P L D 1949 Lahore 21 (PLP)

It will be convenient at the outset to state the provisions contained in the Criminal Procedure Code relating to the arrest of persons. The least power of arrest conferred by the Code is upon private persons by section 59; such a person "may arrest any person who in his view commits a non‑bailable and cognizable offence, or any proclaimed offender." and must with make him over to a police officer, who shall re‑arrest the prisoner his case falls within the provisions of, section 54, i.e., it the police officer is satisfied that the arrested man has been concerned in a cognizable offence, or that he is a proclaimed offender, and such person may also be detained under arrest if he refuses to give his name and residence or gives a false description, in which case the police officer is required to make inquiries under section 57, and when a satisfactory description has been obtained, to release the person. The private person's power of arrest is thus made subject to the discretion of the police officer, and it is important to note also that the law makes it necessary that every person arrested by a private person should be transferred to the custody of a police officer, should the latter consider it a case in which arrest is under the law permissible. Comprehensive powers of arrest without warrant and without orders from a Magistrate are conferred upon police officers by section 54, Criminal Procedure Code, which in nine separate clauses comprised in subsection (1) specifies a number of particular cases as well as certain classes of cases in which a person may be so arrested. Thus, a person found in possession of a house breaking implement without lawful excuse or one who is a proclaimed offender or who is found in posses sion of stolen property or who obstructs a police officer in the execution of his duty or escapes from lawful custody, or is a deserter from the Forces, or a released convict breaking a rule of surveillance, may be arrested by a police officer without warrant. Then, every person who has been concerned in a cognizable offence (which includes offences which are both bailable and non‑bailable) may be so arrested, as well as persons who are liable to be extradited for offences committed outside the jurisdiction, and persons whose arrest is required by some other police‑officer, by a requisition in writing which should satisfy certain specified conditions. Section 55 specifies three further particular cases in which persons maybe arrested, namely, those who are found concealing their presence in suspicious circumstances, those who have no ostensible means of subsistence or who cannot give a satisfactory account of themselves, and those who are by repute habituated to robbery, extortion, house‑breaking and theft. Finally, there are the wide powers which are conferred upon Magistrates by sections 64 and 204 of the Code. If any offence, whether it be cognizable or non -cognizable, bailable or non‑bailable, is committed in the presence of a Magistrate within his jurisdiction, he is granted power by section 64 to arrest the offender and commit him to custody. The power of arrest is regulated with greater precision where a Magistrate takes action against an offender upon taking cognizance of the offence; cognizance is to be taken in one of the ways specified in section 190, Criminal P. C., i.e., upon receiving a complaint or upon a police report, or upon information received from persons other than police officers or upon the Magistrate's own knowledge or suspicion, and the law provides that the Magistrate shall issue a summons where Schedule 2 to the Criminal P. C., prescribes that a summons shall issue in the first instance and may issue a summons even if a warrant is prescribed in the said Schedule, and the Magistrate is also empowered to issue a warrant in the latter class of cases As provided by sections 75 and 76 of the Code, the warrant may contain a direction for the release of the accused person from custody upon his furnishing security for his attendance in Court, so that in compliance with such a warrant, it is possible for the accused person to appear before the Magistrate, or to be brought before him in custody. Where a summons is issued, the accused person would naturally appear before the Court in compliance therewith. We may now proceed to examine the provisions of the Criminal Procedure a Code, in regard to the grant of bail. These are contained, in the main, in Chapter 39 of the Code of which the first section relates to persons accused of offences other than non‑bailable offences, and provides that when such a person is arrested or detained without warrant by a police officer or appears or is brought before a Court, he shall be released on bail if he can furnish the bail required, and may even be released on his own personal bond. There are numerous offences specified in the Code of Criminal Procedure which are bailable, although they are also cogniz able, i.e., the police may arrest the offender without warrant. Instances are cheating punishable under section 420, Penal Code or mischief of the kinds specified in sections 428 to 433 and

435. Persons arrested for offences of this kind would be entitled to bail as of right, but the amount of the bail would still be in the discretion of the police officer or the Court who or which grants it, and thus, it may happen that an offender might be prevented from enjoying his right to bail through inability to furnish bail in the amount required of him. Section 497 deals with cases of persons accused of non‑bailable offences who are arrested or detained without warrant by police officers or who appear or are brought before a Court, and divides such persons into two classes, namely, those in regard to whom there is reasonable ground for believ ing that they have been guilty of an offence punishable with death or transportation for life, and those against whom no reasonable ground for such belief exists. A person of the former class may not be released by a police officer who has him under arrest or detention without warrant, or by a Court before whom he "appears or is brought," but in regard to the latter class, such officers and Courts are given powers to release on bail, not only upon the first appearance of the person in question, but at any subsequent stage of the investigation, inquiry or trial, there being a provision that in the latter case release shall depend upon the absence of reasonable grounds for believing that such person has committed a non‑bailable offence. A further provision is made for the case of an accused person regarding whom the Court is satisfied at the conclusion of his trial that there are reasonable grounds for believing him not to be guilty; such a person may be released by the Court on furnishing a personal bond for attendance to hear judgment delivered. There is also a proviso saving the cases of persons under the age of sixteen years, of women and of sick and infirm persons; the Court may grant bail in these cases even though there is reasonable ground for believing that such person has been guilty of an offence punishable with death or transportation for life. Finally, subsection (5) of section 497 gives power to re‑arrest a person released on bail under this section; this is reserved to the High Court, the Court of Session and in regard to persons released by any other Court, such Court. It thus appear that discretion has been conferred upon police officers as well as Courts of first instance, to grant bail where the offence charged is non‑bailable, except where there is reasonable ground for believing that the accused person has been guilty of an offence punishable with death or transportation for life and such person is not one of the protected classes; in the latter class of cases these Courts have no power to grant bail, but in the former class the power is available not only at the I first appearance of the person accused, but at any subsequent stage of the investigation in certain specified circumstances which again call for the exercise of discretion. Bail may also be granted by a Court in the exercise of its discretion between the conclusion of a trial and the delivery of judgment. Thus, it is clear that the exercise of powers by a authorities acting under sections 496 and 497 requires the exercise of discretion in a number of different cases, and in several respects. One of these respects is as to the amount of the bail‑bond or security‑bond, and for this, provi sion of a directory nature is contained in section 498, which runs 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." For the purposes of this case, it will be necessary to consider the scope and object of the latter half of this section, and to determine by the usual processes of interpretation, what are the limits of the power con ferred upon the High Court or Court of Session, by the words employed. It may be stated at once that the High Court has no inherent powers, apart from those expressly mentioned in the Criminal Procedure Code, to grant bail in cases falling under that Code. This has been laid down authoritatively by their Lordships of the Privy Council in the recent case "Jairam Das v. King Emperor," I L R (1945) 26 Lah. 57; A I R (32) 1945 P C 94; 46 Cr. L J (66?), where the following observation occurs: "Their Lordships take 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 powers in a High Court relating to the subject of bail." (It may be mentioned that section 426 provides that in the case of an appeal by a convicted person, the Appellate Court may order that the execution of the sentence be suspended and the convict be released on bail or on his own bond). Their Lordships also observed at another place in the same judgment as under:- "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 a convicted person is to be found in section 426." These observations are of binding force, though it appears not to have been brought to the notice of their Lordships that subsection (2) and subsection (4) of section 497 expressly make provision for the grant of bail to persons at different stages after the commencement of a trial. That however is a question which does not arise in the present case, where we are concerned with a stage which may be described as the very earliest stage, namely, the stage at which a suspected person is about to be arrested by a Police Officer or a Court, in the exercise of powers under the Code. I have only referred to the case ''Jairam Das v. King Emperor" I L R (1945) Lah. 57: A I R (32) 1945 P C 94; 46 Cr. L J (662) in order to make it clear that this Court cannot claim to exercise any inherent power to grant bail at any stage of the proceedings, from the earliest stage mentioned above until it has become functus officio by deciding the appeal or other petition of a convicted person before it. Consequently, if there is a power in this Court to grant relief in the circumstances envisaged by the terms of the question which has been referred to this Full Bench for an answer, it must be derivable from the express terms of the Code itself. The conjunction within section 498 of two clauses so different in nature as those actually found is somewhat curious; clause I clearly directs Police Officers and Courts of first instance in regard to the fixing of the amounts of bail and security bonds, and the emphasis is clearly on the need for avoiding the fixing of excessive amounts; power to reduce the amount of bail required by a Police Officer or Magistrate is given by clause 2 expressly, and it may be supposed that this is exclusively in furtherance of the same purpose as is disclosed by clause 1, but another and a more important result also follows from the use of the words employed, namely, that by the application of the rule expressio unius est exclusio alterius, the High Court and Court of Session are deprived of the power of enhancing the amount of bail demanded by a Police Officer or Magistrate; This is, of course, not relevant to the present discussion, and I mention it only in order to indicate that the language employed by the draftsman in clause 2 of section 498 is of a nature both exact and comprehensive, which calls for careful appreciation for its due interpreta tion. The words which are relevant to the present discussion are: "The High Court may, in any case, direct that any person be admitted to bail." The use of these words section 498, which is clearly a section intended to supplement and complete the provisions of sections 497 and 498 justifies the belief that the power given includes a power to revise the exercise of discretion by Police Officers and Courts of first instance where bail has been refused, in the different clauses of cases specified in section 497 in regard to the question whether or not a person shall be released on 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 reversionary 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 persons 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 16 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. Any 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 expression used elsewhere in sections 496 and 497, viz., "released on bail." It must be supposed‑that by these two different expressions, different things are meant. Before proceeding to ascertain the exact meaning of the expression "direct that any person be admitted to bail" I propose to examine briefly the arguments advanced before us by the learned counsel on the two sides. In the main, the contention for the petitioner was that the High Court drew its powers from section 497 read with section 498, Criminal Procedure Code, and that the power became exercisable upon the appearance of the petitioner in Court, because by such appearance, he purported to surrender himself to the Court, i.e, placed himself in legal custody. The argument involves patent difficulties. 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 into custody. The very terms of the petitions which have been filed by the petitioners in the cases before us contain explicit assertions of their innocence, which makes it even more difficult to suppose that by their mere appearance before a Court, the Court gains the power of placing them in custody; for the least that is necessary for the exercise of the power of depriving the subject of his liberty is that the latter should either have committed a crime which involves this result, or that there should be a reasonable suspicion or reliable information against him that he has done some such act. It is a contradiction in terms for a petitioner to come to Court loudly pleading his innocence and at the same time to claim that his person should be taken into custody. Learned counsel was able to cite a decision of the Sind Chief Court which contains observation favouring the view he was advancing. This case is "Emperor v. Muhammad Fandh" A I R (21) 1934 Sind 131 ; 36 Cr. L J 711 wherein discussing section 497, Criminal Procedure Code, the learned judicial Commissioner observed as under:- "The first step which must be taken by any person who wishes to be admitted to bail is to appear before the Court and to surrender." A case in which the accused person seeking bail might be under arrest and consequently unable " to appear before the Court and to surrender " was apparently not within the contemplation of the learned Judicial Commissioner but what has also been overlooked is that there is an earlier step or at least a circumstance which must be in existence at an even earlier stage, namely, that a person seeking bail should either have committed an offence, or should be reasonably suspected of having done so. Consequently with great, respect, I feel unable to accept this state ment of the learned Judicial Commissioner as correct, and I, therefore, find it impossible to accept this argument advanced by learned counsel for the petitioner. The principle argument advanced on the other side by .the learned Advocate‑General was that when section 496 and 497 speak of a person who " appears before a Court " the reference must be to persons who attend in compliance with a summons issued by the Court under sec tion 204, Criminal Procedure Code, and to no other kind of appearance. The contention is acceptable only to the extent that, as has been seen already, mere voluntary appearance of a person before the Court does not entitle the Court, without more to make him into custody for the purpose of exercising the power of granting bail. It is also reasonable to suppose that the power of releasing on bail has been provided by the Code in relation to and as complementary to the power given elsewhere of compelling the attendance of persons. But the further argument of the learned Advocate‑General that the Code does not contemplate any action for the grant of bail otherwise than action which has the effect of releasing a person from custody whether actual or threatened does not appear, upon careful examination, to be well‑founded. He referred to section 496 and 497 where in each case power is given under which persons who are accused of offences may be "released on bail", and attempted to argue that the High Court could not exercise any power except that of releasing on bail. 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 instance. 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 should be admitted to bail who are not in custody. As I have pointed out above in examining the provisions of sections 496, 497 and 498, the powers given to the High Court by the last‑mentioned section and by subsection (5) of section 497 includes a power to control the direction of police officers and Courts of first instance as regards all the matters entrusted to them, with one possible exception, namely, as regards enhancement of the bail demanded. One of these matters is the decision whether or not a person who is suspected of a crime should be released on bail, but it is noteworthy that nowhere in the Code is it made obligatory upon a police officer or a Court of first instance to arrest any person other than a person, not being under the age of 16 years a woman or sick or infirm, who is reasonably suspected of having commit ted an offence punishable with death or transportation for life. I cannot find any provision in the Code requiring the arrest even of any person of this expected class, but the restraint imposed by section 497, Criminal Procedure Code, upon the powers of police officers and Courts of first instance to release such persons on bail, may be construed as a require ment that such persons should be arrested, 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 of 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 attend to the making of an order to such police officer to admit such person to bail. Such cases would necessarily be extremely rare, and by its very nature, the power to interfere with the discretion of an official such as a police officer exercising statutory powers perhaps at some remote place, at the very earliest stages of an investigation, would require to be exercised with the very greatest care. The Court would need to be satisfied that if it stayed its hands until the police officer had himself exercised his discretion in the matter and refused, upon arrest, to grant bail, a grave or irreparable wrong or injustice might result which it was in the highest degree desirable to avoid, while at the same time preserving the interests of justice so far as they related to the charge against such accused person. In the course of the arguments a number of cases were brought to the notice of the Full Bench in which Single judges of this Court had either granted bail or refused to grant bail in circumstances similar to those here present. In a number of these cases no reasons were given for the action taken, and in a recent case, Criminal Miscellaneous No. 59 of 1948, the only reason given was that there were precedents in favour of granting bail. In my humble opinion, while the weigh of precedents is not to be discounted, on the principle enunciated above namely that the power to make an order directing that a person be admitted to bail before he has actually been arrested should be restricted to exceptional cases, whose facts satisfy the conditions mentioned above, mere precedent is not by itself a sufficient guide, but the circumstances of each case as established on the record would need to be examined with great thoroughness and would be the determining factor in regard to the exercise of the power. In one case, that of Khawaja Nazir Ahmad (Criminal Miscellaneous No. 592 of 1943) my Lord the Chief Justice granted such bail, in the exercise of special power, to defeat what was held to be the object of the prosecuting agency in ordering the arrest, namely, to humiliate the petitioner, and speaking with great respect, on the view which I have taken above that was a proper case in which this exceptional power could be exercised. The only authority cited before the Full Bench which has any bearing upon the interpretation of section 498, Criminal Procedure Code, in the particular matter before us is the case of Johur Mat and others, 10 C W N 1093; 4 Cr. L J

221. There a Presidency Magistrate had issued warrants for the arrest of certain persons as suspects in a murder case. Before surrendering to the warrants, these persons peti tioned the High Court for grant of bail and this was Granted by a Division Bench. Mittra J. prefaced his judgment by remarking that he did not propose to say anything which will look like a pre‑judgment on the evidence that has already been adduced" and that ordinarily the Court did not grant bail in cases of that kind, but proceeded to observe that the High Court had, "power under section 498 of the Code to direct that any person should be admitted to bail in any case". The following observations then follow "The first matter which we have to look to is whether, in the words of section 597, there appear now reasonable grounds for believing that the accused persons are guilty of the offence of which they have been accused. If there appear no reasonable grounds for such a belief, the Magistrate who is now holding the inquiry before commitment had the power to direct that the persons accused should be released on bail; and in the exercise of the power which is given to us by section 498 of the Code, we can revise the order of the Magistrate and say that he should have exercised his discretion in granting bail." (The underlining (here italicised) is mine). The case was one in which the deceased was found lying dead at night on a footpath and while at the inquest the verdict was that the act was committed by persons unknown, evidence had been given before a Magistrate by the deceased's wife, which cast suspicion upon certain persons, as a result of which four persons other than the petitioners were arrested, and subsequently upon different allegations, not quite consistent with the allegations against the persons first arrested, warrants for the arrest of the petitioners for the same crime were issued. Mitra J. relied upon this inconsistency in reaching the conclusion that the petitioners should be allowed bail and observed as under: "On the conflict as regards the cases against the different persons accused in the same cases of murder, and the verdict of the Corner's jury we think it proper that until further evidence is adduced implicating the petitioners, they should be released on bail." That was a case where the power to admit to bail was exercised at a time when the persons affected were not under arrest, and it seems to me that the mere fact that warrants had been issued for the arrest of the petitioners does not affect the matter, since the Court of first instance had not at that stage applied its mind to the question whether or not the petitioners should be released on bail. Further, the facts as they appear from the reported judgment show that the case was of an exceptional nature in which the High Court's power to order that the accused persons should be admitted to bail could be exercised, confor mably to the view I have expressed above, before the Magistrate had applied his mind to the question of releasing them on bail. It therefore, constitutes a valuable support for the conclusions I have reached by pure interpretation of the statutory provisions. For the reasons given above, the reply which I would give to the question referred to us is 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. The exercise of this power should, however, be confined to cases in which, not only is good prima facie ground made out for the grant of bail in respect of the offence alleged, but also, it should be shown 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 from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm. Munir, Ag C. J.‑--I agree. Muhammad Sharif, J.‑--I agree. A. H. Answer accordingly.