Indian Penal Code, 1860 – Section 307 – Bail – The grant or refusal of bail depends upon the particular circumstances of each case. The mere fact that an offence is punishable by transportation for life is not by itself sufficient to refuse bail.
AIR 1953 Kant 132 : AIR 1953 Mys 132
KARNATAKA HIGH COURT
M. Hanumantha Reddy Vs. Government of Mysore
7 April, 1952
1. This petition was filed under
Section 497, Cr. P. C.
and another petition under Section 498 was filed on 4-4-52 in Court, supported by an affidavit and a Doctor’s certificate. Both these petitions contain a prayer for enlarging the petitioner on bail. The Advocate-General stated that there was no objection to treat the earlier petition itself as having been filed under Section 498.
2. For an alleged attempt made on 24-3-1952 to commit murder by strangulation, the petitioner was arrested and a case against him was registered under Section 307, I. P. C. The applications for bail filed by him in the Court of the City Magistrate, Bangalore, before whom he was produced in the course of investigation, have been rejected.
3. The offence under Section 307, I. P. C. is a non-bailable one. The Criminal Procedure Code under Section 496 provides for granting bail in offences Other than non-bailable, and Section 497 regulates the admission to bail in non-bailable cases. While under Section 496 a person may be released on bail invariably on an application in that behalf, Section 497 places a limitation on the powers of a Magistrate in that respect. A distinction is drawn under Section 497 between non-bailable offences which are punishable with death or transportation for life and other non-bailable offences. A Magistrate is vested with discretion to release any person accused of a non-bailable offence on bail except in cases where there appear reasonable grounds for believing that the person is guilty of an offence punishable with death or transportation for life. It is argued for the prosecution that the offence alleged to have been committed by the petitioner is of a grave and serious character punishable with transportation for life, that in the light of the evidence so far collected, the Magistrate has come to the reasonable belief that such an offence has been committed and refused to admit the petitioner to bail and that in such circumstances the High Court ought not to interfere with the discretion exercised by the Magistrate unless the order rejecting the bail is perverse or manifestly wrong. On the other hand, it is contended on behalf of the petitioner that no offence punishable with transportation for life has been committed and even so, the High Court has unfettered discretion under Section 498, Cr. P. C. to grant bail if the circumstances of the case permit, irrespective of the limitations imposed by Section 497 on the trial Magistrate.
4. The most important point for consideration is whether the High Court has extended powers under Section 498, Cr. P. C. The latter part of Section 493 runs thus:
“……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.”
The powers of the High Court and the court of Session under Section 498 are of a concurrent jurisdiction with that of a Magistrate. It is seen on a comparison of Sections 497 and 498 that the High Court is invested with power under Section 498, Cr. P. C. as a Court of superior, appellate or revisional jurisdiction and has vast powers to direct that any person be admitted to bail in any case. From the wording of Section 498, Cr. P. C.:
“It is manifest that the discretion given to this Court and also to the Court of Session, is unrestricted in any way by the terms of the statute. Two things follow from this, firstly that the discretion is one which must be judicially exercised and secondly that the Court has power if it does grant bail to grant it on such conditions as the circumstances of the case and the public interest may require.” (Per Boys J. in —
Emperor v. H. L. Hutchinson, AIR 1931 All. 356
at p. 360 (A)).
5. It has been strenuously argued that the direction given by Section 498 is limited by or in practice limited by, the conditions found in Section 497 and there is some support for the proposition in reported decisions but the preponderance of authority appears to be in favour of the view that under Section 498 the High Court has unrestricted powers for directing bail in any case to any person. The discretion of the High Court is not limited to the consideration set out by Section 497 but that consideration is to be considered along with all the circumstances of the case. I am therefore of opinion that Section 498 is not controlled by Section 497 so as to preclude the consideration by the High Court of the other circumstances in order to entitle any person to bail. No reported decision of this Court, directly bearing on this point, was brought to my notice but two unreported decisions were cited by the learned Advocate-General as supporting the proposition that Section 498 is controlled by Section 497. I am inclined to think that those cases do not support that view. In — ‘Cr. Petns. Nos. 7 and 13 of 1951-52 (B)’, the learned Judge observed that “the High Court is bound to follow the general law as a rule and not depart from it except under special circumstances, especially so in the initial stages of a case; see — ‘Boudville,
H. M. v. Ernperor’, AIR 1925 Rang 129 (C)
In other petition — ‘Crl. Petn. No. 121 of 1951-52 (D)’ where the argument that the High Court has extended powers was advanced at the Bar his Lordship Vasudevamurthy J. observed that: