1. This application for bail raises an important and indeed an interesting question as to the power of the High Court to grant bail to persons who have not yet been arrested on any actual charge of any offence or even on suspicion of their complicity with any offence but who apprehend that they may be harassed by being arrested on unfounded suspicion or a false charge.
2. The application has been made by two petitioners. The petitioner Amir Chand is a practising lawyer at Karnal and is also a Municipal Commissioner at Panipat/ He is a Director of several companies at Karnal, Panipat and Delhi and ia the Chairman of the Board of Directors of one of them. The petitioner Baghu-nath Bass claims to have been a leading businessman of Gujranwala having had a mill at Kamoka in the district of Gujranwala and paying annually Rs. 35,000 as land revenue and Bs. 3,000 as income.tax. Since the partition of the Punjab, this petitioner migrated to Delhi where he is the Chairman of the Board of Directors of a company named the East Punjab Trading Company, Limited. He is also a nomi-nated member of the Municipal Committee, Panipat, In Para. 3 of the petition it is stated that the police wants to arrest the petitioners and harass them for some ulterior motives on the allegations that the petitioners as partners of the National Iron and Steel Works at Karnal did certain acts in contravention of the provisions of the Essential Supplies (Temporary Powers) Act, 1946. Thereafter, the petitioners set out several acts which they think they are suspected by the police to have committed and then proceed to show, by reference to cash memos and otherwise, that the said acts did not constitute any contravention of the Act at all. They plead that they have co-operated with the police in the investigation by giving all information and offer to produce their books whenever required. They say that they are not afraid to face any trial and that there is no likelihood of their absconding and that in view of the fact that the police has already recorded the statements of all prosecution witnesses Under Section 164, Criminal P.C. there can be no question of the petitioners tampering with the witnesses. Two affidavits, one sworn by each petitioner, have been filed in further support of the application. In his affidavit the petitioner Amir Chand states, inter alia, that after the partition of the Punjab he did not for some time renew his legal practitioner's licence and for a short time became a partner of the firm National Iron and Steel Works, Karnal, that he never took any active part in and has no knowledge of the working of the firm which used to be carried on by one Kalyan Dass who had been definitely instructed not to do any. thing contrary to the rules, that he severed his connection with the firm at the end of April 1949 when he renewed his legal practitioner's license and resumed his practice at the bar, that the First Information Report lodged by the C.I.D. relates entirely to the dealings of the firm in May 1949 when he was no longer a partner and that yet the police with ulterior motives wants to arrest him. In the other affidavit the petitioner Raghunath Dass affirms, amongst other things, that he was only a sleeping partner in the firm and has no personal knowledge of its workings which used to be carried on entirely by Kalyan Dass who had been definitely told not to do anything contrary to the rules, that he was and is prepared to assist the police in the enquiry and that he apprehends, the police till wants to arrest him with ulterior motives.
3. When the application was first presented before me I had considerable doubt in my mind as to the power and jurisdiction of this Court to make the order prayed for. I was, however, referred to the very recent Pull Bench decision of the Lahore High Court in the case of Hidayat Ullah Khan v. The Crown A.I.R. (36) 1949 Lah. 77 : Pak. L. E. (1949) Lah, 65 F. B. in support of this application. That decision, being one of a foreign Court, is not strictly speaking, binding on me as an authority but the reasonings on which it is based may well be adopted by learned Counsel for the petitioners as parts of his arguments in support of this application. Finding that there at any rate was an arguable point I admitted the petition, directed notice to be given to the Crown and granted interim bail to the petitioners.
4. Learned Advocate-General appearing for the Crown has taken the preliminary point that this Court has no power to grant what has been called 'anticipatory' bail and stated that if the Court took a different view he would ask for a short adjournment to get instructions on the questions of merits and if necessary file counter affidavits. The preliminary point accordingly has been argued before me at some length. The arguments of learned Counsel for the petitioners have not dispelled my doubts as to the existence of any power in this Court to make the order prayed for and I am not convinced about the correctness of the reasonings on which the decision of the Lahore High Court is founded. The question involved in this application is of considerable importance and it is desirable that it should be decided by a larger Bench of this Court so that no doubt or dispute may arise on the point in future.
5. I think it right, however, to just indicate very briefly, for the consideration of the larger Bench, the reasons which have given rise to the doubts that I have expressed above. They are as follows :
(a) The dictionary meaning of the word "bail" is to set free or liberate a person arrested or imprisoned on taking security for his appearance. It means release from restraint. Reference may be made to the standard dictionaries like the Oxford dictionary and Webster's dictionary or the legal dictionaries like Wharton or Stroud
(b) Different sections of the Code of Criminal Procedure authorise or require a police officer or a Court to release a person on bail. See SB. 57 (2), 59 (8), 63, 169, 170, 496, 497 for powers of a police officer to release on bail and Sections 76, 86, 91, 186, 217, 426, 427, 432, 488, 496, 497 for powers of specified Courts to release a person on bail. Under each of these sections, the perBon dealt with is under restraint and is released from such restraint upon bail. Therefore, each of these sections contemplates an anterior restraint and a subsequent release. This is quite in consonance with the dictionary meaning of the expression "bail."
(c) Section 661-A, Criminal P.C. confers no powers but only safeguards all existing inherent powers of the High Court.
(d) Chapter 39 of the Code together with Section 456 is, and was intended to contain, a complete and exhaustive statement of the powers of a High Court in India to grant bail, and excludes the existence of any additional inherent power in the High Court relating to the subject of bail. (See Jai ram Das v. King Emperor 72 I. A. 120 : I.L.R. (1945) 26 Lah. 57 : A.I.R. (32) 1945 P 0. 91 : 46 Cr.L.J. 662.)
(e) Section 426 empowers the appellate Court and the High Court to grant bail to a convicted person if he is in confinement. Therefore, granting bail under that section amounts to releasing the convict from restraint and this is quite consonant with the dictionary meaning of the word "bail."
(f) Chapter 89 consists of 7 sections from 496 to 602. It has been said by their Lordships of the Judicial Committee that the scheme of Chap. 39 is that Sb, 496 and 497 provide for the granting of bail to accused persons before trial and the other sections of the chapter deal with matters ancillary or subsidiary to that provisions. Lala Jairam Das v. King Emperor 72 I. A 120 : I.L.R. (1946} a6 Lah. 67 : A.I.R. (32) 1945 P.C. 94 46 Cr. h. 3. 662 (supra),
(g) Section 496 provides for the granting of bail to a person other than a person accused of a non-bailable offence and 8. 497 provides for bail to a person accused of a non-bailable offence. It is implied under each section that the person is "accused" of an offence, in the first case of a bailable offence and in the second case of a non-bailable offence, Under each of these sections, the person is under restraint cither involuntary e.g. when he is arrested or detained by the police or produced under arrest before any Court or voluntary e. g. when he appears in Court and surrenders himself i, e., places him. self at the disposal of the Court. Bail under, each of these sections is, therefore, release from restraint which is the dictionary meaning of the word "bail."
(h) It is contended, that Section 498 authorises the High Court and the Sessions Court to grant bail in anticipation of arrest, There appear to me to be several objections, namely :
(i) Section 498, according to the Judicial Committee, is ancillary or subsidiary to 8s. 49& and 497 which, as I have said, provide for bail after arrest and a provision for bail before any restraint is imposed on a person by his arrest or detention or appearance or production in Court Can hardly be said to be ancillary or subsidiary to the provisions for bail after such restraint has been imposed.
(ii) It cannot be lightly assumed that the Legislature would introduce in an ancillary or subsidiary section a provision which has no relation to the working out of those sections to which it is ancillary or subsidiary but which goes far beyond and is wholly independent of the powers conferred on the High Court or the Sessions Court by Sections 496 and 497 or the other sections of the Code.
(iii) The first and the last sentences of Section 498 are clearly ancillary or subsidiary to Sections 496 and 497 in that they work out the provisions of those, last mentioned sections and it is rather curious, to say the least, that the Legislature would introduce a far reaching provision confering on, the High Court and the Court of Session a wholly new and independent power for granting bail which is contrary to the etymological meaning of the term "bail" in a sort of parenthesis sand, which between two provisions with which it baa nothing to do and which two provisions are clearly ancillary or subsidiary to Sections 496 and 497.
(iv) The words "direct any person to be admitted to bail" may well have been used in B. 498 only to make it clear that the formalities at taking the bail bond on the execution of which, the release would follow are not to be the concern of the High Court or the Court of Session,, but are to be the duties of the police officer or the Court as the case may be and on this construction those words mean in effect nothing more than a direction for release of the person after taking the bail bond. This construction will make the whole Section 498 ancillary or subsidiary to Sections 496 and 497 as they have been stated to be by the Judicial Committee.
(v) The words "admit to bail" have also been used in Section 500 which clearly contemplates that the person who is admitted to bail is in custody and, therefore one cannot attach any special significance to the use of those words as distinguished from the words '"released on bail" occurring in the other sections,
(vi) To accept the interpretation of 8. 498 contended for by learned Counsel for the petitioners will lead to obvious anomalous results. Suppose the sureties are or subsequently become insufficient, is the person, who had never been arrested but to whom anticipatory bail had been granted, to be brought under arrest as provided in Section 501 ? Again suppose the surety of a person who has been given anticipatory bail desires to be discharged and such person is unable to find a new surety, is snob, person who had never been arrested before to be arrested Under Section 502 ?
(i) I have been referred to a plain copy of a judgment of Blacker J, of the old Lahore High Court delivered on 19th October 1943 in Criminal Miscellaneous No, 748 of 1943. The correctness of the copy has not been disputed before me. The reasonings set forth in that judgment appeal to me more than those set forth in the recent Full bench decision of the new Lahore High Court.
(j) In Johur Mull's case: 10 C. W. N. 1093 the Magistrate had issued non-bailable warrants against the petitioners and they applied for bail before they had surrendered. Issuing of a non-bailable warrant may be treated as imposing a certain amount of restraint. Further learned standing counsel in his argument did not raise the question that the petitioners not having surrendered the Court had no power to grant bail Under Section 498. Finally the Court regarded Section 498 as conferring on it some kind of revisional power to revise the order of the Magistrate. This decision cannot, therefore, be regarded, as was done by the Lahore Full Bench, as an authority supporting the proposition that 8. 498 has conferred on the High Court an independent and unusual power to grant anticipatory bail.
6. For all the reasons stated above and those Stated in Blacker J.'s judgment I am doubtful about the correctness of the Lahore Full Bench deoieion relied on by learned Counsel for the petitioners. I realise that some such power to grant anticipatory bail may be useful and desirable but the Court cannot arrogate to itself such power if the Legislature has not thought fit to give such power to the Court. As I have said this is an important question and should be decided by a Full Bench. I accordingly refer the following question to a Full Bench :
Whether 8. 498, Criminal P.C. empowers the High Court or the Sessions Court to grant bail to a person who has not been placed under restraint by arrest or otherwise,
7. Let the matter be placed before me at an early date for constituting the Full Bench. The interim bail to continue until the decision of the Full Bench.
Opinion of Fall Bench.
8. The following question has been referred to the Full Bench by the Hon'ble the Chief Justice:
Whether Section 498, Criminal P.C. empowers the High Court or the Sessions Court to grant ball to a person who hag not been placed under restraint by arrest or otherwise.
9. The reference arose out of a petition for bail made by Amir Chand and Raghunath Das against whom a report alleging offences punishable under sb. 7 and 10, Essential Supplies (Temporary Powers) Act had been made. The essential facts are that on 15th June 1949 a report was made alleging that the two petitioners were partners of a firm known as the National Iron & Steel Works and that they had been guilty of offences punishable Under Sections 7 and 10 of the above mentioned Act by (1) selling six black sheets of iron to one Prem Nath. The memorandum signed by Prem Nath showed that spades and not sheets had been sold; (2) selling a num. ber galvanised iron sheets to one Kartar Chand who later assembled them into trunks. The memorandum showed that steel trunks, and not sheets had been sold; and (3) by selling eight pieces of iron bars to Ganpat Bai-Hari Singh of Eaithal as tonga axles.
10. It is admitted that the police had been making enquiries before the report was reoorded but no warrants for the arrest of either of the petitioners bad been taken out, nor had the police taken any other steps to apprehend them. The petitioners on 17fch June 1949 applied to the Ilaca Magistrate for bail in anticipation of arrest. On 19th June 1949, the Ilaca Magistrate refused to grant bail. The petitioners then moved the District Magistrate and he, too, reject, ed the bail application on 27th June 1949. A petition for bail was then filed in this Court on 1st July 1949 and this came up before the Hon'ble the Chief Justice sitting singly. The question of what was called "anticipatory bail" was raised on behalf of the petitioners and a recent decision of the Lahore High Court reported as A.I.B (36) 1949 Lah. 77 : Pak. L. B. (1949) Lah. 65 F.B. was relied upon. The Hon'ble the Chief Justice being of the opinion that the matter should be heard and decided by a larger Bench referred the above mentioned question to this Full Bench:
11. The casa for the petitioners was argued by Mr. Tek Chand whose arguments may be briefly analysed as follows: (1) The notion of bail does not presuppose previous custody or restraint and therefore, a person, who is still at large and for whose arrest no warrants have been issued may lawfully be admitted to bail; and (2) The provisions of Section 498, Criminal P.C. invest the High Court and the Court of Session with very wide powers in respect of bail; and these powers are far more extensive than the powers conferred upon Magistrates Under Sections 496 and 497, Criminal P. C; therefore, a High Court or a Court of Session can allow bail even in cases which are not covered by the provisions of the two preceding sections. Therefore, a person who apprehends arrest may be admitted to bail,
12. I propose to examine these contentions separately. First, as to the meaning and implication of the word "bail". Mr. Tek Chand contended that the etymological meaning of "bail" did not necessarily contemplate release from custody or restraint. The word "bail" is derived from the old French verb "ballier" which meant, according to "Webster's New International Dictionary "to give" or "deliver". According to the Shorter Oxford English Dictionary the word "bail" is related to the Latin "bajulare" meaning "to carry" or "manage". It later came to mean "to be guardian". To give or to deliver implies a giver or a deliverer and in this sense baillier presupposes some form of previous custody or restraint or at any rate possession. And as there can be no giving delivering ex evauo, the expression "to bail" can only be used in reference to a person in prison or in custody. Idiom is, however, frequently divorced from etymology and we have to consider in what sense the word "bail" has been used when employed in legal phraselogy, and as we are considering an English word the safest course is to examine the sense in which the word has been used in English Law Courts. One of the meanings given in the New Oxford Dictionary is "temporary delivery" or "release from prison". Whartons' Law Lexicon explains "bail" as "to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail, because the party arrested -or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required in order that he may be safely protected from prison, to which they have, if they fear his escape etc., the legal power to deliver him," Strud's Judicial Dictionary explains ''bail" as follows:
Bailee, is when a man is taken or arrested for felony suspicion of felony, indicated of felony or any such case, so that lie is restrained of hia liberty. And having by law bailable, offereth surety to those which have authority to bails him, which sureties are bound for him to the Kings use in a certain sums of money, or body, for body, that he shall appear before the Justices of Baole-delivery at the next Sessions, &c." This definition is taken from "Termesda la lay.
13. Therefore, we see that the oldest and logical conception of "bail" in forensic phraseology means release from custody or prison and delivery into th9 hands of sureties who undertook to produce him in Court upon an appointed day. The only case which Mr. Tek Chand wag able to cite before us is B. v. Wren (1886) 5 Dowl 222 mentioned in the English and Empire Digest, Volume 14, at No. 1403. The entry is brief to the point of being laconic :
The Court will not allow a deft, who is out of custody, to be bailed before a Magistrate in the oountry, but he must surrender in Court in order to be bailed.
Mr. Tek Chand frankly admitted that he was not able to lay his hands on any other instance arising in the English Courts of Law. Where a person had been admitted to bail without surrendering himself or without being subjected to arrest or restraint. Turning our attention to the provisions of Indian Law on the subject of bail we observe that an examination of the sections in chapt. 39, Criminal P.C. which deals with the question of bail will immediately show that any other conception of '"bail" would be wholly illogical and would do great violence to the terms of the sections following 8. 498. Section 499 deals only with the liability of a person released on bail and his sureties, Section 500 provides that as soon as the bail bonds are executed the accused person shall be released. The previous restraint or arrest of the bailed person is, therefore, presumed. Under Section 501, the Court has power to issue a warrant for the arrest of the bailed person where the securities accepted are insufficient or afterwards become insufficient. This section also provides that if the bailed person fails to furnish satisfactory sureties he may be committed to jail, Section 502 deals with the contingency when the sureties wish to be dicharged from their liability in respect of the bailed person. The sureties may apply to a Magistrate to discharge the bond and "on such application being made, the Magistrate shall issue his warrant of arrest directing that the person" released be brought before him. The Magistrate may then shall upon the bailed person to furnish other sufficient sureties and if be fails to do so may commit him to custody.
14. A person against whom a report of an offence has been made is no doubt an accused person within the meaning of Sections 496 and 497, Criminal P.C. but until the police arrest him or obtain a warrant for Mb arrest it cannot be said that the accused person has been subjeoted to any restraint. A High Court or a Court of Session has no power to arrest such an accused person upon its own initiative, and if such a person is admitted to bail very illogical and indeed absurd consequences will follow if, (a) the sureties are found to be insufficient (b) the sureties afterwards become insufficient, or (c) the sureties wish to have their bonds discharged. The Court will then be compelled to order the arrest and commitment to jail of a person who is not liable to be arrested or jailed. Moreover, it is to be observed that bail is a form of restraint, in that the person bailed out is under an obligation to appear before the Court whenever called upon and his sureties also accept the liability of not producing him. Before such bail the person was at liberty and the Court in allowing what has been called "anticipatory bail" in this judgment will be imposing unjustifiable and uncalled for restrictions upon a free subject. This argument is none the less forcible because the petitioner himself asks to be put under restraint. Mr, Tek Chand cited the case of a person who may be sent to protective custody. In my view, however, there is no analogy between the two cases and it is not in every case that the Courts will arrest a person and remand him into protective custody on his own petition. For instance, a person can. not go to a Police officer and ask him to take him into custody merely because he apprehends danger to Mb person from someone else, nor would a Court be justified in sending a man to jail because he anticipates some danger by re. maining at large. The provisions of chap. 39, Criminal P.C. are not intended to cover oases of this nature, and a reading of this Chapter leaves no doubt whatsoever in my mind that the whole object of Sections 496 to 502, Criminal P.C. is to remove or lessen the degree of restraint placed upon a person by the process of law rather than subject him to such restraint. I am there. fore, clearly of the opinion that according to the judicial practice and judicial authority bail can only be allowed to a person who is either in prison or in custody. Any other notion of bail would lead to illogical and in some cases absurd results.
15. I now proceed to examine the provisions of Section 498, Criminal P.C. in order to determine if the High Court of the Sessions Court has been given wider powers than those contemplated by Sections 496 and 497, Criminal P.C. Section 496 deals with the granting of bail to "a person accused of a non-bailable offence", When such a person is arrested or detained without a warrant by an officer-in-charge of a police station, or appears or is, brought before a Court, such person shall be released on bail. Section 497 deals with a person accused of any non-bailable offence. This section provides that when such a person is arrested or detained without warrant, or appears or is brought before a Court, he may be released on bail. It provides further that no bail can he granted if there are reasonable grounds for believing that such a person has been guilty of an offence punishable with death or transportation for life. There are two further provisions contained in this section. A person under the age of sixteen years or a woman of a sick or infirm person may be admitted to bail even if there are reasonable grounds for believing that the person has been guilty of an offence punishable with death or transportation for life. Lastly, if during the in-vestigation of a case or during the inquiry or trial it appears that there are not reasonable grounds for believing that the accused person has committed a non.bailable offence, but that there are sufficient grounds for further inquiry into his guilt the accused shall be released on bail.
16. The provisions of these two sections may, therefore, be analysed in the following manner:
A. Bailable offence ...
The accused person must be admitted
B. Non-bailable ofienoes :
(1) The offence is not punishable with death or transportation for life.... The accused person may be admitted
(2) There are no reasonable grounds for believing that the person is The accused may be released on bail.
guilty of an offence punishable with death or transportation for life.
(3) There are reasonable grounds for believing that the accused is guilty of an offence punishable with death or transportation for life. The accused shall not be released
(3a) There are reasonable grounds for believing that the accused person May be released on bail.
is guilty of an offence punishable with death or transportation for life but he is under sixteen years of age, is a woman or is sick or infirm.
(4) There are no reasonable grounds for believing that the accused per- The accused person shall be released
son has committed a non-bailable offence but there are sufficient on bail.
grounds for further inquiry into his guilt.
17. The above analysis covers the oase of all accused persons before they are brought to trial or convicted. The case of convicted persona is dealt with Under Section 426, Criminal P.C.
18. The question now arises whether Under Section 498, Criminal P.C., the powers of a High Court or of a Sessions Court are wider and more extensive and if such powers can be employed to grant bail to persons whose oases do not fall under the items A and b noted above. One obvious instance would be the case of a convicted person and if the High Court or the Sessions Court has unlimited powers in the matter of granting bail, as has been held in some authorities, it must of necessity follow that a convicted person can be admitted to bail under the provisions of Section 498, Criminal P.C. It is, how. ever, clear that B. 498 does not confer any such powers. A recent decision of their Lordships of the Privy Council has left no doubt whatsoever on this question, In Jairam Das v. King-Emperor I. L. R. (1945) 26 Lah, 57 : A.I.R. (32) 1945 F. 0. 94 : 46 Or. L, J. 662, it was laid down that a High Court has no power under the provisions of tbe Code of Criminal Procedure to grant bail to a person who has been convicted and sentenced to imprisonment by the High Court. Their Lordships observed that chapter 39, Criminal P. 0,, together with Section 426 is and was intended to contain a complete and exhaustive statement of the powers of a High Court to grant bail. The provisions of Section 498, Criminal P, C, were examined in detail and their Lordships observed that the High Court could not grant bail to a convicted person Under Section 498, Criminal P. G, and that the only provision in the Code which refers to the grant of bail to a convicted person was to be found in Section 426. It was further observed :
It truth, the scheme of Chapter 39 Is that Sections 496 and 497 provide for the granting of bail to accused persona bafore trial, and the other sections of the Chapter deal with matters ancillary or subsidiary to that provision.
This dictum of their Lordships of the Privy Council is binding upon this Court. I can think of only two other possible cases not covered by Sections 496 and 497, Criminal P.C. (1) The accused person does not appear before the Court, and (3) there are reasonable grounds for believing that the accused person is guilty of an offence punishable with death or transportation for life, and the- question is whether in either of these two instances the High Court or the Court of Session can grant bail. Mr. Tek Chand argued that according to the provisions of Section 498, Criminal P.C. the High Court or the Court of Session may in any case direct that any person be admitted to bail. He sought to support his argument with the words (a) "in any case" and (b) "direct that any person be admitted to bail" and his contention was that these words contemplated the conferment of wide and unrestricted powers in the matter of bail on the High Court and the Court of Session. He sought to distinguish the Privy Council oaseon the ground that their Lordships of the Privy Council were only considering the oase of granting bail to a convicted person and the decision in Jairam Das V-King-Emperor, I. L. R. (1945) 26 Lab. 57 : A.I.R. (32) 1945 P.C. 94 : 46 Cr.L.J. 662 did not interpret Section 498 in so far as it dealt with the oases of persons under trial or before they were brought to trial. He contended that the principle laid down in a case could not be extended beyond the limit imposed by the facts of that particular case and as the question of granting bail to an accused person who had not even been arrested by the police was not in contemplation, therefore, it could not be said that in respect to such persons also the provisions of Section 498, were merely ancillary or subsidiary to the provisions of Sections 496 and 497. This argument, however, will at once, be seen to be specious, and it is clear that their Lordships of the Privy Council examined the provisions of Section 498, Criminal P.C. and came to the considered conclusion that this section does not confer any powers upon the High Court or the Court of Session beyond the powers conferred by Sections 496 and 497. A minor qualification must be added to this statement. The High Court or the Court of Session has power to reduce the bail required by a Police officer or a Magistrate, but this power is ancillary and subsidiary to the provisions of Sections 496 and 497, and to that extent only is the power of the High Court or the Court of Session wider than the power of a Magistrate in the matter of bail.
19. The ease of a person who does not appear in Court or who has not so far been arrested has been considered in a few cases. In Emperor v. Mohammed Panah A.I.R. (21) 1934 sind 131: 36 Cr.L.J. 711, a Division Bench of the Sind Chief Court considered the case of a person admitted to bail before his arrest. An accusation of non-bailable offences alleged to have been committed by Mahommed Panah had been made but, before Mahammad Panah was arrested, an order admitting him to bail was passed on his application. The Judicial Commissioners observed that such an order was not warranted by law and "the first step which must be taken by any person who wishes to be admitted to bail is to appear before the Court and to surrender." The matter was not considered in further detail as the order of bail was vacated by the learned Judge who had passed it, but the observation quoted above contemplates that there can bu no bail unless the conditions contemplated by S 497, Criminal P.C. are fulfilled. The matter again arose in Emperor v. Abubakar Muhamad Baksh A.I.R. (28) 1941 Sind 83 ; 42 Cr.L.J. 703, and a Division Bench of the Bind Chief Court held that Section 497, does not authorise and was not intended to authorise the grant of bail by anticipation to person who are not arrested or detained. In this case bail was allowed first by the District Magistrate and then by the Additional Sessions Judge. The order of the Additional Sessions Judge granting bail was held to be improper and set aside.
20. Our attention was also drawn to the -decision of Munir J., of the Lahore High Court in Ehwaja Nazir Ahmad v. Crown Criminal misc. No. 192 of 1943. In that case, the Crown had announced its intention of arresting Khwaja Nazir Ahmad at the earliest opportunity and had further stated that it would not object to bail after be was arreBted. Khwaja Nazir Ahmad presented himself before the Court and expressed hia willingness to be arrested. The Crown, however, refused to arrest him. Munir J., on considering the matter came to the conclusion that the circumstances cast doubt on the motives of the police, and so in order to prevent an unnecessary prosecution of Khwaja Nazir Ahmad, he had recourse to the inherent jurisdiction of the Court in granting anticipatory bail. The application of Khwaja Nazir Ahmad was made Under Section 561.A, Criminal P.C. Their Lordships of the Privy Council in Jai Narain Das v. King-Emperor I. L. R. (1946) 26 Lah. 67 : A.I.R. (32) 1945 P. O. 94 : 46 Cr.L.J. 662, have clearly laid down that 8. B61-A of the Code does not confer any powers with regard to bail upon the High Courts. The decision of Munir J. therefore, does not help the petitioners before us because, (a) Munir J., was not interpreting the provisions of Section 498, Criminal P.C. in granting anticipatory bail to Khwaja Nazir Ahmad, and (b) the decision of Munir J., cannot now be considered sound in view of the Privy Council decision.
21. The question of anticipatory bail came up before a learned Judge of the Lahore High Court in Criminal Misc. no. 743 of 1943 in circumstances somewhat similar to those of the cage before us. Blacker J., in refusing bail discussed the question in some detail and came to the conclusion that, (a) bail could only be granted if the person to be bailed was in police custody or some form of restraint, (b) the granting of anticipatory bail was repugnant to the provisions of Sections 600 and 502, Criminal P.C. and (c) to grant bail under the provisions of Section 661-A, Criminal P.C. would be a gross misuse of that section. With great respect, I entirely agree with the reasoning upon which the decision of Blacker J, is based.
22. The last case is the Full Bench decision of the Lahore High Court in Khan v. The Crown A.I.R. (36) 1949 Lah. 77 : pak. L.B. (1949) Lah. 65 P. B. In this case a Full Bench of the Lahore High Court held:
In a proper case, the "High Court has power Under Section 498 to make an order that a person, who is suspected of an offence for which he may be arrested by a police-officer, or a Court, shall be admitted to bail,
Cornelius, J,, who wrote the leading judgment in the case considered the dictum laid down by their Lordships of the Privy Council in J air am Das and others v. King-Emperor I. L. R. (1945) 26 Lah. 57 : A.I.R. (32) 1945 P.C. 94 : 46 Cr.L.J. 662, and sought to distinguish the case. The conclusions arrived at by the learned Judge, however, are in direct conflict with the Privy Council decision. The learned Juge took the view that the expression ''release on bail" is not synonymous with "admit to bail", and he further held that the powers of the High Court under B. 498, Criminal P.C. are very wide because the phraseology of B. 498 employs the expressions "in any case" and "direct that any person be admitted to bail". With great respect to the learned Judge, I find myself in complete disagreement with the reasoning set out in his judgment. I do not consider that the use of the expression "in any case" widens the powers of the High Court or the Court of Session, "In any case", in my view means "in any of the cases falling Under Sections 496 and 497," i. e., the various items under the heads A and B set out in the earlier part of my judgment. If the inter, pretation placed upon the expression "in any case" by the Hon'ble Judges of the Lahore High Court be correct, then the case of a convicted person would also be covered by 8. 498, and such an interpretation would be in direct conflict with the dictum laid down by their Lordships of the Privy Council. Nor can any assistance be borrowed from the expression "direct that any person be admitted to bail." To admit to bail is synonymous with release on bail. In 8s. 427 and 500, Criminal P.C., the expression "admit to bail" has been employed in reference to a person in custody, In a number of English statutes the expression "admit to bail" has been employed in a similar sense, e. g., by B. 5, Sub-section (2), Coroners Act, 1887, coroners may "admit to bail persons charged with manslaughter," and by the Municipal Corporations Act, 1882, Section 227, a borough constable "may admit to bail persons charged with petty misdemeanours and brought into his custody." I cannot take the view that the expression "admit to bail can only be used in allowing bail to a person who is not under any form of arrest. Again, by using the expression "direct that any person be admitted to bail" the Legislature meant nothing more than to say that in the cas6 of a High Court or a Court of Session the order of bail will be executed by a subordinate Court. It was not intended that the power to grant bail should be enlarged or extended. With great respect to the Hon'ble Judge of the Lahore High Court I am constrained to say that the reasoning upon which their decision was based does not appear to me to be sound.
23. I shall now consider one or two other cases in which it was held that Section 498, Criminal P.C., conferred upon the High Court and the Court of Session wide and unrestricted powers in no way handicapped by the restrictions mentioned in Sections 496 and 497, Criminal P.C. In Kripa Shankar v. Emperor A.I.R. (35) 1948 ALL, 26 : 48 Cr.L.J. 941, Malik J., sitting singly held, that the powers conferred by Section 498, Criminal P.C., were not handicapped by the restrictions in B. 497. The learned Judge merely followed a Pull Bench decision of the Allahabad High Court in K. N. Joglekar v. Emperor A.I.R. (18) 1981 ALL. 504 : 54 ALL. 115 : 33 Cr.L.J. 94 F. B.. This latter decision was given before the Privy Council decision in Jairam Das's case A.I.R. (32) 1945 P.C. 94 : 46 Cr. L J. 662, and before Malik J. the Privy Council decision does not appear to have been cited. In the Allahabad Full Bench case the learned Judges were considering the case of a person charged under para. 2 of Section 121A, Penal Code, and came to the conclusion that a Sessions Judge or a High Court was empowered to grant bail even to a person when there were reasonable grounds for believing that he had been guilty of an offence punishable with death or transportation for life. This was no doubt the view before the decision in Jairam Das's case A.I.R. (32) 1945 P.C. 94 : 46 Cr.L.J. 662 and cannot now be accepted as sound law. In re Johus Mull, 4 Cr.L.J. 221 : 10 C. w. N. 1093, all that a Division Bench of the Calcutta High Court held was that an accused person ought to be released on bail until reasonable grounds are made out on the evidence for believing him to be guilty. The learned Judges did not lay down that Section 498, Criminal P.C. conferred powers greater than those conferred by Section 497 although they appear to have done so. In Emperor v. Erishan Oopal A, I. R. (20) 1933 Lah. 925 : 35 Cr.L.J. 294, it was held by Bhide J. of the Lahore High Court that Section 498 gave a much wider discretion to grant bail to the Court of Sessions and the High Court than that given to subordinate Courts by 8. 497, and that 8. 498 was not controlled by limitations of Section 497. In this case an accused person charged with offence punishable Under Section 302 / 109, Penal Code, and Section 307 / 109, Penal Code, was admitted to bail on the ground that his case was considered to be on the border line. Apart from the fact that this decision id anterior to the Privy Council decision in Jairam Das's case A.I.R. (32) 1945 P. o. 94 : 46 Cr.L.J. 662 the learned Judge did not come to the conclusion that there were reasonable grounds for believing the accused to have been guilty of an offence punishable with death or transporation for life, and, therefore, it cannot be said that powers in excess of those conferred by Section 497 were exercised in the matter of bail.
24. The provisions of 8. 498, Criminal P.C.,. fall into three parts, namely, those dealing with (a) the amount of bail required, (b) the power of the High Court and the Court of Session to grant bail, and (c) the power of the High Court and the Court of Session to reduce bail, (a) and (c) are clearly seen to be ancillary and subsidiary to Sections 496 and 497, and it cannot be said that they go beyond the restrictions imposed by those sections. It is strange that Part (b), interposed between two ancillary and subsidiary provisions, should contain substantive and startlingly wide provisions. It is as if the Legislature had, in passing and quite by the way said something important and wholly unrelated to the general tenor of Section 498. Had the Legislature intended to confer these extraordinary powers on the High Court and the Court of Session it could have done so by making provisions for them in a separate section, and to interpret this section as-connoting the conferment of extraordinary powers upon the High Court and the Court of Session, would be doing great violence to its terms.
25. A review of the case law dealing with the subject leaves no doubt that the Courts in India were in the past under some misapprehension with regard to the meaning of 8. 498, Criminal P.C. The matter has now been set at rest by the recent decision of the "Privy Council." A reading of chap. 39, Criminal P.C. also leads to the only logical conclusion that 8. 498 does not extend the powers of the High Court or the Court of Session in the matter of granting bail except to this extent and this extent only that either of these Courts may reduce the bail required by the police officer or the Magistrate, just as under the provisions of Sub-section (6) of Section 497 a High Court or Court of Session may cancel the bail granted by a subordinate Court and commit the accused to custody. This latter power can be exercised either by the Court granting the bail or by the High Court or the Court of Session when bail has been granted by another Court.
26. My conclusions may now be briefly summarised. The very notion of bail presupposes some form of previous restraint. Therefore, bail cannot be granted to a person who has not been arrested and for whose arrest no warrants have been issued. Section 498, Criminal P.C., does not permit the High Court or the Court of Session to grant bail to anyone whose case is not covered by Sections 496 and 497, Criminal P.C. It follows, therefore, that bail can only be allowed to a person who has been arrested or detained without warrant or appears or is brought before a Court. Such person must be liable to arrest and must surrender himself before the question of bail can be considered. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be allowed if he appears in Court and surrenders himself. No bail can be allowed to a person at liberty for whose arrest no warrants have been issued. The petitioners in the present Case are, therefore, not entitled to bail. The question referred to the Pull Bench is, therefore, answered in the negative.
27. The Case will now go before the Honourable the Chief Justice for orders.
Harnam Singh, J.
28. I agree.
29. I agree, but as the matter is of some importance I would like to add my own opinion.
30. I have to rule as a matter of law whether a person who is not under arrest or against whom no warrant of arrest has been issued, but against whom an accusation has been made in a first information report of having committed a non-bailable offence can come to the Court and ask for what has been termed 'anticipatory bail' and for this purpose it is necessary for me to construe the following words of Section 498 "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." I am not going to say anything in regard to the meaning of the words "in any case." This expression has been construed by my learned brother Khosla J. with whom I am in full concurrence, but because the matter is of some importance I would like to add my own opinion with regard to the interpretation of the words "admitted to bail" occurring in Section 498.
31. The learned Counsel for the petitioners Mr. Tek Chand has addressed a great deal of argument before us and has submitted that these words "admitted to bail" in 8. 498 would confer wider powers of bail on a High Court or a Court of Session and this wider power would contain a power to admit a person to bail when he is not already under some kind of restraint. I am not considering in this case the powers of the High Court in regard to persons who are accused and then arrested for an offence punishable with death or transportation for life but my judgment is confined to the facts of this case where the sole point is whether the High Court has the power to give bail in anticipation of arrest.
32. Section 498 runs as follows : "The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High Court or a Court of Session may, in any case, whether there to an appeal on conviction or not, direct that any person be admitted to built, or that the hail required by a police officer or Magistrate be reduced."
It is obvious that the first portion of the section deals with fixing of the amount of bail according to circumstances of the case and the last portion deals with the powers of the High Court or Court of Session to reduce the bail required by a police officer or a Magistrate. These two portions are clearly ancillary to Sections 496 and 497, Criminal P.C. The controversy arises in regard to the middle portion which allows the High Court or the Court of Session to direct that any person be admitted to bail.
33. A reference to tbe Privy Council case Jairam Das v. King-Emperor I.L R. (1945) Lah, 57 : A.I.R. (32) 1945 P.C. 94 : 46 Cr.L.J. 662 shows that this is also ancillary and subsidiary. At p. 66 their Lordships have observed :
Two things must be observed in relation to this-section. The only bonds executed under this Chapter are executed by persons who are accused (not convicted person); and the words "whether there be an appeal on conviction or not" merely qualify or relate to the words "in any case" and only mean that all accused; persona ate within the section whether their case is appealable on conviction or not. In truth, the scheme of Chap. 39 is that Sections 496 and 497 provide for the granting of bail to accused persona before trial, and the other sections of the chapter deal with matters ancillary or subsidiary to that provision,
The meaning of this passage, as I read it, 13 that Chap. 39 is a complete and exhaustive Statement of the powers of a High Court to grant bail before trial and in this Chapter gs. 496 and 497 provide for granting of bail to the accused and the other sections in the Chapter are merely ancillary and subsidiary.
34. The learned Counsel submits that the words "direct that any person be admitted tc bail" confer a very wide power on the High Court and he contends that as in the previous sections which deal with the powers of the Magistrate the words used are 'released on bail' the words used in Section 498 which I have quoted above must necessarily mean something else and for this argument reliance is placed on a Pull Bench judgment of the Lahore High Court, Hidayat Ullah v. Sher Nawab A.I.R. (36) 1949 Lah. 77 : Pak. L. B. (1949) Lah 65 F. B.,
35. In spite of the weighty authority of the Lahore Court I am unable to accept the submission of the learned Counsel. The words "admitted to bail" are not anything new. In England the Indictable Offences Act, 1848 (It and 12 Victoria, chap. 42, 8. 29) the words used are "admitted to bail." The section says :
Where any person shall appear or be brought before a justice of the peace charged with . . , ., such justice of the peace, may in his discretion admit such person to bail....
Again it is laid down :
No justice or justices of the peace shall admit any person to bail for treason nor shall such person be admitted to bail except by order of His Majesty's Secretaries of State.
In the Criminal Appeals Act of 1907, (7 Edw. VII, Chap. 23, Section 14(2)) similar words have been used:
The Court of appeal may, if it thinks fit, on the application of an appellant, admit the appellant to bail pending the determination of his appeal.
And 1 do not find any other expression used in English Statutes. If the contention of the petitioner is correct then during the centuries of the existence of the English Courts and administration of law by them, there must have been some cases in which a person who is not in custody was released on bail. No cases other than B. v. Wren. (1836) 5 Dowl 222 has been quoted before us and I have not come across any myself. Nor baa it been shown that the expression 'admitted to bail' which has been used in English Statutes since the year 1848 has ever meant releasing on bail of persons who are not under some kind of restraint.
36. The only English case we have been referred to purporting to show bail to person not under restraint is B. v. Wren (1836) a Dowl. 222 which is given in vol. 14 of the English and Empire Digest p. 168 No. 1403 where it is stated that the Court will not allow a defendant who is out of custody to be bailed before a Magistrate in the country but he must surrender in Court in order to be bailed. Unfortunately, the report is .not available and therefore the full facts cannot be ascertained from this almost cryptic digesting of the report but what I can conclude from even this cryptic statement of the law is that if a person who is not in custody has to be bailed by the High Court for this portion deals with the powers of the High Courtthe Court will not allow the bail before a Magistrate in the country but would admit the accused to bail on his surrendering in Court. We cannot presuppose that the High Court was allowing what is being termed "anticipatory bail."
37. The words out of custody in my opinion -do not refer to a person who is a free citizen as in the case now before us. This view finds sup. port from the rule stated in Archibold's Criminal Pleadings at page 73 where it is stated with regard to bail by the High Court:
The Court may in its discretion direct a prisoner to be admitted to bail before a justice of the peace, where it would be inconvenient to bring the prisoner and his bail before the Court or Judge in town, see also B. v. Jones 106 E. E. 77; 'or, on just cause being shown, to order that a party not in custody shall be admitted to bail surrendering to a warrant.
38. Under the rules made in England the Court of appeal or a Judge thereof acting as such can admit to bail a person who appeals, and after such an order has been passed the Registrar notifies to the appellant and the governor of the prison within which he is confined the terms and conditions on which the Court shall admit the appellant to bail under the Act. Recognizance of the person to be admitted to bail and of the sureties is then taken and they are forwarded to the Registrar of the Court, who on being satisfied that the recognizances of the appellant and his surety are in due form and in compliance with the order of the Court admitting the appellant to bail send a notice to the governor of the prison in which the appellant is confined and for the governor such notice is a sufficient authority to release the appellants from custody.
39. A reference to the .form of recognizance of bail to be entered into in England and the bond and bail bond used in India under the Criminal P.C. Ben. v. which are very similar also shows that they are not applicable to a person who is absolutely free and not already in some kind of custody.
40. I have given the rules of the English Court to show what is exactly the significance of the use of the words "admitted to bail". It only means that the person who is applying for bail is permitted to furnish security and is released only when he has furnished security to the satisfaction of an authority appointed by law to receive the bonds. In my opinion, therefore, the use of the words "direct that any person be admitted to bail" would not justify the assumption that they are to be interpreted as permitting a person to allow the High Court to put him under restraint, because bail is a form of restraint (as I shall show in a later part of this judgment) and that at a time when the person applying is for the moment at any rate an absolutely free man. If I may say so, it would be an absurd position that the Court should put a person under restraint when be is a free man and there is no charge against him excepting perhaps something contained in the first information report which may or may not be sufficient for the apprehending of that person, I cannot imagine that the Code could have conferred any such power on the Court.
41. If we go to the sections following a. 498 and refer to Sections 500,501,502 and fi03 we find these sections give the power to the Courts to have a person who has been released on bail, brought before the Court on warrant of arrest, and if he is unable to give sufficient security he can be committed to jail. To my mind this would be an intolerable position that although a person was quite free when be came to Court he should be put in jeopardy of arrest and of the commitment to jail although no charge may have been levied against him or he might never have been arrested or on interrogation he might have been able to prove to the satisfaction of the police officer, who was going to arrest him, that as a matter of fact he had not committed any offence lor which he eouid be arrested.
42. A reference to the law in England also -shows that the position there is the same. Describing the nature of bail in England, it is stated in Criminal Pleadings by Archibold that bails are sureties taken by a person duly authorised for the appearance of an accused person at a certain day and place to answer and be justified by law; Dalton 6. 166 pt. 2. The defendant is placed in the custody of his bail; who may reseize him (l Hale 124) and if they have reason to suppose that he is about to fly they may tiring him before a Justice who will commit the prisoner in discharge of the bail B. v. Butche Peak 3rd Edition, 226. Any attempt to rescue him from their custody is illegal. This shows that the person asking for bail must be under ome form of restraint before he can be bailed out, because it is different to conceive of the ire-seizure of a person when he is absolutely free and of his committal to prison when the surety apprehends his absconding for that is how I read the words "commit the prisoner in discharge of the bail".
43. Bail in a case of treason or felony is discretionary as well in the case of a misdemeamour. But refusal or delay by any Judge or Magistrate to bail any person bailable is at common law an offence against the liberty of the subject (4 Bl. com. 297). It is also a violation of the Habeas Corpus Act, 1679 (31 Car. 2 C. 2) and of the Bill of Eights 1689 (1 w. & M. 2 C. 2) Now the fact that not enlarging a person on bail would be an offence against the liberty of the subject or the Habeas Corpus Act or the Bill of Bights would presuppose such a person having his liberty already curtailed and would not be applicable in the case of a person who is a free man but who apprehends that he may be arrested for some offence. As a matter of fact, the putting of such a person on bail would bo putting him under restraint because ha is liable to seizure and committal to prison which itself may amount to an offence against the liberty of the subject because it is possible that after proper investigation such a person may never be arrested and no case may ever be disclosed against him.
44. All these considerations, which I have mentioned above lead me to the conclusion that a person who is not already under some kind of restraint cannot be put under restraint by being enlarged on bail and that the Court contains no such provision where by what is being termed "anticipatory bail" can be given.
45. I would, therefore, concur with my learned brother Khosla J. in answering the question in the negative.