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Criminal Appeal No. 12 of 1951, decided on 27th March 1953.
(On appeal from the order of the High Court of Judicature at Lahore, dated the 14th December 1950, in Criminal Miscellaneous No. 722 of 1950).
‑
Words‑Diversity of‑Does not necessarily involve substantial difference in meaning.
A diversity of terminology does not necessarily involves subs tantial difference in meaning.
Liversidge v. Sir John Anderson 1941 A C 206 ref.
S. 498‑Bail‑Not possible unless applicant in custody or under some form of restraint.
A person cannot be admitted to bail against whom a report has been lodged at the police station but who has not been placed in custody, or under any other form of restraint, or against whom no warrant for arrest has been issued. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be granted under section 498 if he appears in Court and surrenders himself.
Section 498 does not in any way enlarge the categories of parsons to whom bail can be granted under Chapter XXXIX. This necessarily leads to the inference that such persons must be under custody before they can be given any relief by the High Court or the Court of Session.
Under sections 496 and 497 an accused person can be released on bail. This presupposes that the accused person is under some sort of restraint. If section 498 is ancillary or subsidiary to sections 496 and 497 it cannot be said that this section empowers the highest Court to grant bail to persons who have not been put under any restraint whatever. If this were so, the ancillary and subsidiary section would be enlarging the powers granted to the Courts under the principal sections, namely, 496 and 497. It is difficult to hold that the Legislature would embody in a subsidiary or ancillary section a provision which deals with persons other than those who fall within the purview of sections 496 and 497. If section 498 were given the wide interpretation envisaged in the case of Hidayat Ullah Khan, section 498 would not be ancillary or subsidiary, but would be wholly independent of the powers con ferred on the High Court or the Court of Session by sections 496 and 497.
The basic conception of the word "bail" is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. This is the meaning which has been given to the word "bail" in Standard English Dictionaries as well as in Wharton's Law Lexicon and Stroud's Judicial Dictionary. This is also borne out by the form of bond and bail bond given Schedule V of the Cr. P. C. This basic conception of the meaning of the word "bail" has not been adverted to in the Full Bench judgment in the case of Hidayat Ullah Khan.
Hidayat Ullah Khan v. The Crown P L R (1949) Lah. 65=P L D 1949 Lah. 21 overruled.
Muhammad Abbas v. The Crown P L R 1949 Kar. 95= P L D 1950 Sind 80, Lala Jai Rain Das and others v. The King Emperor 72 I A 121 and Amir Chand v. The Crown A I R 1950 East Pb. 53 ref.
S. 498‑Powers not merely of revisional character but concurrent with Court of first instance.
The powers of the High Court under section 498, are not merely revisional but are concurrent with those of the Court of first instance.
Muhammad Abbas v. The Crown P L R 1949 Kar. 95=P L D 1950 Sind 80 ref.
M. Sleem, Senior Advocate, Federal Court (Ghias Muhammad and Muhammad Ismail Bhald, Advocates, Federal Court, with him) instructed by Ijaz Ali, Attorney for Crown.
Qalandar All Khan, Advocate, Federal Court, instructed by Muhammad Siddiq, Attorney for Respondent.
Dates of hearing : 4th, 5th and 6th March 1953.
This appeal raises the important question whether a High Court or Court of Sessions can grant bail to any person against whom a report relating to a cognizable offence has been lodged with the police, but who has not been taken into custody. There is a divergence of judicial opinion on the question, and it is desirable that this conflict should be resolved.
On the 14th of November 1950, Khushi Muhammad respon dent presented a petition in the Court of the Sessions Judge, Lahore stating that one Mian Muhammad Sadiq had reported to the Police Station Khudian that his daughter Mst. Mumtaz Begum had been taken away by the petitioner and four others on the 16th October and the police were investigating the case. According to the petitioner the real facts were that Muhammad Sadiq had betrothed his daughter to the petitioner and had provided him with accommodation in his own house. He was living with Muhammad Sadiq as a member of the family and as a would‑be khanadamad. After Muhammad Sadiq had fixed a date for the marriage of the petitioner with his daughter, he gave away the daughter in marriage to another person who belonged to a faction inimical to the petitioner. In order to institute a false case against him Muhammad Sadiq had made a report against the petitioner under section 366 of the P. P. C. The petitioner, a respectable man, apprehended that he would soon be taken into custody by the police. In these circumstances, it was prayed that the petitioner "may be released on bail pending investigation and trial if any." This petition was disposed of by the Sessions Judge in a brief order the next day. This order is in the following terms :‑
"This is an application on behalf of Khushi Muhammad for bail in anticipation of his possible being arrested for the offence punishable under section 366, P. P. C. His learned Advocate has argued that the case against him will prima facie be a week one, but that is not enough for the grant of an order of this nature. He entirely failed to satisfy me that if the petitioner were to be arrested and refused bail, such an order would in all probability be made not from motives of furthering the ends of justice in relation to the case, but for the some ulterior motive and with the object to injure the petitioner, or that the petitioner would in such an eventually suffer irreparable loss. I, therefore, reject this petition."
After his petition had been dismissed by Sessions Judge, Khushi Muhammad waited for a fortnight and then presented a petition in the High Court the contents of which are practically identical with the petition presented by him in the Court of the Sessions Judge. The petition in the High Court was accompanied by several affidavits. This petition was heard by Mr. Justice Kayani on the 14th December. He made the following order :‑
"Mr. Qalandar Ali Khan for the petitioner : Mr. Abdul Aziz Khan, A. G. for the Government.
He has brought to my notice a Full Bench case of East Punjab A I R 1950 East Pb. 53, (Amir Chand v. Crown) and a Division Bench case, P L D 1950 Sind 80 (Muhammad Abbas v. Crown) which have taken a contrary view to P L R (1949) Lah. 65 (F B). In view of the Full Bench decision of this Court, however, I would accept this petition and direct that if it is intended to arrest him, he should be released by the District Magistrate if a bail bond is furnished to his satisfaction."
Against this decision, a petition for special leave to appeal to this Court was presented by the Advocate‑General, Punjab, on the 20th December 1950. We granted leave on the 14th February 1951.
Mr. Justice Kayani has based his decision on the judgment of a Full Bench of the Lahore High Court in the case of Hidayat Ullah Khan v. The Crown (P L R (1949) Lah. 21). It is, therefore, necessary to examine this decision with care. The question formulated by the Full Bench was as follows :‑
"Where the High Court can grant any relief, and if so what, to a person seeking an order for bail, in anticipation of his arrest for an offence "
This question was answered in the affirmative, and it was held that in a proper case, the High Court had power under section 498, Cr. P. C. 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. Tire reasoning of the Full Bench has been summarised in a comparatively short passage which runs as follows :‑
"The language employed by the draftsman in the second clause of section 498 is of a nature both exact and comprehensive which calls for careful appreciation for its due interpretation. The words which are relevant in the present discussion are :‑
"The High Court may, in any case, direct that any person be admitted to bail."
"The use of these words in section 498, which is clearly a section intended to supplement and complete the provisions of sections 497 and 498 (probably section 496 is meant) justifies the belief that the power given includes a power to revise the exercise of discretion by public officers and Courts of first instance where bail has been refused, in the different classes of cases specified in section 497, in regard to the question whether or not a person shall be released on a bail (the discretion to fix the amount of bail which falls to be exercised under sections 496 and 497 is revisable, but for the purposes of reduction only, as seen above). But the words employed are wider than are necessary merely for giving a revisionary jurisdiction to the High Court over such acts of police officers and Magistrates; they include clearly a power in the High Court to grant bail to person to whom the police and the Courts of first instance are not permitted by section 497 to grant bail, namely persons who are not under sixteen years of age or of the female sex or sick or infirm, against whom there appears a reasonable ground for believing that they have been guilty of offence punishable with death or transportation for life. And finally, there is significance to be attached to the use of the expression "direct that any person be admitted to bail" which must be distinguished from the expression used elsewhere in sections 496 and 497 via., "released on bail". It must be supposed that by these two different expressions, different things are meant .."
"As I have pointed out above, the High Court has power to "direct that any person be admitted to bail", and giving these words their full weight, I see no escape from the conclusion that the power extends not only to the grant of bail to persons who are in the custody of the High Court or of an inferior Court or a police officer, but also includes a power to give directions that persons should be admitted to bail who are not in custody."
It is clear from the quotations given above that in the opinion of the learned Judges of the High Court the words "direct that any person be admitted to bail" occurring in section 498 of the Cr. P. C. confer a much wider power on the High Court than is conferred by sections 496 and 497. It has been observed that as the words "released on bail" are used in section 497 and the words "admitted to bail" occur in section 498 different things must be meant as different expressions have been employed. With the utmost respect to the learned Judges, it does not appear to me to follow necessarily. that a diversity of terminology involves substantial difference is meaning. In this connection, reference may be made to the following observations of Lord Macmillan in the well known case of Liversidge v. Sir John Anderson (1941 A C 206) :
"I must not omit to notice the appellant's argument founded on the contrast between the opening words of the regulation in conferring the power of detention on the Secretary of State and the words used elsewhere in the regulations when other powers of an admittedly discretionary character are conferred on him and on others. The argument is that where different words are used a different meaning is intended. The argument by contrast is of little assistance in the present instance, for the regulations have observed no uniformity of language. Lord Blackburn, the Blackburn, J., once said that you ought "never to change the form of words unless you are going to change the meaning, and it would be as well if those who are engaged in the prepara tion of Acts of Parliament would bear in mind that that is the real principle of construction. But, "he went on to say, In drawing Acts of Parliament the Legislature, as it would seem, to improve the graces of the style and to avoid using the same words over and over again constantly changes them" ;
"Hadley v. Perks. The regulations before your Lordships certainly exhibit a remarkable diversity of terminology. Thus I find the following expressions used with relation to various powers confided to various persons : "If it appears to the Secretary of State" : If the Secretary of State is satisfied" ;
"if he considers it necessary" ; "Where it is shown to the satisfaction of" : "reason to believe." More intensive study of the regulations would probably disclose further variations in language where there is no substantial difference in meaning and effect. The argument that when the regulations mean different things they use different language and when they mean the same thing they use the same language breaks down, regret able as this must be to the drafting purist."
An examination of the terms of sections 496, 497 and 498 indicates that they constitute a complete code for the grant of bail to accused persons as distinguished from convicts. Section 496 of the Code deals with the granting of bail to persons accused of bailable offences who are arrested or detained without warrant by an officer in charge of a police station or are brought before a Court. It is laid down that such persons shall be released on bail, but if the Court thinks fit, instead of taking bail from them, such persons may be discharged on their executing bonds without sureties for their appearance. Section 497 deals with non‑bailable offences and authorizes the Court to release accused persons on bail with the qualification that such persons shall not be released on bail if there are reasonable grounds for believing that they are guilty of offences punishable with death or transportation for life. An exception has, however, been made in the case of persons under the age of sixteen years or any woman or any sick or infirm person accused of an offence punishable with death or transporta tion. The words in this section throughout are "The accused person may be released on bail." Subsection (4) deals with the granting of bail to an accused person after the conclusion of the trial and before judgment is delivered. Subsection (5) authorizes the Court to order the arrest of a person who has been released on bail and provides that he may be committed to custody. Then follows section 598 on which reliance is placed on behalf of the respon dent. It authorizes the High Court or Court of Session to admit a person to bail in any case. In their decision in the case of Lala Jairam Das and others v. King‑Emperor (72 I A 121) their Lordships of the Judicial Committee have made the following observations in respect of section 498 :‑
"The only granting of bail which is referred to in that Chapter XXXIX (which consists of sections 496 to 502 inclusive) is the granting of bail to accused persons. There is no reference therein to the granting of bail to persons who have been tried and convicted. It is true that in the Indian decisions section 498 seems to have been treated as though it included cases in which persons already convicted were concerned ; but any such view seems to their Lordships to be misapprehension based on a mistaken reading of a few words which occur in that section. The Section runs thus :‑"498. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High Court or the Court of Session may, in any case, whether there be an appeal pan conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced."
"Two things must be observed in relation to this section. The only bonds "executed under this chapter" are executed by persons who are accused (not convicted) persons; and the words "whether there be an appeal on conviction or not" mere ly qualify or relate to the words "in any case," and only mean that all accused persons are within the section whether their case is appealable on conviction or not. in truth, the scheme of Chap. XXXIX is that sections 496 and 497 provide for the granting of bail to accused persons before trial, and the other sections of the Chapter deal with matters ancillary or subsidiary to that provision."
It appears to me to be obvious from the above observation that section 498 does not in any way enlarge the categories of persons to whom bail can be granted under Chapter XXXIX. This necessarily leads to the inference that such persons must be under custody before they can be given any relief by the High Court or the Court of Session.
Under sections 496 and 497 an accused person can be released on bail. This presupposes that the accused person is under some sort of restraint. If section 498 is ancillary or subsidiary to sections 496 and 497 it cannot be said that this section empowers the highest Court to grant bail to persons who have not been put t3 under any restraint whatever. If this were so, the ancillary and subsidiary section would be enlarging the powers granted to the Courts under the principal sections, namely, 496 and 497. It is difficult to hold that the Legislature would embody in a subsidiary or ancillary section a provision which deals with persons other than those who fall within the purview of sections 496 and 497. If section 498 were given the wide Interpretation envisaged in the case of Hidayat Ullah Khan (supra), section 498 would not) be ancillary or subsidiary, but would be wholly independent of the powers conferred on the High Court or the Court of Session by sections 496 and 497.
In order to support the interpretation placed on section 498 of the Code in the case of Hidayat Ullah Khan (supra), Mr. Qalandar Ali Khan contended, on behalf of the respondent, that as soon as the respondent had made an application to the Court asking for grant of bail he had appeared before the Court and that such appearance must be regarded as a surrender to the custody of the Court. It was urged that, under the circumstances, he could be admitted to bail under the provisions of section 498 as he had appeared in Court under section 497. This argument of the counsel leads to extraordinary results. If a person who appears before the High Court under section 497, is taken to be in the custody of the Court merely because of his appearance, it is difficult to imagine what would happen to him if the Court rejects his application for bail. He appeared in Court as a free man. Is the Court bound to keep him in custody and send him to jail simply because it rejects his application If so, under what provision of the Code The failure of his application would therefore deprive a suspected person of his freedom. What is the Court to do with him is another difficult question He comes into Court protesting that he is innocent and there is no case against him. The Court decides not to accept his application for bail. He cannot be required to execute any bail bonds under the provisions of section 499 of the Code. It is clear, therefore, that the making of an application for bail and his presence in Court cannot be regarded as appearance under section 497 of the Code. In fact, in Hidayat Khan's case (supra) it was pointed out by the learned Judges of the High Court that nowhere in law was there to be found any warrant for the plea that a Court possesses any power to take into custody a person offering himself for the purpose if there be no justification for the Court to exercise the power of taking such person into custody. When a person appears before the High Court merely to present an application for bail, without any warrant for his arrest having been issued, he is not appearing in respect of any offence of which the High Court is taking cognizance at the time and his appear ance before the Court cannot be regarded as a surrender to custody.
It was urged by Mr. Sleem that "admitting to bail" is also placing a person under some form of restraint. Reference was made in this connection to section 308 of the Code where it is laid down that whenever the jury is discharged the accused shall be "detained in custody or on bail as the case may be." The word "detained" applies both to custody and to the enlargement of a person on bail. The grant of bail to accused person is merely the substitution of one type of restraint for another type of restraint. If through mistake, fraud, or otherwise, a person has been enlarged on bail on insufficient sureties, or if they afterwards 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. It is possible to conceive of cases where a person has unnecessarily applied for anticipatory bail and has been released on executing a bail bond with sureties. He might never have been arrested by the police but being released on anticipatory bail he has made himself liable to be committed to prison if his sureties become insufficient after bail has been taken. It may be that at one stage or another the surety of a person who has been given bail desires to be discharged and such person is unable to find a new surety. In these circum. stances, a person who would never have been arrested otherwise may be arrested and committed to prison. The provisions of section 498 of the Code cannot be interpreted in manner which lead to such absurd results.
The basic conception of the word "bail" is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. This is the meaning which has been given to the word "bail" in Standard English Dictionaries as well as in Wharton's Law Lexicon and Stroud's Judicial Dictionary. This is also borne out by" the form of bond and bail bond given in Schedule V of the Cr. P. C. This basic conception of the meaning of the word "bail" has not been adverted to in the Full Bench judgment in the case of Hidayat Ullah Khan (supra).
Reliance has been placed by the learned Judges of the High Court on the case of Johur Mull and others (10 C W N 1093). In that case there was a murder in Calcutta. Four persons were arrested on suspicion by the police and their cases were pending before the Second Presidency Magistrate. Meanwhile, Johur Mull and others were also suspected and non‑bailable warrants for their arrest were issued. Thereupon they made an application for bail in the High Court before they had surrendered. The only objection that was taken to the application by the Offg. Standing Counsel was that in murder cases ordinarily no bail should be taken. It was observed by Mitra, J. that ordinarily they did not allow bail in cases like the present, but they had power under section 498 of the Code to direct that any person should be admitted to bail in any case. This case is distinguishable as the issuing of a non -bailable warrant may be treated as imposing a certain amount of restraint on the accused. If the words "in any case" could be taken to include every accused person including a convict or a person who has not been taken into custody, there would have been no necessity to enact section 426 of the Code, or to insert subsection (2‑B) in section 426 which was done in 1945. A person who had been granted special leave to appeal to His Majesty‑in- Council could then be admitted to bail under section 498 on the ground that the words "in any case" cover the case of a convict who has preferred an appeal to His Majesty‑in‑Council.
It has been observed by the Lahore High Court in Hidayat Ullah Khan's case (supra) that it is conceivable to think of cases where credible information has been laid before a police officer that a certain person is guilty of a non‑bailable offence not punish able with death or transportation for life, that he is in the presence of the police officer at the time when information is received, and that in such a case there will be no contravention of anything contained in the Code if the police officer grants bail to such a person forthwith without going through the formality of arresting him. This observation seems to imply that the arrest of a person necessarily means the use of force against him in order to bring him under restraint by the police officer. Section 46 of the Code lays down that "In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action". In the case referred to above, there would be a submission to the custody of the police officer by word or action and the police officer could thereupon release the person on bail under section 169 or section 497 of the Cr. P. C. The police officer, in the circumstances, could act only under section 169 or section 497 which deal with release on bail and the word "release" necessarily implies freedom from some sort of restraint.
A brief reference may now be made to cases which have taken a view contrary to the one taken by the Full Bench of the Lahore High Court in the case of Hidayat Ullah Khan (supra). On the 19th of October, 1943 Mr. Justice Blacker delivered judgment in a case (Criminal Miscellaneous No. 743 of 1943) in which an application had been made by one K. S. Sobti that he be admitted to bail under the provisions of section 498 of the Cr. P. C. It was stated in the petition that the petitioner was in no sort of custody, nor was he under any form of restraint. It was pointed out by the Advocate‑General that the police had not yet even decided whether they will prosecute Sobti as there was a great deal of material to be sifted, and they were not certain whether the material would be sufficient for the prosecution of the petitioner. The learned Judge came to the conclusion that section 498 could not be availed of by any one who was not in custody and against whom no warrant for arrest had been issued. A Full Bench of the East Punjab High Court has held in Amir Chand v. The Crown (A I R 1950 East Punjab 53) that the very notion of bail presupposes some sort of previous restraint. Bail, therefore, could not be granted to a person who had not been arrested and for whose arrest no warrants had been issued. Section 498 of the Code did not permit the High Court or the Court of Session to grant bail to persons whose case was not covered by sections 496 and 497. The judgment of the Lahore High Court, in the case of Hidayat Ullah Khan (supra) the decision of Munir, J. (Now C. J.) in Khawja Nazir Ahmad v. The Crown (Cr. Misc. No. 592 of 1943), the, decision of Blacker, J., referred to above, and some authorities of the Sind Chief Court were discussed in great detail in this case. Reference was also made in the judgment of Kapur, J., to statute law in England and it was pointed out that in spite of the fact that the words "admitted to bail' had been uniformly used in English statutes there was no case which purported to show that bail had ever been granted to a person who was not under restraint.
The learned Judges of the Sind Court have also dealt with this matter in the case of Muhammad Abbas v. The Crown (P L D 1949 Kar. 95 = P L D 1950 Sind 80). It was pointed out in this case that it would be contrary to every judicial principle for a high Judicial authority to exercise a revisional power like that conferred by section 498 of the Code to interfere by giving directions in anticipation to a subordinate authority before the subordinate authority had exercised jurisdiction legally conferred upon it. The existence of a concurrent power in the High Court with that of the Magistrate in granting bail was negatived. It was pointed out that all persons who can be admitted to bail under Ss. 496 and 497 must be in the custody of the police or in the custody of the Court as otherwise the words "shall be released on bail" would have no meaning. It was also observed that where a person is admit ted to bail he has to execute a bond and his surety or sureties have to execute bail bonds and the time when the person released is re quired to be present before the Court is to be entered in those bonds. Various other entries have also to be made in the bail bond. such as, the offence with which the accused is charged, and the bail bonds are intended to secure the appearance of persons who have been arrested and whose presence is required by Court. The terms of these documents make it clear that they can only be executed by persons who are under arrest or in custody. It is unnecessary to examine all these authorities in detail as all of them rely to a great extent on the observations made by their Lordships of the Privy Council in the case of Jairam Das (supra) and on the basic conception that bail means a release of a person from one type of restraint, and his being handed over to the sureties which is another type of restraint.
After a careful examination of the provisions of sections 496, 497 and 498 of the Code. I have reached the conclusion that a person cannot be admitted to bail against whom a report has been lodged at the police station but who has not been placed in custody, or under any other form of restraint, or against whom no warrant for arrest has been issued. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be granted under section 498 if he appears in Court and surrenders himself. The powers of the High Court under section 498, are not merely, revisional as has been observed by Tyabji, C. J. in the Sind case, but are concurrent with those of the Court of first ff instance.
It may be said that it is desirable that the High Court should possess a power to enlarge a person on bail if it is the object of a police officer or other executive authorities to arrest him merely for purposes of harassment or humiliation. The remedy, however, lies with the legislature and the courts are not in a position to give any relief to such a person if there is no provision in law entitling them to admit him to bail. The follow ing observations of the Privy Council in the case of Jairam Das (supra) are relevant in this behalf :‑
"It may well be that the case of an appeal from a High Court to His Majesty in Council was not within the contempla tion of the framers of the Code. It may well be that a power to grant bail in such cases would be a proper and useful power to vest in the High Court. Their Lordships appreciate the propriety and utility of such a power exercisable by Judges acquainted with the relevant facts of each case, and (if exercised) with power to order that the bail period be excluded from the term of any sentence. But in their Lordship's opinion this desirable object can only be achieved by legislation."
For the reasons given above, I would allow this appeal, and set aside the order of Kayani, J., dated the 14th December, 1950, directing that if it is intended to arrest Khushi Muhammad he should be released by the District Magistrate if a bail bond is furnished to his satisfaction.
‑On the 20th October, 1950, one Muhammad Sadiq made a report at the Police Station Khudian, District Lahore, to the effect that the respondent, Khusi Muhammad, and four others had abducted his daughter Mst. Mumtaz Begum on the 16th of October, 1950. The police took up investigation and arrested the four others, who were subsequently released on bail. No effort at arresting the respondent Khusi Muhammad was, however, made at any time, but Khushi Muhammad became apprehensive and in anticipation of his possible arrest made an application before the Sessions Judge of Lahore, praying that he may be "released on bail pending investigation and trial, if any". The Sessions Judge refused bail and rejected his application on the 15th November, 1950. Khushi Muhammad thereupon made an application to the High Court of Judicature at Lahore, purporting to be one under section 498, Cr. P. C. for 'bail before arrest'. The High Court relying upon the Full Bench Decision in the case of Hidayat Ullah Khan v. The Crown (supra) allowed the application by order dated the 14th of December, 1950, and directed that "if it is intended to arrest him (applicant), he should be released by the District Magistrate, if a bail bond is furnished to his satisfaction". Against this order the present appeal by the Crown has been preferred with our leave.
Counsel for the appellant challenges before us the validity of the High Court order on the short ground that no bail can be granted unless the person seeking for it is under legal custody. In support he cites the cases of Muhammad Abbas and others v. Crown (supra) and Amir Chand and another v. The Crown (supra). His contention is that the view taken in the Full Bench case of Hidayat Ullah Khan v. The Crown is erroneous and cannot be given effect to. This case has been fully discussed and considered in the two cases mentioned above, in which a contrary view has been expressed and which has lard down that anticipatory bail is not permis sible under the law. I do not think it will serve any useful purpose to reproduce here the elaborate arguments contained in the judgments of these two cases. The decision to the effect that unless a man is under custody no question of bail can arise seems to me to be a correct decision on a proper construction of the relevant sections of the Code. The main argument advanced by counsel for the parties regarding the point under consideration was practically the same as in the cases referred to above. Learned counsel for the respondent urged before us, that the provision in section 498, Cr. P. C. "the High Court or Court of Session may, in any case direct that any person be admitted to bail.. ...", was wide enough to cover the case of a person not under custody : that the word appears' in sections 496 and 497 Cr. P. C., not being qualified in any manner, also conveys the same meaning: that the expression admitted to bail' in section 498 Cr. P. C. does not imply prior custody : that this interpretation would not in any way militate against the observation of their Lordships of the Judicial Committee in the case of Lala Jai Ram Das v. The King Emperor (supra) "that sections 496 and 497 pro vide for granting bail to accused persons before trial and the other sections of the chapter (Chapter XXXIX) deal with matters ancillary or subsidiary to that provision" that the scope of section 498 in no way gets wider than that of sections 496 and 497 in case these sections are construed in the manner suggested. But, one cannot take merely a single word out of a section regard less of its context and setting and then construe the section in the light of the natural meaning which the word ordinarily bears. A section should be construed as a whole keeping in view the manifest purpose for which it is enacted. The expression "be released on bail" which occurs in both sections 496 and 497 provides a clue as to the real meaning of the word 'appears' in those sections. "Be released on bail" pre‑supposes that the person must either be in actual custody or be liable to be taken into custody under a warrant of arrest already issued or ordered to be issued. In the latter events he must as a matter of course surrender before he can be released on bail. The word 'appears' therefore, must be limited in its meaning so as to apply only to the aforesaid persons. If this be correct then 'any person' in section 498 cannot be construed so as to enlarge the class of persons contemplated by sections 496 and 497. The expression "admitted to bail" in section 498 and 'released on bail' in sections 496 and 497 is obviously synonymous and to seek to deferential between the two would be an attempt to make a distinction without difference. The Code itself at times gives direc tions that persons arrested may be "admitted to bail" (see sections 62, 307 (2) and 500 of the Cr. P. C). In truth the word 'bail' signifies only a change of custody or control a change from to a rigour of police custody or jail custody to the mild control of private persons (the sureties) upon certain terms and conditions. In Chapter XXXIX of the Cr. P. C. which includes sections 496, 497 and 498 the heading given is 'Of Bail'. The contention therefore, of counsel for the respondent that a person under no sort of restraint and at full liberty to go anywhere he pleases, can be released or admitted to bail, does not appear to me to be a sound one. I do not think it is necessary to pursue this matter further as I fully agree in this particular respect with the decision in the cases of Muhammad Abbas and others v. The Crown and Amir Chand and another v. The Crown, and in the reasons given in support thereof. In my opinion neither section 498 nor any other section of the Cr. P. C. is applicable to the facts and circumstances of the present case. The order for bail dated the 14th December, 1950, must, therefore, be set aside as without jurisdiction.
‑This appeal raises the question whether under section 498, Cr. P. C., the High Court or Court of Session can grant bail to a person against whom information has been given to the police that he has committed an offence for which he may be arrested, but who has not yet been placed under restraint by arrest or otherwise.
The facts giving rise to this question are as follows. One Khushi Muhammad, applied to the Sessions Judge of Lahore on 15th November 1.950 for bail on the ground that one Muhammad Sadiq had complained to the police that his daughter Mst. Mumtaz Begum had been abducted by Khushi Muhammad and four others, while in fact the girl who was between 16 and 17 years of age had come away of her own accord because her father, having betrohed her to Khushi Muhammad, changed his mind and arranged to marry her to another person. The complaint to the police had been made on 20th October, 1950. The Sessions Judge dismissed the petition and Khushi Muhammad filed in the High Court, Lahore, a similar petition on the same grounds. The petition filed in the High Court came on for hearing before Kayani, J. who passed the following order
"He has brought to my notice a Full Bench case of East Punjab (A I R 1950 East Punjab 53, Amir Chand v. Crown and a Division Bench case P L D 1950 Sind 80 (Muhammad Abbas v. Crown) which have taken a contrary view to P L R (1949 Lab. 65 (F. B). In view of the Full Bench decision of this Court, however, I would accept this petition and direct that if it is intended to arrest him, he should be released by the District Magistrate if a bail bond is furnished to his satisfaction."
From this order the Provincial Government has appealed with the special leave of this Court.
By the time the petitioner came up to the High Court the other four persons against whom Muhammad Saddiq had com plained had been arrested, but they were released on bail after the petitioner obtained the order quoted above. There is nothing on the record to show that any effort was made to arrest Khushi Muhammad. On the other hand Mr. Qalandar Ali Khan appear ing for him stated at the outset that no further action was taken on the complaint and that therefore the question as far as the respondent was concerned had become academic ; but in view of its general importance we proceeded to hear the appeal and decide it on merits.
In Hidayat Ullah Khan v. The Crown (supra) on which the order in question was based, three petitions were considered by a Full Bench of the Lahore High Court. In each of these petitions it was alleged that the petitioner apprehended that criminal proceedings would be instituted against him and he would be arrested and that his arrest would amount to victimisation. The petitioners, therefore prayed that they might be granted bail. Cornelius, J. who delivered the judgment of the Full Bench formu lated the following question for decision.
"Whether the High Court can grant any relief, and if so what, to a person seeking, an order for bail, in anticipation of his arrest for art offence "
The Anwar given to this question by the learned Judge with whom the other learned Judges of the Full Bench agreed is as follows:
"In a proper case the High Court has power under sec tion 498, Cr. P. C., 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."
The principal argument addressed to the Full Bench on behalf of the Crown was that when sections 496 and 497 refer to a person who "appears before Court" the reference must be to a person who appears in compliance with a summons issued by the Court and to no other kind of appearance and that the action contemplated by the Code for the grant of bail is only action which has the effect of releasing a person from custody whether actual or threatened. The first part of this contention was accepted only to the extent that a voluntary appearance of a person before the Court did not entitle it to take him into custody for the purpose of exercising the power of granting; bail, and it was observed that it was reasonable to suppose that power of releasing a person on bail has been provided by the Code in rela tion to the power given by it for compelling his attendance. But the rest of the contention was repelled in the following words :‑
"This argument it appears to me fails to attach the necessary significance to the difference of the language employed by the Code in stating the powers of the High Court in regard to bail from that used in relation to the powers possessed in the same regard by police officers and Courts of first instances. As I have pointed out above the High Court has power to direct that any person be admitted to bail' and giving these words full weight I see no escape from the conclusion that the power extends not only to the grant of bail to persons who are in the custody of the High Court or of an inferior Court or a police officer but also includes the power to give directions that persons should be admitted to bail who are not in custody."
Earlier in the judgment with reference to the words the High Court may in any case direct that any person be admitted to‑bail' the learned Judge observed that these words must be distinguished from the expression release on bail' used in sections 496 and 497 and that it must be supposed that by these two different expressions different things were meant.
From these observations it is clear that the view of the learned Judges of the Full Bench, that bail can be granted even to a person who is under no form of restraint but only apprehends arrest, rests mainly on the ground that the words "direct that any person be admitted to bail" were intended to convey a meaning different from that of the expressions "release on bail" occurring in sections 496 and 497. But as pointed out by Mr. Sleem appearing for the Crown there is no real difference between "admit to bail" and "release on bail". These expressions have the same connotation and it is clear from several sections of the Code that they have been used therein to man the same thing.
In section 31 of the Cr. P. E. it is stated that whenever a person is arrested without warrant or by a private person under a warrant and cannot legally be admitted to bail or is unable to furnish bail the officer making the arrest or when the arrest is made by a private person the police officer to whom he so makes over the person arrested may search him. Here the expression admitted to bail clearly relates to the power of a police officer to release a person on bail. Section 62 requires officer in charge of police stations to report to the District Magistrate or if he so directs to the Sub‑Divisional Magistrate the cases of all persons arrested without warrant within the limits of their respective stations whether such persons have been admitted to bail or otherwise. The expression here obviously refers also to release on bail by the police officer and Magistrates. Then again section 500 states that as soon as the bond has been executed the person for whose appearance it has been executed shall be released and if he is In jail the Court admitted him to bail shall issue an order of release to the officer in charge of the jail. The reference here is to all Courts including Courts releasing persons on bail under sections 496 and 497. Section 426 (1) provides for the suspension of sentence pending appeal and the release of the appellant on bail if he is in confinement. This sub section applies to the High Court in respect of appeals from the Courts of Session and to Court of Session in appeals from Court subordinate to it. But the expression used is 'release on bail' and not 'admit to bail' whereas in section 427 the expression 'admit to bail' has been used in respect of all Courts. Under that section in an appeal presented under section 411‑A, sub section (2) or section 417 the High Court may direct the arrest of the accused and his production before it or any subordinate Court and the Court before which the accused is brought may commit him to prison pending the disposal of the appeal or admit him to bail. Similarly in section 563 (2) under which Courts other than High Courts and Courts of Session also can grant bail, the expression used is 'admit to bail'.
It is clear from these instances that expression 'admit to bail' and 'release on bail' have been used in the Code synonymously and that the expression 'admit to bail' has not been continued to the High Courts and Courts of Session but has been used also g in respect of police officers and Courts subordinate to the Courts of Session. No significance can therefore be attached to the words 'be admitted to bail' occurring in section 498.
Nor do the expressions 'any case' and 'any person' in section 498 justify the conclusion reached by the Full Bench of the Lahore High Court. These expressions, if taken literally, can be applied even to convicted persons, who want to be released on bail pending their appeal ; but section 426 specifically confers on the appellate Courts the power to release such persons on bail his indicates that these expressions were not intended to be taken in their literal meaning. Nevertheless, it was the view of some of the High Courts in India that convicted persons who had obtained from the Privy Council special leave to appeal as well as a direction to the High Court to deal with their applications for bail, could be released on bail under section 498. But Their Lordships of the Privy Council in Lala Jai Ram Das and others v. Emperor (A I R (32) 1945 P C 94) held that 'any person' in section 498 means only accused person and does not relate to convicted person and that as at that time section 426 did not make provision for the release on bail .of convicted persons who had been granted by the Judicial Committee special leave to appeal, such persons could not be released on bail by the
High Court but could only approach the Provincial Govern ment for relief under section 401. It was after this pronouncement that the Code was amended by the introduction of the present subsection (2) (b) of section 426, under which convicted persons who have obtained special leave to appeal to the Privy Council can be released on bail pending their appeal.
The observations made by Their Lordships in this connec tion are as follows :‑
"The question of bail is dealt with in part 9 of the Code ('Supplementary Provisions') under Chapter XXXIX which is entitled 'of bail'. The only granting of bail which is referred to in that Chapter (which consists of sections 496 to 502 inclusive) is the granting of bail to accused persons. There is no reference therein to the granting of bail to persons who have been tried and convicted. It is true that in the Indian decision, section 498 seems to have been treated as though it included cases in which persons already convicted were concerned ; but any such view seems to Their Lordships to be a misapprehension based upon a mistaken reading of a few words which occur in that section."
"Two things must be observed in relation to this section. The only bonds 'Executed under this chapter' are executed by persons who are accused (not convicted persons ; and the words 'whether there be an appeal on conviction of not' merely qualify or relate to the words 'in any case', and only mean that all accused persons are within the section whether their case is appeal able on conviction or not. In truth the scheme of Chapter XXXIX is that sections 496 and 497 provide for the granting of bail to accused persons before trial, and the other sections of the chapter deal with matters ancillary or subsidiary to that provision. The only provision in the Code which refers to the grant of bail to convicted persons is to be found in section 426."
"A consideration of section 426 reinforces the view that section 498 has no reference to convicted persons ; for, if they were covered by section 498, it would confer upon the Court of Session a power to grant bail to a convicted person appealing to the High Court, a power which under section 426 is confined to the High Court. Their Lordships feel no doubt that the Code confers no power on the High Court to grant bail in the case of convicted persons, and the fact that he has obtained leave from His Majesty‑in‑Council to appeal from his conviction or sentence makes no difference in this regard."
It is true that the question now under consideration was not before Their Lordships, but the importance of this decision lies in this that, even though there was no provision for releasing on bail a convicted person whom special leave to appeal had been given, and the utility of the High Court having power to release such persons on bail was fully appreciated, it was not possible to take the expressions 'in any case' and 'any person' in section 498 in their literal meaning owing to the context in which they are used. It may be said that as Their Lordships have observed that 'any person' means any accused person and as a person whom a complaint alleging an offence is made is also an accused person, bail under section 498 can be granted to hits. But their Lordships have also laid down that the principal sections relating to bail are 496 and 497 and the rest of the section in Chapter 39 deal with matters ancillary and subsidiary to sections 496 and 497. Under the latter two sections bail can be granted only to persons who are in some sort of custody and not to those who are at liberty. That being so, section 498 cannot be construed as applicable to persons who are under no restraint at all, for, if it is so interpreted it ceases to be a provision dealing with matters ancillary or subsidiary to sections 496 and 497. In my, opinion therefore the expressions, 'any case' and 'any person' occurring in section 498 refer only to persons coming under sections 596 and 497.
Mr. Qalandar Ali Khan appearing for the respondent argued that the appearance of a person before the High Court to ask for bail even when he is free amounts to his placing himself in legal custody. A similar contention was raised before the Full Bench by the petitioners in that case but Cornelius, J. repelled it observing as follows :‑
"Nowhere in law is there to be found any warrant for the belief that a Court possesses any power to take into its custody a person offering himself for the purpose if there be no justification in law for the Court to exercise the power of taking such person in custody."
I agree with this observation and I also agree with the further observation of the learned Judge in this connection that it is reasonable to suppose that the Code has provided for the grant of bail to persons in relation to the power it has given to Courts to compel their attendance. In the present case the respondent when he appeared before the High Court was under no restraint whatever. The police had not taken any action, nor was there anything to compel this attendance before a Court. There is therefore no substance in the con tention of the learned Advocate.
Apart from section 498 being ancillary to sections 496 and 497, I fail to see how, in view of the connotation of the term 'bail' a person who is under no restraint whatever can be released on bail. 'Bail' is not defined in the Code, but it is clear from its dictionary meaning and its definition in Wharton's Law Lexicon that it necessarily implies an existing custody. It is also clear that when a person is released on bail he is not altogether free but on the other hand passes into the custody of his sureties, in Foxhall v. Barnet (1854 L J New Series Vol. 23 p.7) a case for damages for false imprisonment cited by Mr. Sleem, Lord Coleridge observed : "the admitting to bail is only change of custody. The bail might have retaken him and sent him back to prison at any time". The same principles exist in the law applicable to this country. For instance, section 308 refers to bail as detention. It provides that when the jury is discharged the accused shall be detained in custody or on bail. Under sections 501 and 502, if the sureties are found to be insufficient or wish to be discharged the person released on bail becomes liable to be committed to prison unless he furnished the required security. I therefore consider that subjection to some form of custody is a condition precedent to the grant of bail.
In his judgment (page 79 of the report of the Full Bench decision) Cornelius, J. made the following observations:
"but it is clearly possible to conceive of cases in which a person against whom credible information has been laid before a police officer that he is guilty of a non‑bailable offence, not punishable with death or transportation for life, may be in the presence if the police officer at the time when the information is received and it seems to me that there would be no contravention of anything contained in the Code if the police officer, in a proper case, granted such person bail forthwith without going through the formality of arresting him. Be that as it may, I can see no ground for supposing that the power of the High Court under section 498 would not extend to the making of an order to such police officer to admit such person to bail."
In the example given in the above passage the police officer does not contravene the provisions of the Code, because the person complained against must have applied for bail and such action on his part amounts to submission to custody by word and action. But I am unable to agree with the latter observation of the learned Judge. When the High Court issues a direction to a police officer to release the person com plained against on bail, that person is not under any restraint. His appearance before the High Court is voluntary and as has been discussed above such appearance does not amount to his placing himself in the custody of the Court.
The learned Judge has referred to the case of Johar Mull and others (supra) as supporting his view ; but there, the present question was neither raised nor discussed. The con tention on behalf of the Crown in that case appears to have been only that bail ought not to be allowed in cases of murder. The learned Judges of the Calcutta High Court no doubt observed at the outset that they had power under section 498 to direct that any person should be admitted to bail in any case, but in fact they proceeded on the basis that they could "revise the order of the Magistrate and say that he should have exercis ed his discretion in granting bail". In that case the Magistrate has issued a non‑bailable warrant for the arrest of the peti tioners who appeared before the High Court. That decision does not lay down that bail can be granted to a person even when he is under no restraint. On the other hand it seems to me that the petitioners in that case can be said to have appeared before the High Court in the sense in which the word appear' is used in sections 496 and 497. As pointed out earlier mere appearance when there is no justification for the Court to take the person appearing into custody is not the appearance before Court required for the grant of bail, but when against the person who appears before a High Court a warrant for his arrest has already been issued by the Court of first instance it cannot be said that the High Court has no justification to take him into custody. In Muhammad Abbas v. Crown (supra) where the question for decision was the same as here. Tyabji C. J. has observed that the power conferred under section 498 is of a revisional character and that a higher Court should not interfere before the subordinate Court exercises its discretion. I am' unable to accept this view. Ordinarily the higher Court may not interfere unless the petitioner has moved the Court of first instance, but I do not think that it can be said that there is a legal bar to a higher Court exercising a power in the first instance unless the section under which it acts states to that effect. Under section 498 the bail req 2r d by the police officer or Magistrate may be reduced by the High Court or Court of Session. There is nothing in the section to indicate that tie High Court can reduce the bail : only after the Session Court has declined to do so. That being so, I can see no objection to the High Court or Court of Session, like the Court of first instance, exercising the power of granting b Ail to a person against whom a non‑bailable warrant was been issued, if he appears in Court and surrenders himself.
In Muhammad Abbas v. Crown to which referent: has been made above and in Amir Chand v. Crown the Full Bench decision of the Lahore High Court was considered and dissented from. In those cases the applicants for bait were persons under no restraint whatever. They had not been arrested by the police, nor had warrants been issued for their arrest. It was held that they could not be released on bail under section 498. For reasons stated above. I consider that this conclusion and not the one reached by the Full Bench of the Lahore High Court is correct. Tyabji, C. J. in the Sind case has observed that the power of the High Court and Court of Session under section 498 is not affected by the limitations on the grant of bail imposed in section 497 and Cornelius, J. in the Full Bench case has, expressed the same view. Khosla, J. of the East Punjab High Court, however, is of opinion that after the decision of the Privy Council in Lala Jairam Das's case (supra) that view cannot be regarded as correct. For the pur poses of the present case I do not find it necessary to deal with this point, for, even if it is assumed that the power under section 498 is unfettered by the limitations imposed in sec tion 497 the fact still remains that that power can be exer cised only for granting bail, and as 1 have already stated some sort of custody is a condition precedent to the grant of bail.
I would, therefore, allow this appeal and set aside the order of Kayani, J.
A. H. Appeal accepted.
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