STATE OF MAHARASHTRA Vs. HASAN MOHAMMAD JUMMAN MIYAN

JUDGEMENT

(1.) ON the 10th December 1950, Kodiaya. Ramiya, Suriya and Raghiya were, according to the police, found gambling in the Arambha bazar, Waraaeoni Tahsil, Balaghat district, and the constable on duty who had seized the gambling articles was taking them with those persons to the police-station. On the way there, he was set upon by Kondiaya and others who removed the flash and other articles and took to flight. Offences under Sections 332, 342 and 392, Penal Code were registered and investigation began. Kondiaya, Ramiya, Suriya and Raghiya were in due course arrested and released on bail on 15th December 1950 by the First Class Magistrate, Waraseoni.

(2.) ON 19th and 22nd December 1950, remands were asked because a 5th person said to have teen involved in the incident was absconding. Remand was accordingly granted until 27th December 1950, but 4 days previously Mohammad Hasan appeared through his counsel before the Magistrate and filed an application for bail. The Magistrate did not apprise the police of this or make any other enquiries and directed the release of Mohammad Hasan on bail. He also ordered the issue of a memorandum to the station officer, Rampaili, intimating that Mohammad Hasan had surrendered and had been released on bail. Thereafter, the Public Prosecutor, Balaghat, filed an application for the revision of the order re-leasing Mohammad Hasan on bail; and the Sessions Judge, Chhindwara, has now reported the case under Section 488, Criminal P. C. with a recommendation that the magisterial order, dated 23rd December 1950, be set aside.

(3.) THE non-applicant's learned counsel, in the course of arguments, referred me to the Full Bench case of Hidayat Ullah v. The Crown A. I. R. (36) 1949 Lah. 77 in which it was held that 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. That case was considered by a Fall Bench in Amir Chand v. Emperor A. I. R. (37) 1960 Bast Punj. 53 and dissented from. The decision of a Division Bench in Emperor v. Abubakar A. I. R. (28) 1941 Sind 83 to the effect that Section 497 does not authorise and was not intended to authorise the grant of bail by anticipation to persons who are not arrested or detained was approved.