P L D 1966 Supreme Court 1003 (PLP)

Learned counsel for the respondent has stressed the words "in any case" and "any person" occurring in section 498 and has argued that this section confers unfettered discretion on the High Court and the Court of Session to grant bail, irrespective of the limitations imposed by section

497. He also pointed out that section 498 uses the expression "to be admitted to bail" as distinguished from the words "released on bail", occurring in sections 496 and

497. In Hidayatullah Khan's case, which was a Full Bench decision of the Lahore High Court, the view was undoubtedly expressed that the words "admitted to bail", do not bear the same connotation as "released on bail". This interpretation, however, was not accepted by the Federal Court in Khushi Muhammad's case and again, recently by this Court in Sadiq Ali's appeal. It was observed that these two expressions are synonymous as was borne out by their being used in the same sense in several sections of the Code. Reference in this section may be made to the language of sections 51, 62, 426,427, 500 and 563(2) of the Code. The two expressions appear to have been used interchangeably in the Code and I do not see any reason to revise the opinion which I expressed in Sadiq Ali's case on this point, even after hearing the arguments advanced at the Bar in this case. The main question that calls for consideration is whether section 498 is only ancillary or subsidiary to the provisions of sections 496 and 497 of the Code, or in any sense, makes provision for situations and contingenies not covered by these sections? In the case of Jairam Das, the question before the Privy Council was whether section 498 enabled the High Court to grant bail to a person, who had applied for special leave to appeal to the Privy Council, after his conviction had been upheld by the High Court. Their Lordships expressed the positive opinion that section 498 did not cover the case of a convicted person, despite the expression found in this section, viz., "whether there be an appeal on conviction or not". These words were construed to mean that the case of an accused person would be covered by this section, irrespective of whether, on conviction, his sentence be appeal-able or not. It is true that this Court is no longer bound to accept the opinion of the Privy Council if good reason is shown for departing from it. The Privy Council, however, was the highest Court of appeal, in regard to cases arising in' this country, till sometime after the Partition and unless strong grounds ‑ are made out for rejection of a construction of a statute hitherto accepted on the authority of the Privy Council, this Court would be loath to adopt a new interpretation of the relevant enactment. Are there then any overriding considerations, which would justify a different construction of section 498 from that adopted by the Privy Council? A consideration of the context in which it occurs would show that section 498 should apply only to accused persons and not to those convicted of an offence. As was pointed out by the Privy Council, section 426 of the Code grants power of bail to the appellate Court, in respect of convicted persons. Subsection (2) of that section expressly enacts that such a power may be exercised by the High Court, in the case of an appeal by a convicted person to a Court subordinate thereto. That section confers no such powers on a Court of Session. The very fact that express conferment of this power in the case of the High Court is mentioned, excludes the existence of a similar power in the case of a Sessions Court. If section, 498 is so construed as to include within its scope convicted persons, then its provisions would come into conflict with section 496, so far as the Court of Session is concerned. Indeed, on such a view, the Court of Session would, under section 498, have power to grant bail to a convicted person, appealing to the High Court. Such a construction, if possible; should be avoided. I am, therefore, inclined to the opinion that‑section 498 should be interpreted with reference to the context in which it occurs and should be held confined to the case of an accused person only. It is to be noticed that this section starts by saying that 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. The "bond" mentioned herein is obviously one to be executed by an accused, person. The context, therefore, shows that the power of bail too under this section should be held limited to the case of accused persons. The cases of convicts are sufficiently provided for by sections 6 and 435 of the Code, and there was no necessity for repeating provisions regarding bail to them in section 498 the Code. This is one limitation which the Privy Council thought should be spelt out from section 498, when seen in the light of B the other provisions in the Code. The second, and the more important, limitation seems to be that which confines the scope of section 498 in non‑bailable cases to the category of persons,) visualized by section 497, and I proceed to examine that, point. This question, it is true, was not before their Lordships of the Pivy Council, directly. It is maintained, on behalf of the respondent, that the word "appears", occurring in sections 496 and 497 of the Code, should apply only to a person, appearing in response to a process, issued by a Court and should not be held to include voluntary appearance by a person, seeking bail. In Sadiq Ali's case, keeping the dictum of the Privy Council in view, I had expressed the opinion that the word "appears" need not be so confined. It, is, however, pointed out by learned counsel for the respondent that with the adoption of this connotation of the word "appears" in the general dictionary sense, the result would be that section 498 itself would seem to become redundant. No statutory definition of the word "appears" is given in the Code and the question what precise meaning should attach to it is an open one. The word "Court" in sections 496 and 497, obviously includes the Court of Sessions and the High Court. If by voluntary appearance, when the person concerned is under immediate apprehension of arrest, either under a warrant issued by a subordinate Court or without warrant, by the police, grant of bail becomes possible by order of the Court, without the Court being directly seized of the case, under section 497, there would appear to be no need to have recourse to section 498, Pakistan Penal Code, at all. The argument has some force. On further reflec tion, therefore, I have come to the conclusion that the view in Sadiq Ali's case may require a little modification in so far as the word "appears" in sections 496 and 497, need not be construed to include voluntary appearance, even in circumstances of grave apprehension of arrest. This word may be taken to have been used to sections 496 and 497, in the same sense as in section 242 or 252 of the Code, which obviously contemplate appearance in answer to a process issued by a Court. This interpretation will have the merit of saving section 498 in its own right. The position that emerges then, would be that under sections 496 and 497, criminal procedure Code that Court can bail out a person only if he has been placed under actual custody or appears in answer to a process issued or is brought before the court arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction of the Court is seized of the proceedings directly, in which bail is requested. Section 498 however would be called in aid, before the court of Session and High court even where the Court is not seized directly of the proceeding is question and where no actual arrest has been made so far but anticipatory bail is asked for e.g where the case is still at a stage o investigation by The police or is pending in a subordinate Court. The power to grant such anticipatory bail would thus be confined to the High Court and the Court of Session and other Courts would be excluded from its scope. This interpretation would seem to be consistent with the use of general expressions like "in any case" and "any person" in section

498. The High Court or Court of Session would also of c9urse have concurrent as well as revisional powers, in respect of orders by the police or the subordinate magistracy, in the matter of bail, under section 498, read with sections 496 and 497 as was held by the Federal Court in Khushi Muhammad's case and by this Court in Sadiq Ali's case. It was next contended, on behalf of the respondent, that the generality of the words "in any case" or "any person", occurring in section 498, Criminal Procedure Code, should be given full effect, and the limitation on bails, in respect of non‑bailable offences, imposed by section 497, Criminal Procedure Code, should not be held to govern section 498, Criminal Procedure Code. After giving serious consideration to ‑ this question, I have reached the conclusion that the contention cannot be acceded to, for it might lead to anomalous results. Section 28 of the Code declares that "subject to other provisions of this Code, any offences under the Pakistan Penal Code may be tried by the High Court, or by the Court of Session, or by any other Court by which such offence is shown in the eighth column of the Second Schedule, to be triable". Section 194 further provides that the High Court may take cognizance of any offence upon a commitment made to it, in manner hereinafter provided. The Advocate‑General may, also, with the previous sanction of the Provincial Government, exhibit to the High Court informations, for all purposes for which Her Majesty's Attorney‑General may exhibit informations, on behalf of the Crown, in the High Court of Justice in England. Section 526 of the Code too enables the High Court to transfer, in appropriate circumstances, a case pending in a subordinate Court, for trial to itself. If then the High Court tries a murder case on the original side, the limitations on the grant of bail specified in section 497, Criminal Procedure Code, would be fully applicable to the High Court. They would also apply if action is taken under section 497 in respect of an accused person who is actually under arrest by order of a subordinate authority. If, however the wider interpretation, suggested for the provisions of section 498 of the Code, is adopted than it would follow that the high court s power gets enlarged in respect of bail in non-bailable cases when a case is pending in a subordinate court or is under investigation by the police under section but it gets curtailed as soon as the case comes up for trial before itself so that section 497 gets attracted to the case. The better view seems to me to be, that the policy of the law, in respect of bail to persons, accused of non‑bailable offences, is laid down in section 497 and the same policy should be kept in view, while considering question of bail under section 498 Criminal Procedure Code: After all, judicial discretion has to be exercised, while granting bail and the power conferred by section 498 of the Code cannot be construed to be purely arbitrary. In this respect, therefore, section 498 of the Co4 seems to me to be "ancillary or subsidiary" to sections 416 and 497 of the Code, in the words of the Privy Council. In other respects, however, section 498 occupies the position of a supplementary provision in so far as it confers not only concurrent but revisional powers on the High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts and the police and these Courts to exercise the power of anticipatory bail, In suitable cases. Coming now to the facts o the instant case, it seems to me that the bail, granted by the learned Single Judge to the respondent, on submission of grounds almost identical to those which were mentioned in his previous application and which was rejected by another Single Judge, was not justified. No reasons were mentioned by the learned Single Judge for the grant of bail in a case of murder in which the commitment order had already been passed, though subsection (3) of section 497 prescribes that an officer or a Court, releasing any person on bail under subsection (1) or subsection (2) of that section, shall record, in writing, his or its reasons for so doing. Of course, the mere existence of an order of commitment for trial need not be equated with a finding that "there appear reasonable grounds for believing that the respondent was guilty of an offence, punishable with death or transportation for life". Only a prima facie case must be deemed to exist against him on the basis of the order of commitment. There were no circumstances, brought out in the respondent's favour, which could justify leniency, on the ground of age, or sex or health, within the meaning of the proviso to subsection (1) of section

497. The case also does not fall within the exceptions visualised in subsections (2) and (4) of section

497. There were affidavits, filed in support of the petition for cancellation of bail in the High Court, alleging that the respondent was attempting to tamper with the witnesses for the prosecution. This, was denied in a counter‑affidavit. Considering, however, that there had been an order of commitment passed, that no fresh grounds had been urged for bail, before the second learned Single Judge, over and above those considered by the first Judge and that no exceptional circumstances existed, justifying the grant of bail, I consider that the exercise of discretion by the second learned Judge, in allowing bail, was, open to exception, on the legal plane. I would, therefore, allow the appeal, set aside the impugned order, passed by the learned Single Judge and direct that pending trial, the respondent should be confined to judicial custody unless, in the meantime, circumstances have come to light, which would require the question of bail to be reconsidered. CORNELIUS, C. J.‑ I agree entirely with the judgment of my learned brother S. A. Rahman, J. and in particular with his reasons for holding that section 498, Cr. P. C., is not to be construed to extend the power of the High Court, or a Court of Session, to grant bail in cases where these Courts would not be competent to grant bail under section 497, Cr. P. C. I have to add that I am unable to accept, speaking with due respect, the reason advanced by my learned brother, Muhammad Yaqub Ali, J., for coming to the contrary conclusion, viz., that the expression "a Court" in section 497, Cr. P. C., has reference to Courts other than the High Court or a Court of Session. There are no words in section 497, Cr. P. C., or elsewhere in the Code which even by implication could have the effect of restricting the full meaning of the words "a Court" used in that section. I consider that, on recognised principles of statutory construction, the effect of section 498 can be reconciled with that of section 497, without doing violence to the meaning of any expression used ‑in either section and at the same time, with complete adequacy, on the reasoning set out in the judgment of my learned brother, S. A. Rahman, J. HAMOODUR RAHMAN, J.‑I have had the advantage of seeing in advance the judgment proposed to be delivered by my learned brother S. A. Rahman, J. I am in agreement with him that this appeal should be allowed and that the order of a learned Single Judge of the High Court of West Pakistan, Lahore, granting bail to respondent No. I on the 18th November 1965, after another learned Judge of the same High Court had rejected a similar application, should be set aside. The ground upon which this conclusion `has been based is also "in accord with the view that I took, while in the High Court, in the case of Harsha Nath Pal v. State (P L D 1959 Dacca 113). But since this appeal raises an important question of law as to the true nature and scope of section 498 of the Criminal Procedure Code, I would like to express my own views on this question. This section occurs in Chapter XXXIX of the Code of Criminal Procedure which deals with bails and reads as follows:‑ "

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 Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by a police‑officer or Magistrate be reduced." This Chapter of the Criminal Procedure Code consists of 7 sections, namely, sections 4 to

502. Section 496 deals with bail to persons accused of bailable offences. Section deals with bail to persons accused of be offences. Then occurs section 498 which is followed by sections 499, 500, 501 and 502 which deal with bonds and sureties to be furnished by persons granted bail under this Chapter. Notwithstanding the sequence in which this section occurs in the Criminal Procedure Code the wide terms in which it is couched appear to have caused some difficulty in the determination of its true nature and scope in the various, High Courts in this sub‑continent and until 1945 the view that prevailed in most of the High Courts was to the effect that this section gives wide and unlimited powers to the High Court and the Court of Session to grant bail not only to accused persons but also to convicted persons who had not appealed against their conviction. This jurisdiction was considered to be a jurisdiction which could be exercised concurrently with the subordinate Courts and not merely as a revisional jurisdiction. Several of the High Courts also took the view that the power to grant bail under this section was entirely unfettered by any conditions and the limitations set out in sections 496 and 497 of the Code had no manner of application. The Calcutta and the Bombay High Courts, however, took a somewhat different view. Though they conceded that this jurisdiction was unfettered and uncontrolled by the two previous sections they felt that the High Court and the Sessions Court in exercising their discretion under section 498 of the Criminal Procedure Code should nevertheless keep in view the limitations on the powers of other Courts to grant bail imposed by sections 496 and 497 of the Code, as they appeared to be "founded on justice and equity", vide Emperor v. Sourindra Mohun (I L R 37 Cal. 412 ), Ashraf Ali v. Emperor (I L R 42 Cal. 25) and Naranji Premji v. Emperor (A I R 1928 Sind 142). It was in the year 1928 that the Chief Court of Sind also veered round to the Calcutta view and held in the case of Gul v. Emperor (A I R 1928 Bom. 244) that section 498 should be interpreted as controlled by section

497. It was in this state of divergence of Judicial opinion that in 1945 this section came up for consideration before the Judicial Committee of the Privy Council in the case of Lala Jairam Das v. King Emperor (72 1 A 120) The precise question that fell to be considered in that case was as to whether the High Courts had power to grant bail to a person after is conviction had been upheld by the High Court, but special leave had been granted by the Privy Council to appeal from the judgment of the High Court., On this question also there appeared to be a divergence of opinion, Some High Courts took the view that they had inherent power to grant bail if special leave to appeal had been granted by the Privy Council. Some others took the view that bail could only be granted by the High Court if the Judicial Committee had said that the application for bail should be dealt with by the High Court. The Calcutta and Nagpur High Courts, however, took the view that there was no such inherent power in the High Court after it had disposed of the appeal, as the High Court was then functus officio, but this jurisdiction could be revived if the Judicial Committee had granted leave and directed the High Court to deal with the bail matter. The Judicial Committee, after reviewing the authorities in India, took the view that "Chapter XXXIX of the Code together with section 426 is and was intended to contain, a complete and exhaustive statement of the powers of a High Court in India to grant bail, and excludes the existence of any additional inherent power in a High. Court relating to the subject of bail." In the course of the opinion delivered by Lord Russell of Killowen on behalf of the Judicial Committee the noble Lord also observed that "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 and subsidiary to that provision " Even though this observation was in the nature of an obiter dictum, it was treated as binding by the High Courts in British India and has since been consistently followed in the, country as well both by the Federal Court and this Court in the cases of Crown v. Khushi Muhammad, Gushtasab Khan v. Crown, Khalid Saigol v. The State and Sadiq Ali v. The State. We are, however, now invited to re‑examine this question and it k urged that the view hithertofore taken in the above decisions is based upon an assumption of the correctness of the view taken by the Judicial Committee in the case of Lala Jairam Das, The; correctness of this view is now sought to be challenged and it is contended that since we are no longer bound by the decisions of the Judicial Committee we should not assume that the Judicial Committee was always correct. It is urged that to impose the restrictions read into section 498 by the Judicial Committee would amount rendering this section altogether redundant, at any rate, so far as the power granted to the High Court and the Court Session to grant bail was concerned. If, it is said, it as intended by the Legislature to control the wide discretion manifestly granted to the High Court and the Court Session under section 498 by the limitations mentioned sections 496 and 497, then this section was wholly unnecessary for, under its revisional jurisdiction under section 435; which hits incidentally not been noticed by the Judicial Committee in th e case of Lala Jairam Das the High Court and the Court Session had ample powers to revise the orders of inferior passed under sections 496 and 497 as also to enlarge bar; pending the examination of the record. It is further argued that there can be no justification for limiting the connotation" the words "in any case" and "any person", used in this section. These are words of the widest connotation and there is no reason as to why they should not be given their ordinary meaning. The intention of the Legislature, it is said, should be gathered from the words used. In support of this contention reliance is also placed on a Full Bench decision of the Lahore High Court to this case of Hidayat Ullah Khan v. The Crown where without dissenting from the view expressed by the Judicial Committee it was Observe that the use of such wide words in section 498 indicate that v was "clearly a section intended to supplement complete the provisions of sections 497 and 496" and again that the use o such words justified the belief that "they included clearly power in the High Court to grant bail to persons to whom the Police and the Courts of first instance are not permitted by section 497 to grant bail." The question that was referred to the Full Bench in that case was as to whether the High Court can grant any relief, and if so what, to a person seeking an order; or bail, in anticipation of his arrest for an offence? The judgment of the Full Bench was delivered by Cornelius, J., (as he then was) and the answer that was returned was that "in a proper case, the High Court has power under section 498, Criminal Procedure Code, 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." This answer was concurred in by Munir, A. C. J. and Muhammad Sharif, J. But this decision was overruled by the Federal Court in the case of Crown v. Khushi Muhammad where it was held, relying upon the observations of the Judicial Committee in Lala Jairam Das's case, that "section 498 does not in any way enlarge the categories of persons to whom bail can be granted under Chapter XXXIX". In the latter case the then learned Chief Justice (Abdur Rashid, C. J.) in the course of his judgment posed the question that "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?" In view of this further difficulty the learned Chief Justice felt confirmed in his view 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." With this view Akram and Shahabuddin, JJ., also agreed. This situation visualised in the question posed by the learned Chief Justice actually arose in the case of Sadiq Ali v. The State where the Sessions Judge after cancelling the anticipatory bail granted by him earlier ordered the person concerned to be remanded to police custody and directed the Court orderly to take charge of him. This Court has now held, after reviewing the earlier decisions, that "the rule laid down in Khushi Muhammad's case could be safely extended to a direction for the grant of bail to a person whose arrest on a criminal charge by the Police, without a warrant, is proved to be imminent and certain and where the circumstances would justify the grant of bail", but has at the same time pointed out that the subsequent order of the learned Sessions Judge by which the ad interim bail was cancelled "did not entail the consequence that he had to be ordered to be given into Police custody" and indicated that "the proper order to pass in these circumstances was to cancel the ad interim bail and to leave the appellant to be dealt with by the Police, as they thought fit." In another case, namely, Rasool Bakhsh v. The State a learned Single Judge of the High Court of West Pakistan, Karachi Bench, following the pre‑1945 decisions of the Indian High Courts, held that the High Court's discretion under section 498 was not fettered by the limitations laid down in section 497 of the Criminal Procedure Code, but in this case the learned Judge dice not notice either the decision of the Privy Council in the case of Lala Jairam Das or the decision of the Federal Court in the case of Khushi Muhammad. The same learned Judge again sitting singly in the case of Sardar Ata Ullah Khan v. The State, however, maintained his above view even after considering the subsequent decisions both of this Court, the Federal Court and the Privy Council in the case of Lala Jairam Das. He distinguished these cases on the ground that in none of them this precise question had come up for consideration and preferred to follow the view taken in the case of Hidayat Ullah Khan that this section was intended to supplement and complete the provisions of sections 497 and 496 and had conferred a larger power to grant bail in pending cases to the High Court and the Court of Session. It is no doubt true that the decisions of the Judicial Committee are no longer binding upon us but they are nevertheless entitled even now to the highest respect and should not be lightly departed from particularly, where the decision relates to law which is still in force in the same form. Unless there be cogent and compelling reasons it is, in my view, only proper that the decisions of the Judicial Committee should be respected as decisions of the highest Court of the time, particularly, where that view has also received recognition by the highest Court in the country. I propose, therefore, now to examine whether any such compelling reasons exist in the present case. Sections 498, as already stated, is no doubt couched in the widest terms and ex facie appears to empower the High Court and the Court of Session with the power to grant bail to "any person" and "in any case whether there be an appeal on conviction or not." It is contained in the Chapter on bails and immediately succeeds section

497. This Chapter, it is now universally accepted, deals with the cases of persons arrested or detained without warrant by a Police Officer or who appear or are brought before a Court at any stage of any investigation, enquiry or trial. This Chapter does not deal with the cases of persons tried and convicted or acquitted, for, their cases are specifically provided for by sections 426 and 427 of the Criminal Procedure Code. To this extent, therefore, there is no divergence of opinion that section 498 which occurs in Chapter XXXIX does not deal with the cases of persons dealt with in sections 426 and 427 of the Criminal Procedure Code. The earlier view that even the cases of convicted persons could be brought within the ambit of section 498 is no longer tenable. This view appears to receive support from the fact that in the corresponding section (section 390) of the Criminal Procedure Code of 1872 the words used were "the accused person". The substitution of the words "any person" in the place of "the accused person" led the High Courts in India in the earlier cases to hold that the alteration had the effect of enlarging the powers of the High Courts and the Courts of Session under section 498 as regards the category of persons to whom bail can be granted, but this could not be correct, for where a specific provision has been made in the Code for persons tried and convicted that provision should be applicable. The powers of the Hi0h Courts and Courts of Sessions, so far as the granting of bail is concerned, are derivable from the provisions of the Code of Criminal Procedure alone and there can be no scope for invoking any inherent jurisdiction in cases for which specific provision has been made in the Code itself. In this respect, at any rate, section 498 also deals with persons in respect of whom orders can be made under sections 496 and 497, i.e., those who are arrested or detained without warrant by a Police Officer or appear or are brought before a Court and the use of the words "any person" does not enlarge the category of persons to whom bail can be granted under section

498. In this respect section 498, whether it is "ancillary" or "supplementary", also appears to be not altogether unconnected with the other provisions contained in Chapter XXXIX. Apart from this, it appears to me that looking at section 498 as a whole it cannot be said that it is an entirely independent section. It provides for three things; namely, (1) that the amount of the bond executed under that Chapter shall not be excessive and shall be fixed with due regard to that circumstances of the case, (2) that the High Court or the Court of Session may in any case, whether there be an appeal on conviction or not, direct that any person be admitted to bail, and (3) that the High Court and the Court of Session may reduce the amount of bail required by a Police Officer or Magistrate. So far as the first and last are concerned, it is manifest that they relate to the bonds to be executed by persons granted bail under sections 496 and

497. The first is clearly a directive also to the "officer" and "Court" referred to in sections 496 and 497 and the last item gives the High Court and the Court of Session powers to revise the orders of the "officer" and "Court" men tioned in sections 496 and 497 in cases in which they appear to have disregarded the first directive. In respect of these matters, therefore, section 498 is without any doubt "ancillary or subsidiary" to the two earlier sections. The question now is as to whether the power given under (2) above is nevertheless unrelated to the provisions of sections 496 and 497 or whether this power is also controlled by the provisions of the earlier sections of that Chapter. As earlier indicated the view that found favour in almost all the High Courts in the Indian Sub‑continent was that this power of granting bail given to the High Courts and the Courts of Session under section 498 was a wider power than that conferred on officers in charge of Police Stations and inferior Courts under sections 496 and 497, but the High Courts of Calcutta and Bombay accepted this view with the rider that in exercising this discretion the High Court and Court of Session should be guided on general principles relating to the exercise of judicial discretion by the policy of the Legislature, if any, indicated in the statute itself and the limitations imposed thereby on the powers of other Courts. A judicial discretion, it was felt, ought not to be exercised in a manner which is contrary to the policy of the law. This is also the view which has found favour with my learned brother S. A. Rahman, J. and led him to the conclusion that "in this respect, therefore, section 498 of the Code seems to be `ancillary or subsidiary' to sections 496 and 497 of the Code, in the words of the Privy Council." The main consideration which has impelled him to this conclusion is that otherwise it would lead to "anomalous results" in so far as the High Court would be bound by the provisions of section 497 in cases which come up for trial before it under its original criminal jurisdiction under section 194, Cr. P. C., or in cases transferred to itself under section

526. Such anomalous situations would, I venture to think, also arise in cases in which the High Court is called upon to exercise its powers of granting bail under sections 426, 427 and 435 of the Code. Should in such cases too the High Court's powers be fettered by the considerations mentioned in sections 496 and 497? This Court has already held in Khalid Saigol's case that they are not so fettered and I see no reason to depart from that view. With the, utmost respect, therefore, I. am unable to agree that this can be a valid consideration for restricting the powers of granting bail conferred upon the High Court and the Court of Session by section

498. If my learned brother intends by this to lay down as a general principle that in no case can the High Court and the Sessions Court depart from this rule then 1 think that he is placing an undue restriction' on the powers of the High Court and the Sessions Court which is not warranted by the unusually wide words used in this section. In using the words "ancillary and subsidiary", I also venture to think, that the Judicial Committee did not intend to lay it down as a general proposition that in all respects the provisions of section 498 were controlled by sections 496 and

497. The Judicial Committee was concerned only with the question as to whether section 498 could have any reference to convicted persons. Other questions were not canvassed and it appears that the Judicial Committee did not consider in all its aspects the scope of section

498. It was not noticed that there could be cases in which this power could be utilised by the High Court and the Court of Session, e.g., where the inferior Courts or Polio; Officers could not do so under the proviso to section

496. Could it have been in the contemplation of the Judicial Committee that even under section 498 the High Court or the Court of Session would not be empowered to grant bail in such cases? Again, can the Judicial Committee be considered to have laid down that the Sessions Judge should have no power under section 498 to release a person on bail pending the hearing of a reference under section 123 in respect of a person against whom an order has been made under section 118 of the Code? These were situations which were not in the contemplation of the Judicial Committee and in the circumstances I would with respect say that their Lordships' observations are limited to the question that was before them, namely, as to whether section 498 had any reference to the case of a convicted person whose conviction had been upheld by the High Court. Taking in to account the context in which section 498 appears and the wide words deliberately used it in respect of the power of granting bail it seems to me that it is in the nature of a residuary and supplementary provision giving to superior criminal Courts, namely the high court and the courts to session to whom bail cannot be granted under exercised 496,and

497. In what manner this power should be exercise or by what principles these superior Courts should be guided in exercising their discretion is an altogether different question and should not, in my view, be taken into account for determining the true scope of this section. In my view, there an be no doubt that section 498 ‑gives extend and wider powers to the High Court and the Court Session but this judicial manner taking in to account the limitation placed by other provinces of the code upon subordinate authorities and that a rule founded on justice and equity will not be exceptional circumstances But this is a self imposed restriction and no a restriction imposed by anything contained in the section. Normally this general salutary principle will no doubt be kept in view and will not be lightly departed from but this should not, in my view, be held to debar the High Court an the Court of Session from deviating from it in exceptional case or as controlling the wide words of section 498 as a matter of construction of the section. This principle is invoked in aid more a., a precaution against the is criminal a grant of bail and not as a statutory clog upon the powers of these courts With these observations I respectfully concur with the other conclusions reached by my learned brother. MUHAMMAD YAQUB ALI, J.‑I have had the advantage of seeing the judgment of my learned brother S. A. Rahman, J. and' respectfully agree, with him that the appeal be allowed but express my inability to concur with the view that the powers conferred on a High court and court of session by sections 498, Cr P C to admit any person to bail are subject to the limitations imposed by section 497, and that section 498 is in this respect subsidiary and ancillary to section 497 ions imposed 'by sections . My own view is that the Code has, in conferring powers on Courts to grant bail, observed distinction between High Court or Court of Session and the Courts subordinate to them. The limitation in section 497, namely, that a person shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation is applicable to subordinate Courts for the reason that generally offences punishable with transportation for life and death are triable by a Court of Sessions or the High Court and these being superior Courts their powers are larger than the power entrusted to Courts at the lower tier. There is in my opinion also no warrant to import into section 498 the ingredients of section 497 section 496,and 497 speak of bail anti 'bonds, The part of section 498 emphasise, that Courts and police officers shall fix their amount with due regard to the circumstances of the case and shall not be excessive and the concluding part empowers the High Court or the Court of Session to reduce the bail required by a police officer or Magistrate. To this extent section 498 may be said to be ancillary to sections 496 and

497. The remaining part of the section which confers on the High court or court of Session the power to admit any person to bail in any case and weather there be an appeal on conviction or not is however, an independent provision. The plain meaning of the words employed by the Legislature in section 498 cannot be depart from on any rule of construction The words "in any case" do away with. The distinction made section 497 between‑cases punishable with transportation for life and death and cases involving lesser penalty. Similarly the use of the words any person confers jurisdiction in respect of persons who may not be under arrest and does not appear in obedience to a process issued by the Court or are not brought before the Court as envisaged in section

497. It is the effect of these words which, in my opinion, justify grant of bail before arrest and not the subtle difference between the words "release on bail" and "admit to bail" used in sections 497 and 498 respectively. Lastly, as regards he anomaly that the High court and Court of Session while trying cases will be subject to limits imposed by section 497, I respectfully venture to say that the High court and court of Sessions are not included in the term `Court' used in section

497. There will thus be no anomaly for in either case their powers in the matter of rant of bail will be the same. This however does not confer arbitrary power to grant bail on the High Court and the Court of Session. The policy of law is laid down in section 497 and the Courts will act in aid of that policy, but there will always be case exceptional nature in the limitation imposed by section 497 section 498 is to be subsidiary and ancillary to section 497 then the power to grant bail in such cases will be taken away. A. H.