Order It is on humanitarian ground that, so far as the first petitioner is concerned, an earnest submission is made by Mr. Sam V. Chelliah that the father of the first-petitioner is actually in his death bed and as such he may be released on bail, if necessary by imposing any stringent condition and so far as the second petitioner is concerned he submits that his case also has to be viewed sympathetically because both the petitioners are innocent and have been falsely implicated in this case. 2. Mr. Karpagavinayagam, learned Government Advocate No. III, vehemently opposes this application on the ground that the investigation is pending and as such this Court should not release the petitioners on bail, but any how if this Court is satisfied so far as the submission made relating to the first-petitioner by a documentary evidence such as a medical certificate showing the actual illness of the father of the first-petitioner, then this Court may release the first petitioner, by imposing condition. 3. It is relevant in this connection to note that it is common ground that on 17th September, 1981, this Court had refused to grant bail for these two persons and an order of dismissal was the fate of the Application No. 4957 of 1981 that was filed on behalf of these two petitioners under section 436 of the Criminal Procedure Code, Mr. Sam V. Chelliah submits that the discretionary power vested under section 436 of the Criminal Procedure Code, is wide enough to grant bail, though it is a case in which it is alleged on the side of the prosecution that these petitioners are actually caught red-handed with a gunny bag containing idols and that a special police party had now been deputed to trace one Ramana Reddy or to ascertain the temple from which these idols have been stolen, the same cannot stand in the way of the discretionary power of this Court to grant bail to these petitioners. 4. The point for consideration is whether these two petitioners can be granted bail? 5. It is common ground that these petitioners were arrested on 2nd September, 1981, and that at that time the first accused-petitioner was in possession of stolen idols made of “panchaloga” metal and that both the accused petitioners were remanded to custody, as they did not account for the possession of the idols. 6. 5. It is common ground that these petitioners were arrested on 2nd September, 1981, and that at that time the first accused-petitioner was in possession of stolen idols made of “panchaloga” metal and that both the accused petitioners were remanded to custody, as they did not account for the possession of the idols. 6. The learned Government Advocate No. III also submits that investigation so far made has revealed that the idols had been stolen from a temple in Andhra Pradesh and that Andhra Pradesh police is also investigating the matter and as such it is not safe to release the petitioners on bail especially at this stage. 7. What is bail? Bail, in English Common law, is the freeing or setting at liberty of one arrested or imprisoned upon any action, either civil or criminal, on surety taken for his appearance on a certain day and at a place named. The surety is termed bail, because the person arrested or imprisoned is placed in the custody of those who bind themselves or become bail for his due appearance when required. So, he may be re-seized by them (if they suspect that he is about to escape) and surrendered to the Court when they are discharged from further liability. 8. Section 436 of the amended Criminal Procedure Code, reads as follows: “436. ‘In that cases bail to be taken: (1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer-incharge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Provided further that nothing in this section shall be deemed to affect the provisions of Sub-section (3) of section 116. (2) Notwithstanding anything contained in sub-section (1) where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.” The sureties must be sufficient in the opinion of the Court to answer for the sum for which they are bound, and as a rule, only householders are accepted; an accomplice of the person to be bailed or an infant would not be accepted. These are the principles from English Law which we have incorporated so far as the law of bail concerned in our country. 9. Bail is obligatory in all summary cases. It is also obligatory in all misdemeanors, except such as have been placed on the level of felonies, viz., obtaining or attempting to obtain property on false pretences, receiving property so obtained or stolen, perjury or subordination of perjury, concealment of birth, wilful or indecent exposure of the person, riot assault in pursuance of a conspiracy to raise duty or upon any one assisting him, neglect or breach of duty as a peace officer, any prosecution of which the costs are payable out of the country or borough rate or fund. The above are the principles that govern English law which in similar circumstances have been adopted so far as Indian law is concerned by the Criminal Procedure Code, when it came on the statute book as early as 1872. The provisions of this Code have been substantially and to a very large extent modified to suit the present conditions of Bharat by the coming into existence of the amending Act of 1975, wherein a radical departure has been made even with respect to imposing death sentence, i.e., when a Sessions Judge imposes death sentence on an accused-person, as has to give specific reasons as so to why he has come to such a conclusion so far as that person is concerned. So a radical departure which of course can certainly be called as refreshing inasmuch as the society requires such kind of amendments being come into existence and they more or less shape the procedural law of the land so far as the Code of Criminal Procedure is concerned in that manner, because law is not static, but it is dynamic, it has to change itself to the surrounding circumstances and also should be in consonance with the development of the society. Therefore, of course, this power of making law is vested with a Court also to certain extent, but it, vis., the Court cannot take on itself such power, which is exclusively that of the Legislature for making laws, because the Legislature is the competent authority to legislate for the States, because it is the representative of the States which constitute both the Houses, viz., the Upper House and the Lower House of the Legislature. Therefore, when an enactment by way of Criminal Procedure Code, has come into force at the instance of the Central Legislature, which prescribes certain norms and conditions under the heading “Direction for grant of bail to persons apprehending arrest” under section 438, certainly the principles imbedded in that section have to be given effect to. 10. At the same time the law or the background which had been responsible for the coming into existence of that provisions in the statute book has also to be home in mind so as to the several circumstances that are placed before a Court either to allow an application for bail or to reject the same. 11. In cases of reason bail can only be granted by a Secretary of State or the King's Bench Division. A person charged with felony is not entitled as of right to be released on bail. The power of admitting a prisoner to bail is judicial and not ministerial, and the exercise of the discretion must not be punitive, the chief consideration being the likelihood of the prisoner failing to appear at the trial of Reg v. Rose1. This must be gauged from the nature of, and the evidence in support of, the accusation, the position of the accused and the severity of the punishment which his conviction will entail, as well as the independence of the sureties. 12. This must be gauged from the nature of, and the evidence in support of, the accusation, the position of the accused and the severity of the punishment which his conviction will entail, as well as the independence of the sureties. 12. In this regard, our Supreme Court has laid down the principles which have to be borne in mind to grant a bail and that is in G. Narasimhulu v. Public Prosecutor, Andhra Pradesh2. The decisions relating to anticipatory bail, of the Supreme Court have been comprehensively incorporated in State of Rajasthan, Jaipur v. Balchand alias Baliah3; State of Gujarat v. Haider Bux Razvi4 and Shri Gurhaksh Singh Sibbia v. The State of Punjab5. The last of the above decisions is the latest decision on the subject pronounced by the Supreme Court. 13. In this regard the decision in Mohantha Gouda v. State of Karnataka6 may also be usefully referred to. This radical change and introduction of a provision under the caption ‘anticipatory bail’ is also a recent development which/is the subject-matter of the amendment that had been brought into existence in the year 1973 to the parent enactment, which forms a considerable portion and size of the procedural law of the land so far as the criminal procedure that has to be adopted by the Courts in the length and breadth of our Mother land. 14. In England, the Bail Act, 1898, gives a Magistrate power, where a person is charged with felony or certain misdemeanors, or, where he is committed for trial for any indictable offence, to dispense with sureties, if in his opinion the so dispensing will not tend to defeat the ends of justice. 15. Further, the principles that have been followed in the English law so far as the granting of bail is concerned, it may be stated that a surety may be examined on oath as to his means, while the Court may also require notice to be given to the plaintiff, prosecutor or police. A person who has been taken into custody for an offence, not apparently of a serious nature, without a warrant, and cannot be brought before a Court of summary jurisdiction within 24 hours, may be admitted to bail by a police officer of superior rank or the officer-in-charge of the police station and this can be done while inquiries are being made (Criminal Justice Acts, 1914 and 1925). 16. 16. An appeal against a refusal to grant bail lies to the King's Bench Division, and the Court of trial has power to grant bail when necessary. 17. The position in United States so far as bail is concerned is more or less similar to that of English procedure. I am just incorporating all these not for following any of the principles imbedded there, because we are governed by the provisions of the Code of Criminal Procedure and as directed by the Supreme Court to be followed, so far as the application of the provisions imbedded in the procedural law of the land. But, yet, in order to appreciate the coming into existence of the decisions as well as the rules and sections incorporated in the procedural law of the land that this discussion is embarked upon. 18. In United States, in civil cases, the right of the person arrested on mesne process to be admitted to bail is absolute. The amount of the bail, unless otherwise fixed by statute, generally depends upon the amount of the civil liability claimed to be enforced, although the Court has some discretion to reduce or increase it. The bond, undertaking or recognizance runs to the arresting officer, generally the sheriff, of to the plaintiff-creditor as required by the statute of the particular jurisdiction. Sureties, if individuals, may generally be either householders or fresholders, or may be a surety company. 19. In U.S.A., so far as criminal cases are concerned, the right to bail, and to that in an amount not to be excessive, is guaranteed by constitutional provisions except in capital cases. In capital cases, bail may be allowed, in the discretion of the Court, dependent on the circumstances of the case and nature and degree of proof of the offence available. The Court having jurisdiction over the trial of the offence has jurisdiction to admit to bail. The form of the bail bond or recognizance is generally fixed by statute. The amount, except that it must not be excessive, is in the sound discretion of the Court. The sureties must generally be free-holders or a surety company. The sureties may surrender the prisoner if they deem their risk doubtful. The form of the bail bond or recognizance is generally fixed by statute. The amount, except that it must not be excessive, is in the sound discretion of the Court. The sureties must generally be free-holders or a surety company. The sureties may surrender the prisoner if they deem their risk doubtful. If the prisoner fails to appear upon the date set by the Court, bail is forfeited and the State may enforce the collection of the amount of the bail against the property of the sureties. 20. It is relevant to note that provisions relating to the cancellation of the bail or making the sureties submit themselves to the conditions that they have imposed on themselves during the time of entering into the contract as a surety so far as the accused-person is concerned, can be enforced by the procedural law of the land, viz., the Criminal Procedure Code, so far as India is concerned. 21. We are now governed by the principles laid down by the Supreme Court in G. Narasimhulu v. Public Prosecutor, Andhra Pradesh1 wherein His Lordship Justice V.R. Krishna Iyer has observed as follows: “Bail or jail?-at the pre-trial or post-conviction stage belongs to the blurred area of the criminal justice system and largely hinges on the hunch of the Bench, otherwise called judicial discretion. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I have to deal with this uncanalised case-flow, ad hoc response to the docket being the lickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorize impressionistic orders as discretionary may, on occasions, made a litigative gamble decisive of a fundamental right. To glamorize impressionistic orders as discretionary may, on occasions, made a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of ‘procedure established by law’. The last four words of Article 21 are the life of that human right. The doctrine of Police Power, constitutionally validates punitive processes for the maintenance of public order, security of the State, national integrity, and the interest of the public generally. Even so, having regard to the solemn issue involved, deprivation of personal freedom, ephemeral or enduring, must be founded on the most serious considerations relevant to the welfare objectives of society, specified in the Constitution.” 22. Bearing the principles enunciated by the Supreme Court in the above decision and examining the submission made by either side, the question that confronts this Court is whether both the petitioners can be released on bail or not, while the investigation is still pending. 23. The first petitioner has now put forward a submission that his father is actually bed-ridden and as such he should be released on bail, by at least imposing stringent conditions on him. There is no documentary evidence to show that the first petitioner's father is bed-ridden. The offence alleged is one, according to the learned Government Advocate No. III, that undermines the very religious sentiments of a section of the society of this Nation. It is a specific allegation that emanates from the side of the prosecution through the learned Government Advocate No. III, that the petitioners herein were found actually standing near Maduravoyal with a bag containing idols. Under these circumstances, this Court finds no reason to enlarge the petitioners on bail even by imposing stringent conditions. There is no merit in this petition. The petition is dismissed. 24. This Court, after having gone through the provisions of the Prisoners Act (III of 1900), Prisoners (Attendance in Courts) Act (XXXII of 1955 ), Prisons Act (IX of 1894 ) and Transfer of Prisoners Act (XXIX) of 1950 ) as well as the provisions of section 436 of the Criminal Procedure Code, together with the binding principle made as a directive by the Supreme Court to this Court to follow while granting bail or anticipatory bail has come to the above conclusion. R.S.R. ----- Petition dismissed.