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Criminal Appeal No. 9‑D of 1969, decided on 4th July 1969.

On appeal from the judgment and order of the High 1'uurt of East Pakistan, Dacca, dated the 14th January 1969. in R. No. 749 of 1968).

---Ss. 416, 439 & 497 Grant of bail pending revision‑High Court has same power as in appeal under S. 426‑No provision for attaching any condition or terms to order granting bail or suspending execution of sentence under S. 426‑Person accused and convicted of offence under S. 407, P. P. C.‑High Court pending revision granting bail conditional 'on payment of fine imposed by Court below‑Order, held not proper.

Section 426 of the Criminal Procedure Code confers on the. High Court the power to direct that pending the appeal, the execution of the sentence awarded to the convicted person may be suspended and also if he is in confinement that he be released of bail or on his own bond. Under section 439, the High Court has the same power of granting bail pending a revision petition as an appeal under section 426. There is no provision for attaching any condition or term to the order granting bail or suspending the execution of sentence under section 426. A person admitted to bail cannot be subjected to the condition that he shall desist from the repetition of the offence with which he is charged.

Where, the High Court in vision petition of a person convicted of offence under section 407, P. P. C. granted hick,, pending revision, bail, conditional on payment of fine imposed on him by Court below, it was held that the order granting bail could not be made dependent on payment of fine imposed by lower Court.

Mian Mahmud Ali Qasuri and others v. The State P L D 196.1 S C 478 ref.

Ghulam Hafiz Mirza, Advocate Supreme Court (M. M. Huq, Advocate Supreme Court with him) instructed by S. S. Hoda, Attorney for Appellant.

Shahabuddin Ahmed, Advocate Supreme Court instructed by Abu Backkar, Senior Attorney for Respondent No. 2.

Respondents Nos. 2 and 3: Ex parte.

Date of hearing: 3rd July 1969.

.‑The short question raised in this appeal by special leave is whether bail granted under section 426, Cr. P. C., can be made conditional on payment o' fine imposed by the Court below.

The appellant was convicted by the Assistant Sessions Judge Dinajpur, under section 407, P. P. C. for misappropriating 42,75: maunds, 27 seers of Government paddy and sentenced to 3‑1 year simple imprisonment and a fine of rupees two lacs, in default t: under to further imprisonment for one, year, Both convictional

and sentence were, on appeal, affirmed by the Sessions Judge, Dinajpur, from which the petitioner preferred a revision petition in the High Court. The learned Judges while issuing rule in the petition directed that the appellant be released on bail in the sum of rupees three lacs and allowed him one month's time to pay the fine. It was further laid down that in case of default in the payment of fine the bail shall stand cancelled.

Section 426 of the Code confers on the High Court the power to direct that pending the appeal, the execution of the sentence awarded to the convicted person may be suspended and also if he is in confinement that he be released on bail or on his own bond. Under section 439, the High Court has the same power of granting bail pending a revision petition as in a appeal under section 426. There is no provision for attaching any condition or term to the order granting bail suspending the execution of sentence under section 426.

While dealing with a case falling under section 497 of the Code in Mian Mahmud Ali Qasuri and others v. The State (1) this Court expressed the view that a person admitted to bail cannot be subjected to the condition that he shall desist from the repetition of the offence with which he is charged. It was further remarked that: ‑

"The connotation of the word bail' itself, as understood in law, supports this position. An accused person is said, at common law, to be admitted to bail, when he is released from the custody of the officers of the Court and is entrusted to the custody of persons known as his sureties, who are bound to produce him to answer, at a specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted. (Vide 'Concise Law Dictionary' by Osborn, 1927 Edition, page 32). This view receives further strength from a consideration of the provisions of the other sections included in Chapter XXXIX of the Code of Criminal Procedure. Section 497, which relates to cases of bail, when the person concerned is accused of a non bailable offence, also talks of release of such a person on bail or at the discretion of the officer or Court concerned, on the execution by him of a bond without sureties, for his appearance as provided in the section. The expression for his appearance is stressed particularly in this context. Section 500, also enacts that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released. Section 502 provides that all or any sureties for the attendance and appearance of a person released on bail, may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants. This view is further fortified by reference to the provisions of Chapter XLII of the Code, as to bonds."

Mr. Shahabuddin Ahmed, appearing for the State, was unable to support the order of the High Court attaching the

(1) P L D 1963 S C 478.

aforesaid condition to the order granting bail to the appellant, but maintained that in effect the High Court has declined to stay recovery of the fine. In this he is right, but it did not warrant the order nullifying the bail in case of default in the payment of fine.

We understand that bail was granted to the appellant no as a means of enforcing recovery of fine, but on its own merits. How could that order be therefore made dependent on the e payment of fine The appeal is, accordingly, allowed and the interim bail granted on the 14th March 1969, is confirmed.

Appeal accepted.

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