STATE Vs. SHYAMLAL

JUDGEMENT

(1.) THIS is a reference under Section 438 of the Code of Criminal Procedure. The facts of the case out of which this reference has arisen are briefly as follows: Hirachand and others presented applications to the railway magistrate, Lashkar, that they had come to know that the police were trying to implicate them in some false case and arrest them. Hence, explanation be asked for from police and the applicants be admitted to bail. The railway magistrate asked for explanation from the police and released all the three applicants on bail of Rs. 2,000/-, with a surety of Rs. 4,000/- each. Against this order a revision was filed by the Government in the court of the sessions judge, Gwalior. The learned Sessions judge being of the opinion that the order of the lower court was improper has made this reference to set aside the order.

(2.) THE question for consideration in this case is whether a person, who is not under any restraint, can apply for what is known as anticipatory bail. Section 497 states that when any person accused of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, he may be released on bail, etc. The section, no doubt lays down that a person accused of any non-bailable offence, who appears before a court, may be released on bail. The question for determination is "does the section contemplate that a person is to be released when he appears before a court even though he is under no restraint?

(3.) THE word 'bail' is defined in Wharton's Law Lexicon as follows: 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. In Stroud's Judicial dictionary 'bail' is described as follows: 'bailc' is when a man Is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to baile him, which sureties are bound for him to the King's use in a certain sum of money, or body for body, that he shall appear before the Justices of Gaole-delivery at the next sessions and c. Then upon the Bonds of these Sureties, as is aforesaid he is bailed, that is to say, set at liberty untill the day appointed for his appearance. Both these definitions make it amply clear that it is only when a person's liberty is restrained that he is released on bail, that is, delivered into the hands of those, who stand surety for him. Apart from the dictionary meaning of the word 'bail' a perusal of chapter XXXIX of the Code of Criminal Procedure, which deals with the subject-matter of bail, leads one to the same conclusion. Section 500 enjoins that as soon as the bond has been executed a person, for whose appearance it has been executed shall be released. Section 501 requires that if insufficient sureties have been accepted through mistake, fraud or otherwise or if afterwards they become insufficient, the court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties and on his failing so to do, may commit him to jail. Similar provisions are found in Section 502, under which all or any of the sureties may apply to the magistrate to discharge the bond. All these three sections indicate that a person is to be released from some custody and where sureties are found to be insufficient or where they become insufficient or where the sureties desire to discharge their bond, a person released is to be committed to the custody again. This lends support to the view that a person can be released on bail only when he is placed under some restraint.