Jaswant Singh, J.
1. This is an application under Sections 561-A and 498 of the Code of Criminal Procedure for quashing the proceedings pending against the applicant Nazir Mesiah, who is one of the accused in F. I. R. No. 108 of 1968 relating to Thanna Saddar Jammu, in the Court of the Chief Judicial Magistrate, Srinagar, or in the alternative for his release on bail.
2. I have heard Shri Inder Das appearing in support of the application as also the learned Advocate General appearing for the State.
3. The application under Section 561-A Cr. P. C, has not been seriously pressed by the learned Counsel for the applicant. Nor have I sufficient material to warrant quashing of the proceedings against the applicant at this interlocutory stage. The prayer for quashing the proceedings pending against the applicant is, therefore, rejected.
4. The only other question that arises for consideration and determination is whether this Court has got power to release the accused when he has not been actually arrested.
Section 498 Cr. P. C. which governs the matter runs as follows:
(1) The amount of every bond executed under this Chapter shall be fixed with the due regard to the circumstances of the case, and shall not be excessive, and the High Court or Court of Session may in any case, whether there be an appeal on conviction or not direct that any person be admitted to bail or that the bail required by a police officer or Magistrate be reduced.
(2) A High Court or Court of Session may cause any person who has been admitted to bail under Sub-section (1) to be arrested and may commit him in custody.
5. In . it has been held that there must be some kind of restraint to him before a person who appears before the court is granted bail by the court, and that neither the High Court nor the sub-ordinate courts have power under the Code of Criminal Procedure to grant bail to a person seeking bail if he has not been arrested or detained in custody or brought before them or no warrant of arrest or even an order in writing for his arrest under Section 56 Cr. P. C has been issued against him.
6. In AIR 1954 Hyd 55, it has been held that where a non-bailable offence has been registered against the accused, the threat and the power of the officer in charge of investigation of arresting the accused is always hanging on his head and that is a sufficient restraint for the purposes of Section 497 Cr. P. C.
7. In 0044/1966 : AIR1966Guj146 , it was held that a person merely accused or suspected of an offence cannot ask for bail by appearing in court unless he is actually under arrest or a warrant of arrest has been issued and he being liable to arrest has appeared before the Court.
8. In AIR 1950 East Punj 53 (FB) it has been held that in case of a person who is not under arrests but for whose arrest warrants have been issued, bail can be allowed if he appears in court and surrenders himself.
9. The legal position that emerges from the aforesaid authorities is that for exercise of power under Sections 497 and 498 Cr. P. C. the person asking for bail must be under some sort of restraint or a warrant of arrest must have been issued against him. As not only a non-bailable offence has been registered against the applicant but warrant of arrest under Section 512 Cr. P. C. has according to his affidavit been issued against him. I cannot but in the light of the aforesaid rulings, hold that, the applicant is liable to be arrested and as such as under a threat of arrest. Thus a warrant for his apprehension having been issued under Section 512 Cr. P. C. and he having surrendered himself before me, I think he is entitled to ask for bail. As the other accused namely O.N. Chadda, Bimal Kumar and Himmat Singh have already been released on bail vide my order dated 25th November, 1968, and as the case of the applicant appears to stand at par with them. I am of the opinion that he should also be released on bail. I, therefore, direct that the applicant be released on his furnishing bail and a personal recognizance bond to the satisfaction of the Chief Judicial Magistrate, Srinagar.
10. The learned Counsel for the applicant has undertaken to cause the attendance of the applicant before the Chief Judicial Magistrate, Srinagar, on the 2nd December, 1968.