LAWS(MPH)-1963-3-2

STATE OF MADHYA PRADESH Vs. NARAYAN PRASAD JAISWAL

Decided On March 16, 1963
STATE OF MADHYA PRADESH Appellant
V/S
NARAYAN PRASAD JAISWAL Respondents

JUDGEMENT

(1.) THIS reference arises out of a revision petition against an order dated 21st september 1962 of the Additional District Magistrate of Seoni upholding an order of the first class Magistrate, Seoni, granting anticipatory bail to Narayan Prasad jaiswal in a case registered against him in respect of offences under Sections 324, 452, 294, and 506 (second part) I. P. C. on a report made in Seoni - Poilce Station by one Komal Singh on 19th July 1962.

(2.) THE report of Komal Singh was to the effect that a few days prior to 19th July 1962 he had accompanied the Excise Sub-Inspector when he seized some liquor from a jeep-car of Narayan Prasad; and that on account of this Narayan Prasad bore a grudge against him and on 19th July 1962 caught hold of him in the mahakoshal Garailthily abused him, attacked him with a dagger and also threatened to kill him. On 21st July 1962, Narayan Prasad presented an application before the Second Class Magistrate styling it as one "in the matter of grant of amicipatory bail under Section 496 Cr. P. C. ", stating therein that on a report made by Komal Singh a case has been registered against him by the Police under Section 324 and 452 I. P. C. , that he was a respectable citizen of Seoni owning considerable property, that there was no danger of his absconding or leaving the jurisdiction of the Court, and praying that he be released on bail. Narayan Prasad appeared in person before the First Class Magistrate, Shri Arya, when the application was taken up for disposal after notice to the Police. The learned Magistrate perused the Police diary and observed that-" it is evident from the case diary that the accused is suspected of the commission of an offence. At this stage it would be too premature to conclude for what particular offence the accused would be charge-sheeted. Hence at present I am to be guided by the matter as it stands at present. A consideration of the facts constituting the First Information report is of paramount importance in ascertaining the nature of the offence alleged to have been committed by the accused and such consideration leads to the conclusion that the accused at present can at the most be said to be guilty of the offences falling within the ambit of sections 324 and 294 I. P. C. Both these offences are bailable. " he then overruled the objections made by the Police Prosecutor to the grant of bail and ordered that "in the matter of the offence registered in the Station House, seoni, as Crime No. 172 on the basis of the report of Komal Singh, the accused narayan Prasad is granted ban of Rs. 500/-with one solvent security in the like amount" (sic ). A copy of this order was-sent by the Magistrate to the Station house Officer, Seoni, for information. The State then preferred a revision petition in the Court of the Additional District Magistrate, Shri Acharya, contending that as a matter of law "anticipatory bail" could not be granted to Narayan Prssad and even if it could be there were no valid grounds for enlarging Narayan Prasad on bail. The learned Additional District Magistrate rejected the revision petition taking the view that according to the decision in Abdul Karim Khan v. State of Madhya pradesh, AIR 1960 Madh Pra 54 anticipatory bail could be grantees in suitable cases, and agreeing with the reasons given by Shri Arya, First Class Magistrate, for releasing Narayan Prasad on bail. Thereupon the State filed the revision petition giving rise to this reference. When the revision petition first came up for hearing before our learned brother naik J. , he formed the opinion that on the question of anticipatory bail, which was of Sequent occurrence, conflicting views have been expressed by this Court in State v. Hasan Mohammad, AIR 1951 Nag 471 and AIR 1960 Madh Pra 54 and that it was, therefore, necessary and desirable that the question should be authoritatively determined by a Division Bench of this Court, In AIR 1951 Nag 471 hemeon J. approved the decisions in Amir Chand v. The Crown, AIR 1950 EP 53 and Emperor v. Abubakar, AIR 1941 Sind 83 and held that Section 491 did not authorize the grant of bail by anticipation to persons who were not arrested or detained and that it could not be granted to a person who was at liberty and under no form of restraint whatever when he applied for enlargement on bail. In AIR 1960 Madh Pra 54 Khan J. , following the reasoning which he had given in State v. Mangilal, AIR 1952 Madh-B 161 ruled that anticipatory bail could be granted to a person accused of or suspected of the commission of an offence on his appearance in Court in person or through a counsel. He distinguished the decision in AIR 1951 nag 471 (supra) by pointing out that it was given before the Criminal Procedure code was amended in 1956 and that the addition of the words "or suspected of the commission" in Section 497 by the Criminal Procedure Code (Amendment) Act (No, 26 of 1955) had the effect of widening the powers of the Court in the matter of grant of bail and made it very clear that anticipatory bail could be granted to a person who had not been actually arrested and on whom no restraint of any hind had been put and who was merely suspected of the commission of any offence.

(3.) THE question, which we are required to determine, has not been formulated in the order of reference, but it can be comprehensively stated thus-" whether under Sections 496, 497 and 498 Cr. P. C. bail can be granted to persons who have not yet been arrested for any actual charge of any offence or even on suspicion of their complicity in any offence but who apprehend that they would be arrested as persons accused of or suspected of the commission of an offence. " it was on this question alone that arguments were addressed before us by the learned counsel appearing for Narayan Prasad and by the learned Government advocate. The contention that was put forward on behalf of the State was that under none of the Sections 496, 497 and. 498 bail could be granted to any person who was not under arrest or under custody; that having regard to the meaning of the word 'bail' admission to bail or release on bail necessarily and essentially implied the substitution or the custody of the detaining authority by the control of the surety into whose hands the person bailed out was delivered; that the appearance of a person in Court, even if voluntary, could not give any power to the Court to grant bail to the person in anticipation of arrest; and that the words "or suspected of the commission of" inserted in section 497 by the amending Act of 1955 did not in any way override the meaning of the word "bail" and 'enlarge the power of the Court in the matter of grant of bail and the words "in any case" end "any person" used in Section 498 Cr. P. C. had not the effect of giving to the high Court or to the Court of Sessions any powers to admit any person to bail irrespective of the fact whether he had or had not been arrested and put under restraint at the time of applying for bail. The argument of the learned Government Advocate followed the reasoning given in Mohd. Abbas v. Crown, AIR 1950 Sind 19, AIR 1950 EP 53, AIR 1951 Nag 471, Muzafaruddin v. State of Hyderabad, AIR 1953 Hyd 219, State v. Dallu Punja, AIR 1954 Madh-B. 113, Juhar Mal v. State, air 1954 Raj 279 State of D. P. v. Kailash, (S) AIR 1955 All 98, Amjad v. State, (S) AIR 1955 Cal 141 and Public Prosecutor v. Manieya Rao, AIR 1959 Andh Pra 639. Learned Government Advocate instanced the difficulties that the Police would have to experience in investigation if a person accused of or suspected of the commission of an offence were to be released by making an anticipatory order of bail to the effect that if the Police arrests him, he should at once be admitted to bail in such and such sum and with such and such sureties.