P (PLP)

TYABJI, C. J.‑--This is an application which purports to be for bail under section 498 of the Criminal Procedure Code. The three applicants state that a report against them has been made to the police under sections 420, 448 and 406 of the Indian Penal Code which the police are investigating. These offences are cognizable, and an offence under section 406 is non‑bailable. The applicants have not been arrested and are not in custody. . .They allege that although they are respectable businessmen and the facts are not such as to justify their being kept, in custody, there is reason to apprehend that they will be arrested by the police and . kept in custody without being allowed to give bail. They assert that the investigating inspector has repeatedly been detaining theca. at the Police Station in an .unreasonable manner, and that after they had complained to the higher police officers against such harassment, the Inspector had threatened "to teach a lesson", to get the applicants arrested at odd hours", and to "disgrace the applicants in a terrible manner". The applicants state that these threats are likely to be carried out, which they contend would result in great injury to their reputation. They state :‑ "The applicants are prepared to face trial but they want to be saved against the disgrace and molestation with which the investigating‑ Police Inspector and the complainant have threatened. They are prepared to give substantial security for their appearance at the Police Station as well as in the Court. in case the matter is sent up". They therefore pray that this Court "be pleased to admit the applicants on bail" and rely on the recent Full Bench decision of the Lahore High Court in Hidayat Ullah v. The Crown A I R 1949 Lah. 77, per Cornelius, J. ; Munir, A. C. J. and Muhammad Sharif, J. concurring as supporting their contention that such a prayer can under such circumstances be granted. This application came up before me as a Single Judge; but as the Lahore decision appeared to require consideration by a Bench of this Court, the application was ordered to be heard by this Bench. The question raised before us is whether such an application by persons who are not‑in custody and cannot surrender to custody, as there is no order of arrest against them, can at all be regarded as an application for being "admitted to bail" under section 498 of the Criminal Procedure Code. The learned Advocate‑.General contends that it is not, and points out that; except for the Lahore Full Bench case and the unreported Lahore precedents referred to in it, the granting of an application of this sort would be wholly unprecedented. There is no doubt that the Lahore decision if accepted as correct would support the applicant's contention. Section 498 of the Criminal Procedure Code is as fellows :‑ "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". Cornelius, J.

while construing the words "...and the High Court or Court of Session may, in and case...direct that any person be admitted to bail discussed the question, when a person might be "admitted to bail", and in particular whether an order directing r that an applicant be "admitted to bas'." could be made, before the applicant had been arrested by the police or ordered by Court to be arrested and brought before it. He rejected that the contention 'that the Code does not contemplate any action for the grant 1 of bail otherwise than action which has the effect of releasing a person from custody whether actual or threatened He consider ed that a Police Officer or a Court might without contravening anything in the Criminal Procedure Code grant bail to a person anticipating arrest and seeking bail, without even causing the person to be formally arrested and reached the conclusion that of the High Court or Court of Sessions could, therefore, pass an order under section 498 directing that such a person be admitted to bail ; and that such an order could properly be made if it was "shown that if the persons 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 of some ulterior motive and with the object of injuring 'the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm", It appears to me to be impossible to accept the reasoning and the construction of the words of section 498 adopted in this decision. With all respect to the learned judges who decided this case, it appears to me that this decision is not compatible with the correct meaning of the words "be admitted to bail" and is not in accordance with the terminology used in the Criminal Proce dure Code with regard to bail. The meaning of the word ' bail" (then used as a verb as well as when used as a noun) is explained and defined in Wharton's Law Lexicon (14 Edition, p. 105) as follows :‑ Bail (Fr. bailer, Fr. to hand over), to set at liberty a person arrested or imprisoned, on security being taken for hiss appearance on a day and at a place certain, which security is called bail, because the party arrested or imprisoned is delivered into the hands of those who bind themselves or become bail for his due appearance when required, in order that he may be safely protected from prison, to which they have, if they fear his escape, etc the legal power to deliver him . It appears to me, therefore, to be incorrect to speak of admitting any person to bail unless and until he was in custody as incorrect as it would be, for instance, to speak of redeeming or foreclosing where there was no mortgage, or of a guardian where there was no ward Admission to bail necessarily and essentially implies the Substitution of the custody of the detaining authority by the control of the bail (surety) into whose hands 'the person bailed is delivered. This is the only sense in which the expression "to admit to bail' has, so far as I am aware, been used in England as well as in the countries within the Commonwealth, and this is the expression which is most commonly used for the act of permitting a person to custody to obtain his release by giving bail. An examination of the language of sections 57, 39, 62, 63, 64,1 of the sections (496 to 50:) in Chapter XXXIX, of section 4261 relating to release on bail, and of the forms prescribed for bailable warrants and for the bonds and bail‑bonds, which have to be executed when bail is given ('Cf. Forms II, 111, and XXV is Sched V) appears to rite to make it clear that; the terminology used in matters relating to bail,, in the Criminal Procedure Code, is in strictest conformity with the, definition of the word "bail" cited above ; and that the word "bail" is never used in the Code, except in connection with the ,release of, a, person formally or legally under arrest and in custody. The persons who may in the first instance be admitted to Gail under sections 496 and 497 must be persons in the custody of the police or in the custody of the Court. Persons in the custody of the police may either be persons arrested by the, police. without a warrant, that is an order of the Court, or persons arrested by private individuals and produced before the police under section

59. Such persons may remain in police custody either before being produced before a Court under section 61, or after such production under an order of remand under section

167. Persons in the custody of the Court may be, or may have been (1) arrested by the police without a warrant and brought before a Court under section 61, or (2) arrested under a warrant and brought before a Court or (3) persons who had appeared and surrendered to the custody of the Court after a warrant had 'been ordered to issue, or been issued against them, or were otherwise arrested after appearance by an order of the Court. Section 496 covers all cases where a person other than a person accused of a non bailable offence was in the custody of the police or of the Court; and is not limited only to accused persons. It clearly covers the case, for instance, or a recalcitrant witness arrested under section 90 and in the custody of the Court‑whether such a witness was arrested and brought before the Court under a warrant or had surrendered after an order of arrest, or was otherwise ordered to be under detention after appearance. Section 49; covers the case's excepted from section 496, that is of persons accused of non‑bailable offences in the custody of the police or of‑ the Court. In every case where a person is admitted to bail, the person released has to execute a bond, and his surety or sureties have to execute bail‑bonds, and the time when the person released is required to appear before the Court has to be stated in the bond as well as in the bail bonds. When the person released is an accused person, the offence with which he is charged has also to ‑be stated in the bond and is referred to in the bail-bonds The bonds and bail‑bonds contemplated by the Criminal Proce dure Code are documents 'intended to secure the appearance of persons who have been arrested and whose presence is required by Court and the terms of these documents make‑it clear that they can only be executed when the person to hp bailed is under arrest and in custody. Sections 466 and 497 not only empower, the police or the Court, as the case may be to admit a person in custody to bail but also, in proper cases, to discharge the person on big execut ing a bond, without sureties. In the latter case, when no bail is given, the person who was in custody is relegated to a position in similar to that of accused person against whom only su mmonses are issued and who are not arrested at all, or of witness from whom bonds are taken, for securing their attendance. In the Lahore Full Bench case a point was made of the fact that whereas the word "release" was used wherever a re lease on bail was intended in sections 496 and 497; the words used in section 498 are "any person may be admitted to bail". It was further pointed out that the powers of a High Court or Court of Session under section 498 were wider in the matter of granting bail than those conferred by sections 496 and

497. It is clear from the judgment that it was not doubted that the persons who might be "released" on bail under sections 496 and 497 were necessarily persons in custody. The conclusion reached' was that the expression "may be admitted to bail" was wider than may be released on bail", and did not necessarily involve the release of a person in custody. It was not noticed that in section 62 the words "whether such persons have been admitted to bail or not" were used in a context which makes it quite clear that the persons referred to were necessarily, persons arrested by the police, who if admitted to bail, would necessarily be released on bail. There is no reason for thinking that the words "admitted to bail" in section 49'S were intended to have a wider or a differ ent meaning than in section

62. It has also to be noted that the word "released" is used in sections 57(2), 496 and 497, which empower Courts to release arrested persons either on bail or on a bond without sureties and that it is used in section 59 (3) which empowers the Court to release an arrested person on bail, or on a bond without sureties (under section 57), or even absolutely. It is thus clear that the verb "release" was used in sections 57, 59, 496 and 497 in preference to the verb "admit', because the word, could be used with reference to a release on :;bail As well as with reference to a release on a bond without sureties ; and that the words "admitted to bail" were used in sections 62 and 498, where there was no need to refer to any release otherwise than on bail. Strictly speak ing, in every case of a release on bail there must first be an order of decision to admit the person to bail, which must be followed by the execution of the bond and the bail‑bonds, and finally the consequent release. Practically, of course, it does not make the slightest difference whether there be an order to admit a person to bail, or an order to release him on bail. For the reasons stated above, the words "any person" in section 498 cannot in my view, include any person who was not under arrest and in custody. To put the matter slightly differently, had' a draft been made of the section with the words "in custody" added after the words "any person", a fastidious draftsman would, I think, necessarily have scored out the words "in custody." As wholly redundant and therefore inelegant, as neither aiding anything which was not already clearly‑there nor taking away anything. The, wider construction of the section in the Lahore Full Bench case is, therefore, one of which in my opinion the words‑ are not capable: There is, therefore, no reason ‑to doubt the correctness of .the decision in Crown v. Khan Bahadur Muhammad Panah (1934) 28 S .L. R. 47, which merely Applied the principle ; don't leap before you' reach the stile. Mr. Aziz argued that even if it be held that no person, who was not `under arrest'' and in custody could possibly be ad mitted to bail; that an "admission to bail" necessarily implied the" existence of a person who was in custody, the words "may direct that any. person be admitted to bail" would still enable the Court to direct, not that the applicants be admitted to bail at present but that the police should admit the applicants to bail' if tad when the police considered it necessary to arrest, the applicants, and even though the police should consider that the applicants ought not to be released on bail It is obviously .impossible, it seems, to me, to accept any such construction, as the direction . contemplated by the words in their context was clearly, a direction to admit a person to bail at the time when the direction .was made: I would, however, add that even if I could have regarded the Words "may direct that any person be admitted to ball" in section 498 as also capable of the wider meaning adopted in the Labor Case, or of the other construction suggested by Mr. Aziz. which has been referred to above, I would still have felt compelled to, reject these constructions as not having been intended. The power conferred by section 498, exercisable on an application, such as the one therefore us, is clearly of a revisional character It is true that the powers of a High Court or Court of Ses sion, under section 498 extend to the cases of persons who have been committed to the Sessions or whose appeals or revision applications are pending, but no such person, could make an application of the kind before' us, as a person .who bad riot yet been arrested but only feared that he might be arrested, but a question such as the one before ,us bah only arise where there was a police investigation pending against the applicants, which had not been completes ; or conceivably in a case where the applicant had been summoned before a Magistrate and bad not been arrested, but, feared that he might be improperly remanded to custody and not allowed on bail by the Magistrate. In every such case the law conferred a discretion 'on the police or on the Magistrate to admit the person to bail or to refuse bait. It is true that the powers conferred by section 498 on the High Court of on the Court of Session are not controlled by the limitations contained in section 497 and may in certain canes consequently he greater than those which could property be exercised by the police or a Subordinate Court. But it is obvious from the terms of section ,498, that before the power conferred by the section in such cases could be exercised, there must be an order either refusing to admit the applicant to bail or fixing the amount of bail at an excessive figure. How can any construction of the section be accepted, which would' permit such a revisional power to be exercised before the subordinate authority or Court had passed any order which could be revised ? This is a most fundamental matter. It is clearly contrary to every judicial principle for a higher judicial authority to interfere by giving directions in anticipation of the exercise of the discretion legally conferred upon the subordinate authority. It is clearly only after the discretion legally conferred on the subordinate authority has been exercised that a higher judicial authority can enquire whether the exercise of the discretion by the subordinate authority was or was not proper, or whether in a case where the sub ordinate authority could. not grant bail, the High Court or Court of Sessions should grant bail. We are not dealing here with a section conferring administrative functions on an authority, but with a section conferring powers to be exercised by higher judi cial authority by way of revision. In King‑Emperor v. Khwaja Nazir Ahmad, I L R 1945, Kar. P C 89, their Lordships of the Privy Council pointed out : "The functions of the judiciary and the police are complementary and not overlapping." They emphasized "It is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province." In cognizable cases under investigation by the police, the Court's powers in the matter of bail only commence when the accused "is arrested or detained without warrant by an officer‑in‑charge of a police‑station", and sections 496 and 497 become applicable. This application is, therefore, not one for being "admitted to bail" at all as the applicants are not in custody, and this Court has no jurisdiction to interfere in any manner at this stage. The application must in my opinion, be dismissed. CONSTANTINE, J.‑-I agree with the Hon'ble the Chief Judge that the application should be dismissed. We are asked to pass a hypothetical or anticipatory order. With the applicant in effect desires us to do is to order that, if the police arrest him, then. he shall at once be admitted to bail in such and such, a sum with such and such sureties. We have no power to order the police not to arrest him (Vide the Privy Council case dismissed below). The ordinary notion of the words "admitted to bail" im plies that a person has been arrested pr that an order for his arrest has been issued. On the other hand, on the ground that the words "in any case" used in section 498 are in themselves very wide, it is argued that the section is susceptible of the con struction which the applicant desires. I consider the argument untenable. The first consideration is that .the Code has prescribed a method of dealing with arrest by the police, admission to bail by the police, and failing such admission, by the Courts and it would seem improbable that this anticipatory power, which the applicant; claims for High Court and Sessions Courts, should have been conferred in this obscure fashion‑by section

498. The words in any case" are explainable by reference to the limitation imposed on Magistrates by the preceding section in granting bail. Secondly we have the case of King‑Emperor v. Khwaja Nazir Ahmad, I L R 1945 Kar, P C 89, a case decided in appeal from the High Court of Lahore but which apparently wag not brought to the, notice of the Full Bench. The Privy Coun cil has been at pains to point out that it is of the utmost im portance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry the functions of the judiciary and the police are complementary, not overlapping. That was a case in which the Lahore High Court had decided that it had power to prohibit an investigation by the police. The Privy Council pointed out that the Court's functions begin when a charge ' is preferred before it and not until then, subject of course to the Court's powers under section 491 of Criminal Procedure Code, In the present case the application involves giving notice to the police to produce the results of their investigation as far as conducted at present and to rebut allegations of malice. Secondly, since 'ex‑hypothesi the investigation is not complete (for the applicant has not yet been arrested), the police may be hampered in further investigation, nor can we presume that further facts may not be discovered. To pass an order like that now requested requires an inquiry which, to my mind, involves interference with the functions of the police, a course which their Lordships of the Privy Council have held is not consistent with the Code. Furthermore against the wide construction of the words "in any case" argued by the applicant are those cases in culminat ing in jairam Das v. Emperor, A I R 1944 P C 9‑L, which it was hold that a High Court had no power to grant bail to a person appealing against his conviction to the Privy Council. It was held that the High Court being functus officio had no power here the Courts have not entered upon the performance of any office, the case being still in the stage of investigation. A. H.