P (PLP)

He was released on bail by the trial Magistrate, but the latter cancelled the bail and ordered re-arrest of the accused. The petitioner has already twice moved the Sessions judge unsuccessfully for bail under section 498 Criminal Procedure Code. As the bail application before me is an independent appli cation I shall decide it on its own merits, without reference to the grounds on which the Courts below have refused bail in this case. I do not propose to sit in judgment over the order of the Sessions judge by way of revision or appeal as the counsel for the petitioner has in the course .of arguments asked me to do so. The jurisdiction of this Court is concurrent with that of the Sessions judge under section 498 Criminal Pro cedure Code though, as a rule, the Sessions‑ Judge should be moved first in the matter. With these observations I will proceed to examine the application before me. The petitioner has approached this Court mainly on the following.4 grounds :‑ (a) that he never tampered with prosecution evidence, (b) that he is sick within the meaning of the proviso to section 487, (c) that the alleged offence, though non‑bailable, is not of such a serious nature as to justify refusal of bail, and (d) that while in jail he cannot arrange for his defence in satisfactory manner. I first propose to deal with the question of whether of not the petitioner was either tampering with, or was likely to tamper with, the prosecution evidence. In this connection 3 witnesses were examined to support the allegations that the petitioner was in fact tampering with the evidence. After re cording of this evidence the learned Magistrate came to the conclusion that the allegations so made were justified and accordingly be cancelled the bail already permitted. I can find nothing to indicate that the Magistrates order was either improper or bad in law. He acted in his discretion and since he recorded the evidence and was in a position to come to a conclusion on it, I see no reason to assume that he has acted improperly. The second prayer is that the petitioner is sick. He is alleged to be a T. B. patient and the learned counsel for the petitioner has endeavoured to argue that his client has a statu tory right to be released on bail in accordance with the pro viso to section 497 (1) of the Criminal Procedure Code. For facility of reference the proviso is reproduced below :‑‑ " Provided that the Court may direct that any person under the age of 16 years or any woman or any sick or infirm person accused or such an offence be released on bail". It is quite clear from the wording of this proviso that this provision of law is not mandatory. The word `may' appearing clearly indicates that this is a matter for discretion by the Court concerned, and each case must be considered on its merits. It would, for example, be proper for a Court to release on bail an accused person who was suffering from some incurable disease and who lead only a short time to live ; or whose illness or sickness was such that lie required treatment as an indoor patient in hospital. On the other hand, it would reduce the law to a state of absurdity if, for the sake of a common cold or some similar minor ailment, a Court were to release a person accused of a non‑bailable offence on bail as a matter of course. The circumstances of this case do not indicate that even though the petitioner suffers from T. B. he is in any way incapacitated. He is reported to be employed and attends to his work like a normal man. And no evidence has been pro duced either before me or before any Court to show that he is incapable of doing his work. His detention therefore in custody is unlikely to affect his health since it is always per missible for him to obtain medical treatment, if it should be required. The final contention is that the offence with which the petitioner stands charged is not particularly so serious as to justify his detention and that he should be released on bail; I do not propose to go into the merits of the case or make such observations as axe likely to influence the trial Magistrate as to the guilt or innocence of the petitioner. Suffice it to say that the offence which the petitioner is alleged to have com mitted is non‑bailable and subject to the two restrictions con tained in section 497 Criminal Procedure Code the trial Court has a free and unfettered discretion to release the accused person on bail. Such discretion must be exercised after giving consideration to the circumstances of the case and all that is necessary for me to, see whether the discretion has been exercised properly. The order of the Magistrate gives reasons for refusing bail and I see nothing wrong or improper in his order. For the reasons which I have stated at some length above I see no grounds for accepting the petition before me. There is, or has been, some evidence that the petitioner was attempting to tamper with the prosecution evidence. That alone, in my opinion, is quite sufficient for the lower Court to refuse to admit the petitioner to bail. My anxiety, however, is to see that the accused is not in any way prejudiced in his defence and further that he should be given the maximum opportunity of preparing his defence. It will, therefore, I consider, meet the ends of justice if the peti tioner is detained in custody until such time as the prosecution evidence is recorded. When the stage is reached in these pro ceedings the petitioner may be released on bail subject to such conditions as the trial Court may de3ire to impose. As for the application of section 561‑A, Criminal Procedure Code to this case, my powers under this section are not attracted, for it has been held on frequent occasions that the powers vested in a High Court under this section will not only be used exceedingly sparingly but also that they will not be used where there are express provisions of law governing the case in ques tion. The petition before me relates to a bail application specifically under the provisions of section 498, Criminal Pro cedure Code and for that reason the powers under section 561‑A of the Criminal Procedure Code cannot be used. K. M. A. Petition dismissed.