STATE Vs. DALLU PUNJA

JUDGEMENT

(1.) THIS is a criminal reference under Section 29 (b) of the High Court of Judicature Act Section 2005. The Additional Sessions Judge, Mandleshwar made a reference under Section 438, Criminal P. C. recommending that the order of anticipatory bail passed by the Sub-Divisional Magistrate Khargone on 22-C-1951 be set aside. The reference was placed for hearing before my brother Mehta J. During the course of arguments his attention was drawn to a recent decision of my brother Khan J. in - 'state T. Mangilal' AIR 1952 Madh-B 161 (A), in which he held that anticipatory bail can be granted. Mehta J. being of the opinion that anticipatory bail cannot be granted under Section 497, Criminal P. C, has made this reference to a Pull Bench under Section 29 (b) of the High Court of Judicature Act.

(2.) THE question referred to the Full Bench is AS follows: Whether Section 497 of the Criminal P. C. empowers the Magistrate or the Court of Session and the High Court to grant bail to a person who is not placed under a restraint by arrest or otherwise. The powers of the High Court and the Court of Session to grant bail are governed by Section 498 of the Criminal P. C. Consequently although the order of reference makes mention only of Section 497, Criminal P. C. , it obviously refers to Both Sections 497 and 498, Criminal P. C.

(3.) SECTION 497 (1) of the Criminal P. C. runs as follows: 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, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life: Provided that the Court may direct that any person under the age of sixteen years or any women or any sick or infirm person accused of such an offence be released on bail. It is urged that the word "appears" used in Section 497 (1) is susceptible of being construed as appearance by a pleader and consequently even if the accused is not under any restraint he can be released on bail. We have to examine how far this argument is tenable. Section 497 contemplates grant of bail when a person accused of any non-bailable offence is under arrest or detention or when he appears or is brought before a court. That when a person is arrested or detained or is brought before a court is under a restraint admits of no doubt. The only word that presents some difficulty is the word "appears". The words "arrested" and "detained" are used to signify arrest and detention by a police officer in cognizable offences. The expressions "appears" and "is brought" are used to signify appearance and arrest in obedience to a process of the Court.