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State Of Mysore, Petitioner v. Baswanth Rao And Another, Accused
Structured Summary of the Opinion — Anticipatory Bail Question
Factual and Procedural Background
On 23-1-1964 the Tahsildar, Bhalki, lodged a complaint with the police at Dhanura alleging that while the Patwari of Malchapur was collecting revenue the respondents abused and assaulted the Patwari with shoes and obstructed the public servant from discharging his duties. The police registered a case under Section 353 of the Indian Penal Code and sent the First Information Report to the Magistrate.
Fearing arrest, the respondents voluntarily appeared before the First Class Magistrate, Bhalki, on 20-3-1964 and applied for bail. The Prosecutor opposed that application. The Magistrate ordered that the accused be released on bail on execution of personal and surety bonds of Rs. 500 each and directed the police be informed and that the accused should appear before the police at Dharwar for investigation when called.
The State filed a revision petition (Cri. Rev. Ptn. 20/6 of 1964) before the Sessions Judge, Bidar. The Sessions Judge examined the records, heard counsel, and concluded the Magistrate lacked power to grant bail when the accused had not been arrested nor had any warrant been issued; he referred the question to this Court under Section 438 Cr.P.C. The reference concerns whether a Court has power to grant what is called "anticipatory bail."
Legal Issues Presented
- Whether a Magistrate (or Court) has the power to grant "anticipatory bail" — that is, to admit a person to bail when that person has not been arrested, detained, nor has any warrant of arrest been issued against him.
- How Section 496 Cr.P.C. is to be interpreted in relation to the word "appears" and the requirement of previous restraint implicit in the concept of "bail".
Arguments of the Parties
Respondents' Arguments (as presented in the opinion)
- The respondents' counsel contended that the three conditions in Section 496 Cr.P.C. were satisfied: (a) they were accused of a bailable offence (Section 353 IPC); (b) they had appeared before the Magistrate; and (c) they were prepared to give bail (they executed personal and surety bonds). Therefore, they were entitled to be released on bail and the Magistrate was justified in granting bail.
- Mr. Jagannatha Shetty (learned counsel for the respondents) urged acceptance of a contrary line of authority (for example, the Full Bench of the Lahore High Court in Hidayat Ullah v. The Crown, AIR 1949 Lah 77 (FB), and certain decisions by Khan, J.) which support the power to grant bail in anticipation of arrest.
State / Sessions Judge's Position (as presented in the opinion)
- The Prosecutor opposed the bail application before the Magistrate.
- The Sessions Judge concluded that the Magistrate had no power to grant bail when the accused had neither been arrested nor had any warrant been issued for their arrest and accordingly referred the matter to this Court under Section 438 Cr.P.C.
Other Counsel Submissions Addressed by the Court
- Mr. Jagannath Setty (name appears in the opinion) contended that when a person is accused of a cognizable offence, the possibility or threat of arrest itself constitutes sufficient restraint to permit granting bail in anticipation of arrest; he relied on the Hyderabad High Court decision in Sunder Singh v. State, AIR 1954 Hyderabad 55.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Amir Chand v. The Crown, AIR 1950 EP 53 (Full Bench) | Defines "bail" as release from custody/prison and delivery into the hands of sureties; emphasizes that bail implies previous restraint. | The Court relied on this Full Bench's definition to support the proposition that bail presupposes a prior restraint (i.e., custody or arrest) and that bail cannot be granted to a person not under restraint. |
| State of Madhya Pradesh v. Narayan Prasad, AIR 1953 Madh Pra 276 | Cited for the definition/understanding of "bail" (authorities like Tomlins' and Jowitt's dictionaries noted). | Used to reinforce the textual and dictionary-based meaning of "bail" as involving prior restraint. |
| The Public Prosecutor (A.P.) v. G. Manikya Rao, AIR 1959 Andh Pra 639 | Holds that power to grant bail does not contemplate grant of bail to a person who is under no restraint. | Adopted as supporting authority that a person not under prior restraint does not require a bail order and thus cannot be granted bail in anticipation of arrest. |
| State v. Hasan Mohammad, AIR 1951 Nag 471 | One of the decisions following the view that bail cannot be granted to a person not arrested and for whom no warrant has been issued. | Cited among several High Court authorities representing the majority view, which the Court preferred. |
| Muzafaruddin v. State of Hyderabad, AIR 1953 Hyderabad 219 (Full Bench) | Followed the view that bail cannot be granted where the accused has not been arrested nor a warrant issued. | Included in the list of authorities supporting the majority position adopted by the Court. |
| State v. Sajjan Singh, AIR 1953 Pepsu 146 | Supports the majority view that anticipatory bail (where there is no arrest or warrant) is not permissible. | Relied on as part of the cumulative High Court authority favoring the Court's conclusion. |
| State of Uttar Pradesh v. Kailash, AIR 1955 All 98 | Another authority following the position that bail requires prior restraint. | Used consistently with other decisions to support the Court's preference for the majority view. |
| Juhar Mai v. State, AIR 1954 Raj 279 | Agrees with the Full Bench of the East Punjab High Court and adds that bail can be granted when an officer-in-charge manifests intention to arrest by delivering an order under S.56 Cr.P.C. | The Court noted this authority as limiting circumstances in which bail might be permissible even without prior arrest, but it was not applied to the present facts because no S.56 order had been made. |
| Hidayat Ullah v. The Crown, AIR 1949 Lah 77 (Full Bench) | Full Bench of Lahore favored a broader power to grant anticipatory bail, interpreting High Court powers (Section 498) as capable of directing that persons not in custody be admitted to bail. | The Court described this as a contrary view and expressly declined to follow it, preferring the reasoning of the East Punjab Full Bench. |
| State v. Mangilal, AIR 1952 Madh Bha 161 | A decision cited in support of the view that anticipatory bail can be granted (aligning with the Lahore Full Bench reasoning). | The Court examined these decisions but found them unpersuasive and preferred the majority view of other High Courts. |
| Abdul Karim Khan v. State of M.P., AIR 1960 Madh Pra 54 | Another decision argued to support anticipatory bail. | The Court considered it but did not accept it as outweighing the majority authority to the contrary. |
| Sunder Singh v. State, AIR 1954 Hyderabad 55 | The Hyderabad High Court view that the threat/power of arrest is a sufficient "restraint" for purposes of allowing bail (Section 497 Cr.P.C. was referenced in the opinion). | The Court considered this view and rejected it, holding that mere threat or possibility of arrest does not constitute the requisite restraint. |
Court's Reasoning and Analysis
The Court began with the statutory text of Section 496 Cr.P.C. (quoted in the opinion) and analysed the three conditions that must be satisfied before a person is entitled to be "released on bail" as of right:
- That the person is accused of a bailable offence;
- That the person has been arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court; and
- That the person is prepared to give bail.
The Court observed that if these conditions are satisfied bail is a matter of right and not of judicial discretion. Applying the facts: (1) the respondents were accused of a bailable offence (Section 353 IPC); (2) they had not been arrested nor detained, but had voluntarily appeared before the Magistrate and executed personal and surety bonds; and (3) they were prepared to give bail.
The Court acknowledged a divergence of authority on the meaning of the word "appears" in Section 496 — whether it covers voluntary appearance in the absence of any summons or warrant. Although the Court stated it was unnecessary to resolve that controversy for the present case and proceeded on the assumption that "appears" includes voluntary appearance, the Court nonetheless turned to the larger question of what "bail" and "released on bail" signify.
The Court reviewed dictionary definitions and judicial authority (notably the Full Bench of the East Punjab High Court in Amir Chand v. The Crown) to conclude that "bail" inherently implies a previous restraint — release from custody or prison into the custody of sureties. On that basis the Court accepted the majority view of High Courts that bail cannot be granted to a person who is under no restraint (i.e., who has not been arrested and against whom no arrest warrant has been issued).
The Court considered contrary authorities (notably the Full Bench of the Lahore High Court and certain decisions by Khan, J.) that supported anticipatory bail and also considered the argument that the mere threat or possibility of arrest constitutes sufficient restraint. The Court rejected these contrary views:
- It reasoned that voluntary freedom of movement persists until actual arrest, and a mere possibility of arrest does not operate as restraint for purposes of bail.
- It expressed respect for contrary opinions but found the majority of High Court decisions and the reasoning in Amir Chand (AIR 1950 EP 53 (FB)) persuasive and preferable to the view favouring anticipatory bail.
Applying these principles to the present case, because the respondents were not under arrest, no warrant had been issued, and no order under Section 56 Cr.P.C. had been made, the Magistrate lacked jurisdiction to release them on bail in anticipation of arrest.
Holding and Implications
Core Ruling: The reference is accepted and the Magistrate's order granting bail is set aside; the bail bonds stand cancelled.
Implications and immediate consequences:
- The Magistrate's order of release on bail is quashed and the bonds executed pursuant to that order are cancelled.
- The Court clarified that its ruling should not be construed as precluding the accused from applying to the Magistrate for bail at the appropriate stage in the future.
- The Court followed the majority view of the High Courts that anticipatory bail — in the form of granting bail where there has been no prior restraint (no arrest, no warrant, and no S.56 order) — is not permissible under the principles discussed.
The opinion does not indicate that it is establishing a novel precedent beyond applying and preferring existing High Court authorities; it primarily resolves the reference by preferring the majority line of authority and cancelling the specific bail order in this case.
1. An important question whether the Court has power to grant what is called ‘anticipatory bail’ arises for consideration in this revision case.
2. The Tahsildar, Bhalki, lodged a complaint on 23-1-1964 with the police at Dhanura that while the Patwari of Malchapur was collecting revenue, the respondents before this Court, abused the Patwari and assaulted him with shoes and thereby obstructed the public servant from discharging his duties. The police registered a case against the respondents under S. 353 I.P.C and sent the first information report to the Magistrate. Fearing that they might be arrested by the police, the respondents appeared before the First Class Magistrate, Bhalki, on 20-3-1964 and made an application praying that they might be released on bail. This application appears to have been opposed by the Prosecutor. The learned Magistrate passed an order on the same day as follows:
“Accused persons are released on Bail on their executing P and S bonds in the sum of Rs. 500 each. The concerned police be informed. The accused persons should appear before police, Dharwar for investigation as and when they are called.”
3. Against this order, the State filed a revision petition Cri. Rev. Ptn. 20/6 of 1964 before the sessions Judge, Bidar. After examining the records and hearing the counsel for State and the accused, the learned Sessions Judge felt that the learned Magistrate had no power to grant bail when the accused had not been arrested nor had any warrant been issued for their arrest. The learned Sessions Judge has made a reference to this Court under S. 438 Cr. P.C recommending that the said order of the Magistrate might be set aside.
4. The complaint against the respondents was for an offence punishable under S. 353 I.P.C According to the table on Schedule II to the Code of Criminal Procedure, this offence is a cognizable and also bailable offence. Grant of bail for a bailable offence is governed by Section 496 Cr. P.C, the relevant portion of which reads as follows:
496. In what case bail to be taken. — When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police Station, or appears or is brought before a Court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail … …
5. (The two provisos are not relevant for the present purpose.)
6. An analysis of the main part of the section makes it clear that on satisfying the following three conditions, namely,
(a) The person has been accused of a bailable offence;
(b) Such person has been arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court;
and (c) He is prepared to give bail; such person shall be released on bail.
7. If these three conditions are satisfied, bail is a matter of right of the accused and not of discretion of the Court.
8. If a complaint or a police report of a bailable offence is made against a person or he is suspected of having committed such an offence he will be a person accused of a bailable offence. This condition is satisfied in the present case, because the Tahsildar had filed a complaint against the respondents for an offence under Section 353 I.P.C
9. The respondents had not been arrested nor detained without a warrant by the police nor were they brought before Court. But they themselves appeared voluntarily before Court and made the application for grant of bail.
10. There is some divergence of opinion as to the interpretation of the word ‘appears’ occurring in Section 496 Cr. P.C One view is that the word ‘appears’ in the context of this section, means appearance in obedience to a summons or bailable warrant or in pursuance of an undertaking to appear contained in a bond executed by a person when he is arrested and released by the police; the word does not refer to voluntary appearance of the accused to whom no summons or warrant has been issued or who has not undertaken so to appear. The other view is, that a word ‘appear’ is wide enough to include voluntary appearance of a person accused of an offence even where no summons or warrant has been issued against him. But it is unnecessary for the purpose of the present case to ??? into this controversy. I shall proceed on the assumption that the word ‘appear’ includes voluntary appearance of the accused even in the absence of any summons or warrant. In that sense the respondents in the present case undoubtedly appeared, in person, before the Magistrate when they made the application for bail. The respondents-accused have also executed personal and security bonds as directed by the Magistrate.
11. The learned counsel for the respondents contended that as the respondents had satisfied all the above three conditions, the respondents were entitled to be released on bail by the Magistrate and that the learned Magistrate was justified in releasing them on bail.
12. In order to find out whether the respondents have satisfied these three conditions and could be granted bail, it is necessary to examine the meaning and implication of the words ‘bail’ and ‘released on bail’.
13. The preponderance of judicial opinion is that the words, ‘bail’ and ‘released on bail’ imply the accused being already in restraint and his being set at liberty from such restraint. In Amir Chand v. The Crown, AIR 1950 EP 53 (FB), Khosla, J., who delivered the leading opinion of the Full Bench, referred to the meaning of the word ‘bail’ as given in several Dictionaries. One of the meanings given in the New Oxford Dictionary is ‘temporary delivery’ or ‘release from prison’. Whartons' Law Lexicon explains ‘bail’ as ‘to set at liberty a person arrested or imprisoned, on security being taken for his 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.
14. Stroud's Judicial Dictionary explains, ‘bail’ as follows:
“Baile, is when a man is taken or arrested for felony, suspicion of felony, indicted for felony or any such case, so that he is restrained of his liberty. And being by law baileable, offereth surety to those which have authority to baile him, which sureties are bound for him to the Kings use in a certain summe of money, or body for body, that he shall appeare before the Justices of Gaole-delivery at the next Sessions, etc.,”
15. As pointed out by Dixit, C.J, in State of Madh Pra v. Narayan Prasad, AIR 1953 Madh Pra 276 the word ‘bail’ has been similarly defined in Tomlins' Law Dictionary and Earl Jowitt's Dictionary of English Law.
16. As observed by Khosla, J., in AIR 1950 EP 53 (FB) releasing an accused on bail means releasing him from custody or prison and delivering him into the hands of sureties. Therefore, the concept of bail implies a form of previous restraint.
17. As observed by Chandra Reddy, C.J in The Public Prosecutor, (A.P)… v. G. Manikya Rao…., AIR 1959 Andh Pra 639 the power to grant bail does not envisage the grant of bail to a person who is under no restraint. A person, who is under no previous restraint, does not need any order of bail as he is free to go anywhere he likes.
18. On this line of reasoning, the Full Bench of the East Punjab High Court opined in AIR 1950 EP 53 (FB) that bail cannot be granted to a person who has not been arrested and for whose arrest no warrants had been issued. This view has been followed by most other High Courts. Vide, The State v. Hasan Mohammad, AIR 1951 Nag 471; Muzafaruddin v. State of Hyderabad, AIR 1953 Hyderabad 219 (FB); State v. Sajjan Singh, AIR 1953 Pepsu 146; State Of Uttar Pradesh v. Kailash, (Accused)…Opposite Party., (S) AIR 1955 All 98; AIR 1959 Andh Pra 639 and AIR 1963 Madh Pra 276.
19. In Juhar Mai v. State, AIR 1954 Raj 279 Wanchoo, C.J, while agreeing with the view taken by the Full Bench of the East Punjab High Court in AIR 1950 EP 53 (FB) added that bail can also be granted when an officer-in-charge of a police station manifests his intention to arrest an accused without a warrant by delivering to the officer required to make the arrest, an order in writing under S. 56, Cr. P.C
20. But Mr. Jagannatha Shetty, the learned counsel for the respondent, has commended for acceptance the contrary view taken by the Full Bench of the Lahore High Court in Hidayat Ullah v. The Crown, AIR 1949 Lah 77 (FB) and the view taken by Khan, J., in State v. Mangilal, AIR 1952 Madh Bha 161 and in Abdul Karim Khan v. State of M.P, AIR 1960 Madh Pra 54.
21. In AIR 1949 Lah 77 (FB) the power of the High Court, to grant bail to a person suspected of an offence in anticipation of his arrest, came up for consideration. Cornelius, J., who delivered the opinion of the Full Bench, attached great significance to the difference between the language of S. 498, Cr. P.C, on the one hand and that of Ss. 496 and 497 on the other. His Lordship pointed out that while the words used in Ss. 496 and 497 are ‘released on bail’ the corresponding words in S. 498 are ‘direct that any person be admitted to bail’. His Lordship stated that the power of the High Court to direct that any person be admitted to bail, extends not only to grant bail to persons who are in custody of the High Court or an inferior Court or a police officer, but also includes a power to give directions that persons should be Admitted to bail who are not in custody. His Lordship further observed that there is no ground for supposing that the power of the High Court under S. 498 would not extend to making an order to the police officer to admit on bail a person against whom information had been laid before the police that he is guilty of non-bailable offence even though such person may not have been arrested or there was no warrant of arrest against him.
22. The Full Bench of the Lahore High Court was not considering the scope of S. 496 Cr. P.C Even as regards the scope of S. 498 Cr. P.C, the view of this Full Bench has been dissented from by the Full Bench of the East Punjab High Court in AIR 1950 EP 53 (FB) in which their Lordships have given elaborate reasons for not accepting the said view of the Lahore High Court. I am in respectful agreement with the reasoning in AIR 1950 EP 53 (FB).
23. In AIR 1954 Raj 279 Wanchoo, C.J, has pointed out that the view taken by the Full Bench of the Lahore High Court would lead to the following anamolous result. When an accused who is not under arrest and against whom no warrant for arrest has been issued, is granted anticipatory bail, his position may be worse off and he may lose his freedom and may be taken into custody, if he is unable to furnish security in terms of the order granting bail or if the sureties, furnished by him are subsequently found to be not satisfactory or if the sureties want to be discharged and he is unable to find fresh sureties.
24. In the two judgments of Khan, J., in AIR 1952 Madh Bha 161 and in AIR 1960 Madh Pra 54, I do not find any reason beyond those contained in the opinion of the Full Bench of Lahore High Court, to support the conclusion of his Lordship. I think the view taken by the majority of the High Courts should be preferred to the view taken by the Full Bench of the Lahore High Court and Khan, J., in the aforesaid two decisions.
25. Mr. Jagannath Setty contended that when a person has been accused of a cognizable offence, the possibility or the threat of the police arresting him will always be hanging over his head and such possibility or threat would itself be a sufficient restraint in order to enable the Court to grant bail and release him from such restraint. In support of this contention, Mr. Jagannath Setty relied on the following observations of a Bench of the Hyderabad High Court in Sunder Singh v. State, AIR 1954 Hyderabad 55.
“The Criminal Procedure Code authorises, the officer-in-charge of the police station to arrest the accused without a warrant in a non-bailable offence ……………. It cannot be said, therefore, that the accused is not without restraint. The threat and the power of the officer-in-charge of investigation of arresting the accused is always hanging on his head. That is a sufficient restraint, in our opinion, for the purposes of this section (S. 497 Cr. P.C).”
26. These observations were considered by Wanchoo, C.J, in AIR 1954 Raj 279 and by Chandra Reddy, C.J, in AIR 1959 Andh Pra 639 who expressed their dissent. It is difficult to see how a mere threat or possibility of an accused person being arrested could amount to a restraint on him. Until he is so arrested, he is free to move about as he likes. On investigation the police may find that there is not sufficient reason to arrest him; or on interrogation he may be able to give satisfactory explanation which may convince the police that there is no reasonable material to proceed against him. With all respect to their Lordships who decided AIR 1954 Hyderabad 55 I am unable to agree that a mere threat or possibility of arrest would be a restraint, for the purpose of granting bail.
27. In the present case, as the respondents had not been arrested nor was any warrant issued for their arrest, nor was there any order issued by any police officer under S. 56 Cr. P.C, for their arrest, the learned Magistrate could not grant bail merely in anticipation of any such action against them. In the result, this reference is accepted, and the order of the Magistrate granting bail to the accused, is hereby set aside. The bail bonds stand cancelled.
28. But, nothing stated in this order shall be construed as precluding the accused from moving the Magistrate for bail, if necessary, at the appropriate stage.
II/AGJ/R.G.D
Reference accepted.
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