STATE Vs. NARAYAN PRASAD

JUDGEMENT

(1.) THE question of anticipatory bail is of frequent occurrence, and there is a divergence of opinion on the point in this Court. In The State v. Hasan Mohammad,, AIR 1951 Nag. 471 Hemoon J., approving the decisions in Amirchand v. Emperor,, AIR 1990 EP 53 and Emperor v. Abubakar,, AIR 1941 Sind 83 held that anticipatory bail could not fee granted. On the other hand, Khan, J. In Abdul Karim Khan v. The State of Madhya Pradesh, : 1959 JLJ 480: AIR 1960 MP 54 held that anticipatory bail could be granted and that the decision of Hamoon J. supra was distinguishable. I am, therefore, of opinion that it is both necessary and advisable that the question is authoritatively determined by a Division Bench of this Court.

(2.) I accordingly propose that the papers be laid before Hon'ble the Chief Justice for nominating a Division Bench to resolve the conflict.

(3.) LEARNED Counsel appearing for Narayan Prasad, on the other hand, urged that the wordings of Sections 496, 497 and 498 enable the Court to exercise the power of granting bail to a person accused of or suspected of the commission of an offence even when he is not brought before the Court after arrest but is free and voluntarily appears complaining that in all probability the Police, prompted not by motive of furthering the ends of justice in relation to any case but by some ulterior motive and in order to disgrace and dishonor him, intend to arrest him; and that the Court Is entitled to exercise this power even when no warrant has been issued for the arrest of the person and without even causing the person to be formally arrested. It was said that the words "or suspected of the commission of" were Inserted by Act No. 26 of 1955 in Section 497 with the object of enabling the Court to grant "anticipatory ball", and that the expressions "in any case" and "direct that any person be admitted to ball" in Section 498 plainly indicated that bail could be granted to any person who was not in custody or was not required to surrender to any custody but who apprehended arrest. Learned Counsel commended to us for acceptance the reasoning given by Khan J. in Abdul Karim Khan v. State of M. P., : 1959 JLJ 480. A reference was also made to the decision of this Court in The State of M. P. v. Bhagwat Sao,, 1963 JLJ SN 62, where Golvalker J. has expressed his agreement with the view taken by Khan J. in Abdul Karim Khan's case (supra).