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1966 DIGILAW 242 (KER)

VARKEY PAILY v. STATE OF KERALA

1966-09-09

P.GOVINDA MENON

body1966
Judgment :- 1. The question that arises for decision in this revision petition is whether under S.496, 497 and 498, Crl. 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 cognisable offence. The petitioners through their advocate appeared before the Sub Divisional Magistrate, Alwaye 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 S.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 S.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 S.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 M. P. 54). There, Khan, J., took the same view which he had taken in State v. Mangilal (AIR. 1952 M. 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 M. B. 113), where it was held that anticipatory bail cannot be given. 3. There, Khan, J., took the same view which he had taken in State v. Mangilal (AIR. 1952 M. 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 M. B. 113), where it was held that anticipatory bail cannot be given. 3. The learned State Prosecutor contends that bail cannot be granted to a person who is 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 S.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 S.498 Crl. P. C have 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. Learned State Prosecutor referred to the decisions in Amir Chand v. Crown (AIR. 1950 E. P. 53); Muzafaruddin v State (AIR 1953 Hyd. 219); Juhar Mal v. State (AIR. 1954 Raj. 279); State of U. P. v. Kailash (AIR. 1555 All. 98); Amjad v. State (AIR 1959 Cal. 141) and the decision in Public Prosecutor v. Manioya Rao (AIR. 1959 A. P. 639); State of Madhya Pradesh v. Narayan Prasad (AIR 1963 M. P. 276) and the decision of the Mysore High Court in AIR. 1966. Mys. 71. 4. It is necessary to examine the provisions of S.496 and 497 which deal with the powers of the court in the matter of the grant or refusal of bail. S.496 deals with bailable offences and S.497 with non bailable offences. 1966. Mys. 71. 4. It is necessary to examine the provisions of S.496 and 497 which deal with the powers of the court in the matter of the grant or refusal of bail. S.496 deals with bailable offences and S.497 with non bailable offences. Sub-s. (1) of S.497 refers to a stage when the person accused of or suspected of 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 no 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-s. (2). Now coming to S.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 sessions 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 S.498 invests the sessions court and High Court with wider powers in the matter of granting or refusing bail. The power there is not fettered by any of the conditions imposed in S.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. 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 P. C. 94), S.496 and 497 provided 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 S.498 is clearly supplementary or subsidiary in that it completes the provision in S.496 and 497 with regard to the grant of bail to accused persons. The provision in S.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 S.426 and the High Court has no inherent power under S.561A 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 S.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 Stroud'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. 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. Dismissed.