case, where it cannot be shown affirmatively that there are reasonable grounds for believing that he has been guilty of an offence punishable with or imprisonment for life or where if cannot be shown clearly that there are no reasonable grounds for believing that he has committed any nonbailable offence or it cannot be shown that there are reasonable grounds for believing that he is not guilty, the court is free to exercise its discretion having regard to all the circumstances of the case.
6. Section 498, Cr. P.C. gives unfettered discretion to the Sessions Judges or to the High Court to grant bail to an accused person. It is a mistake to imagine that Section 498, Cr. P.C. is controlled by the limitations of Section 497, except when there are no reasonable grounds for believing that he is not guilty, in which case it becomes the duty of the court to release the culprit. Magistrate can proceed only under Section 497 and the of discretion is regulated by the provisions that section. Section 498, Cr. P.C. however confers upon the court of Sessions or the High Court extensive powers in the matter of grant of bail; even if the offence is non-bailable. They are not handicapped by the restrictions laid down in Section 497, Cr. P.C. That discretion is unfettered. Of course, it cannot be exercised arbitrarily. It has got to be exercised judicially. As has been observed, in Halsbury's Laws of England, Third Edition Vol. 10 P. 374;
In deciding questions relating to the granting of bail Justices act judicially, and not ministerially.
There is no inflexible principle governing such a discretion. The only well established principle is that there should be a judicial exercise of the discretion In Emperor v. Hutchinson AIR 1931 All 356, a Division Bench of the Allahabad High Court, comprising Mukerji and Rays. JJ considered 9 circumstances in detail, including the nature and the gravity of the charges, severity and degree of the punishment, that might follow, the danger of the accused absconding if released on bail, danger of witnesses being tampered with, opportunity to the defence to prepare the case and the like. These considerations do nor appear to have been laid down as exhaustive and inflexible tests. Many other considerations are covered even by the proviso to Section 497(1), Cr. P.C. It has been observed by Mukerji J. in Hutchinson's case:
On general principles and on principles on which Sections 496 and 497 are framed, the grant of bail should be the rule and the refusal of bail should be the exception.
With due deference to the learned Judge, I do not think that any such rule exists as regards serious non-bailable offences, punishable with death or imprisonment for life. As regards such offences the Legislature has prohibited Magistrates from granting bail at all except when the accused is under the age of 16 years or when the culprit is a sick or an infirm person. The power regarding grant of bail by the High Court or the Sessions Judge, exercising powers under Section 498, Cr. P.C. for offences punishable with death or imprisonment for life, is to be exercised cot as a general rule but only in exceptional cases. In exceptional cases, as has been pointed out above, bail can be granted even if the offence is punishable with death or imprisonment for life.
7. In a case under Sections 409 and 467, I.P.C. Wazir Hasan J.C. in Bishambhar Nath Tandon v. King Emperor AIR 1924 Andh 435 observed:
If the accused were kept in custody they would not be able to conduct their defence properly.
Similarly Broomfield and Divatia JJ. in Keshav Vasudeo v. Emperor AIR 1933 Bom 432 in a case under Rs. 120B/409/477A., I.P.C. held:
In fact one might go further and say that there ought. to be very special circumstances to justify the grant of bail in a case of that kind although I do not consider that the court need be as strict in the case of an offence under Section 409, even though it happens to be made punishable with transportation for life, as it should be in the case of offences, like murder.
Agha Haidar J. In Ram Narain v. Emperor AIR 1932 Lab 14 has laid down the following propositions regarding bail in a case involving of questions of accounts:
In cases involving question of accounts it is desirable that the accused should be given full opportunity of instructing his counsel as regards accounts etc.
8. The present case rests upon voluminous evidence, which will have to be examined and considered. It is reasonable to suppose that while preparing the case the counsel appearing for the accused persons would need the personal attendance of their clients very largely to give them proper instructions. The accused persons dwelling in the lockup would experience lot of difficulties in their defence. It would be very difficult for the accused to defend themselves if they are confined in the lockup The function of the court is that both the sides, the prosecution as well as the defence, should have a fair opportunity to put up their case. What opportunity can such persons have for defending themselves when the whole defence rests on a proper and correct appreciation of the voluminous oral and documentary evidence produced in the case? The bulk of the evidence would be obviously unintelligible to the counsel for the accused, unless the latter explain to the former the relevant accounts, appropriate rules etc. If the accused are eventually found guilty they would be punished. But before that is done, they must have a fair chance of defending themselves, which, I am very much reluctant to take away. The trial of the case is also complete. I see no reason to suppose that there is now any danger of the evidence for the prosecution being tampered with.
9. Before I take leave of this case, there is one matter which I desire to place on the record. Both the accused are Government servants and they have so far held certain position in the society. Their position affords some guarantee that they would not abscond. The principal ground for the grant of bail is the certainty that the preparation of the case would take pretty long time and the arguments would be protracted, the case being of a complicated nature. That in it self, I consider, would under the circumstances, justify the release of the petitioner on very substantial bail. Learned Deputy Government Advocate expressed apprehension in the course of his arguments as to the absconding away of the accused. These apprehensions, however, will not be sufficient grounds to refuse bail. The apprehensions, it appears, are merely chimerical or visionary, particularly when the accused were already on bail in the course of their protracted trial and they did not jump it.
10. In the light of the above discussion, the best course, in the special circumstances of the case, is that the applicants should be admitted to bail to the satisfaction of learned Session on Judge Alwar, who in determining the amount of personal bonds and the surety bonds, will bear in mind the fact that the object, must be to secure the attendance of the accused in this Court on all the dates, during which the hearing of the appeal proceeds. The Sessions Court will, however, not ignore the fact that the bail will be adequate though not very excessive.