Wanchoo, C.J.
1. The following question has been referred1 by a learned Single Judge for answer by a Division Bench
Whether Section 498, Cr.PC gives wider powers to the High Court or the Sessions Judge than those envisaged by Section 497, Cr.PC
The question has arisen in connection with an application for cancellation of bail granted by the Sessions Judge Under Section 498. The contention of the Government Advocate is that the conditions laid down in Section 497, Cr.PC govern the grant of bail by the High Court or the Sessions Judge Under Section 498, and that that section does not confer any power on the High Court or the Sessions Judge to give bail irrespective of the conditions mentioned in Section 497.
2. Chapter XXXIX, Criminal P. C, deals with bail. It begins with Section 496 which provides for bail in bailable cases. Then comes Section 497 which provides for bail in non-bailable cases, and the main restriction provided by Section 497 is that bail shall not be granted if there appear reasonable grounds for believing that the person asking for bail has been guilty of an offence punishable with death or transportation for life. There is an exception to this in the case of persons below 16 years of age, or a woman or any sick or infirm person.
The contention of the learned Government Advocate is that Section 498 does not give wider power to the High Court or .the Sessions Judge, and that if an application is made for bail under that section, the High Court or the Sessions Judge has to consider whether the restriction provided in Section 497 applies, and it is not open to the High Court to grant bail on any other consideration.
3. Section 498 has been on the statute book in one form or another since 1861. The point raised in this reference therefore has been the subject of decision by various High Courts in India, and the consensus of opinion is that this section is independent of Section 497, and gives wide powers to the High Court or the Sessions Judge to grant bail irrespective of the restriction in Section 497. There are a large number of cases in support of this view, and we shall only cite a few leading ones for our purposes.
4. In 'Ashraf Ali v. Emperor' AIR 1915 Cal 784 (A) it was observed by the Calcutta High Court that the extended powers given to the High Court Under Section 498 are certainly not to be used to get rid of the very reasonable and proper provisions of law, namely Section 497.
5. In 'Emperor v. Nga San Htwa' AIR 1927 205 (FB) (B), a Full Bench of the Rangoon High Court decided that the discretion Under Section 498 is absolute, but the High Court must exercise it judicially and ought not to grant bail in cases punishable with death or transportation for life mentioned in Section 497 except for exceptional and very special reasons.
6. In 'Naranji Premji v. Emperor' AIR 1928 Bom 244 (C) the Bombay High Court observed that
in exercising our discretion Under Section 498 we should of course have proper regard to what is laid down in Sub-section (1), Section 497 that bail shall not be granted in a case where there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or transportation for life.
This clearly shows that the learned Judges were of the view that the powers of the High Court Under Section 498 were not fettered by the restriction laid down in Section 497, though the High Court should give proper regard to that restriction.
7. In 'K. N. Joglekar v. Emperor' AIR 1931 AJ1 504 (SB) (D) a Special Bench of the Allahabad High Court has held that Section 498 was not controlled by the limitations of Section 497 and confers upon the Sessions Judge and the High Court wider powers to grant bail, which are not handicapped by the restrictions in the preceding section. They went on to say that though the discretion was unfettered it could not be exercised arbitrarily but must be exercised judicially, and that any one single circumstance would not necessarily conclude the decision which must be based on the cumulative effect of all the combined circumstances placed before the court,
8. In 'Emperor v. Krishana Gopal' AIR 1933 Lah 925 (E) it was held by the Lahore High Court that Section 498 gave a much wider discretion to grant bail to the Court of Session and the High Court than that given to subordinate courts by Section 497, and Section 498 is not controlled by limitations of Section 497.
9. In 'Emperor v. Mahammed Panah' AIR 1934 Sind 131 (F) it has been held that the High Court's power to grant bail Under Section 498 is not limited by the restriction imposed by Section 497(1); it was added that the High Court will not, however, grant bail in non-bailable cases except in special circumstances, and according to the exigences of each particular case. This is a Division .Bench case, and may be taken to overrule the earlier Sind case 'Gul v. Emperor' AIR 1928 Sind 142 (G), in which the view was taken that Section 498 must be interpreted as being controlled by the provisions of Section 497.
10. In 'Emperor v. Rani Abhairaj Kunwar' AIR 1940 Oudh 8 (H), the Oudh Chief Court held that Under Section 498 the High Court had power to release a person on bail in any case, that is to say the power of granting bail in non-bailable offence is unrestricted, but that power has to be used judicially and not in an arbitrary manner,
11. A review of these authorities shows that the High Courts in India are unanimous that the power of granting bail conferred on the High Courts and the Sessions Judges Under Section 498 was unfettered by the restrictions contained in Section 497, though that power must be exercised judicially and not arbitrarily after taking all circumstances into consideration including the limitations Under Section 497 (1).
12. Learned Government Advocate however urges that in view of the decision of their Lordships of the Privy Council in 'Jan-am Das v. Emperor' AIR 1945 PC 94 (I) this view taken by the High Courts in India is incorrect, and that the power conferred on the High Court and the Sessions Judge Under Section 498 is controlled by the provisions of Section 497. It may however be mentioned that 'Jairamdas's case (I)' was not directly concerned with the question whether the power granted by Section 498 to the High Court or the Sessions Judge was controlled by Section 497. The joint there for decision was whether it was open to the High Court to grant bail to a convicted person Under Section 498 in a case where that person had been granted special leave to appeal by His Majesty in Council.
Their Lordships of the Privy Council in that connection reviewed the provisions of bail in Chapter XXXIX, and pointed out that that Chapter was confined to cases of accused persons, and not to cases of convicted persons. Their Lordships also pointed out that the section dealing with convicted persons was Section 426. It was further pointed out that Section 561A could not be used to grant bail to a convicted person who had been granted special leave to appeal to His. Majesty in Council as the Code provided for bails to accused persons as well as to convicted persons, and there was no provision in the relevant sections for grant of bail to a person who was granted leave to appeal to His Majesty in Council.
During the course of this judgment their Lordships while reviewing the provisions of Chapter XXXIX remarked that
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 for subsidiary to that provision.
It is on these words that the learned Government Advocate strongly relies and urges that as the provisions in Section 498 are ancillary and subsidiary, they could not have been intended to confer extended powers on the High Court and the Sessions Judge irrespective of Section 497. There are not many cases of the period after this decision of the Privy Council on this point, but we may notice the views that are available,
13. In 'Kripa Shankar v. Emperor' AIR 194'8 All 26 (J) it was held that the powers conferred Under Section 498 upon a Sessions Judge were not handicapped by the restrictions in Section 497, though 'Jairamdas's case (I)' was not referred to in this case.
14. in 'Amir Chand v. The Crown' AIR 1950 EP 53 (FB) (K) a Full Bench of the East Punjab High Court was considering the question of what is colloquially called anticipatory bail. In that connection, Das C. J., as he then was, in the referring order remarked that Section 498 was ancillary or subsidiary to Sections 496 and 497 according to the Judicial Committee, and the first and the last sentences of Section 498 were clearly ancillary or subsidiary to Sections 496 and 497 in that they worked out the provisions of those last mentioned sections, and it was rather curious, to say the least, that the Legislature would introduce a far reaching provision conferring on the High Court and the Court of Session a wholly new and independent power for granting bail which was contrary to the etymological meaning of the term 'bail' in a sort of parenthesis sandwiched between two provisions with which it had nothing to do and which two provisions were clearly ancillary or subsidiary to Sections 496 and 497.
The Full Bench took the view that their Lordships of the Privy Council had examined the provisions of Section 498, Cr.PC in 'Jairamdas's case (I)', and came to the considered conclusion that this section did not confer any powers on the High Court or the Court of Session beyond the powers conferred by Sections 498 and 497.
15. Learned Government Advocate relies on this case also very strongly. But we must point out with all respect that their Lordships of the Privy Council had never said in 'Jairamdas's case (I)' in so many words that Section 498 did not confer any powers upon the High Court or the Court of Session beyond the powers conferred by Sections 496 and 497. What their Lordships said was that that section did not confer any power on the High Court to release convicted persons on bail.
We may also point out that in the referring order Das C. J., as he then was, also seems to have confined his view, when he referred to a far reaching provision having been made in parenthesis, to the case of anticipatory bail, and not to the question whether any words in Section 498 gave powers to the High Court or the Sessions Judge unrestricted by the limitations of Section 497 to grant bail to accused persons,
16. this Court also in two cases has followed the view held by other High Courts in India. In 'Manohar v. Jagdish' it was observed that the Sessions Court and the High Court were not bound Under Section 498, Cr.PC by the provisions of Section 497, yet they would not be justified normally to brush aside the said provisions.
17. In 'Kishan Singh v. The State', 1953 RLW 245 (M) the same view was reiterated.
18. Whatever authorities therefore are available support the view that the powers conferred Under Section 498 are not controlled by the provisions of Section 497.
19. Let us now look into section 498 itself which reads as follows
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.
The section obviously has two parts. The first part lays down that the bail demanded shall not be excessive. The second part gives the High Court and the Court of Session two powers, namely,
(i) the power to direct in any case, whether there be an appeal on conviction or not, that any person be admitted to bail, and
(ii) the power to direct that the bail required by a police officer or Magistrate be reduced.
The second part therefore of this section gives special powers to the High Court (i) of directing grant of bail in any case, and (ii) ordering reduction of bail demanded by a police officer or magistrate. There is nothing in Section 498 to show that its provisions are controlled by Section 497. The word 'whether there be an appeal on conviction or not' Have been interpreted ay their Lordships of the Privy Council in 'Jairamdas's case (I)' as meaning that all accused persons are within the section, whether their case is appeal able on conviction or not, thus giving powers to the High Court or the Court of Session to direct grant of bail in all cases whether any case is pending before them or not.
Learned Government Advocate argues that this is all that Section 498 means, and that when directing grant of bail under it the High Court or the Court of Session must take into account the provisions of Section 497 before giving such direction. We have already pointed out that there are no words in Section 498 which show that it is controlled by Section 497. It is true that their Lordships of the Privy Council said in 'Jairamdas's case (I) that the provision ol Section 498 was ancillary or subsidiary to Sections 496 and 497.
At the same time, however, it must be remembered that their Lordships were dealing with a case of bail of a convicted person, which would not fall under any of the provisions of Chapter XXXIX at all, and not with the case of an accused person which does fall under these provisions.
It is difficult to hold that their Lordships were overruling, by the use of the words 'that Section 498 was ancillary or subsidiary', the mass of authorities of the Indian High Courts to the effect that the power to grant fail Under Section 498 was not controlled by the provisions of Section 497. It appears strange that their Lordships should have done so in this very indirect manner in a case where they were only concerned with a convicted person who had been granted special leave to appeal to His Majesty in Council, and were not concerned with the powers of the High Court Under Section 498 to grant bail to accused persons.
It would, in our opinion, be reading too much into the words used by their Lordships of the Privy Council to say that they were in this manner overruling the mass of authority in India on this point.
20. The Indian High Courts have taken the view that the very general words used in Section 498, namely that the High Court or the Court of Session may, in any case, direct that any person be admitted to bail, clearly show that the limitations imposed by Section 497 (1) were not to apply to this provision. If the intention of the Legislature was to apply those limitations here also, it would have been very easy to add the words 'subject to the provisions of Section 497' in Section 498 after the words 'admitted to bail'. We are, therefore, of opinion that the meaning given to these words by practically all the High Courts in India should be accepted as the correct interpretation, and that the decision of their Lordships of the Privy Council in 'Jairamdas's case (I)', did not overrule that interpretation.
We cannot also fail to point out that if the interpretation given to this provision of Section 498 by the High Courts was incorrect, the Legislature would have intervened and made the position clear by a suitable amendment of Section 498, particularly when we know that the Code has been amended a number of times after it was enacted in 1898., Particularly the amendments of 1923 were of a far j,' reaching nature, but even then Section 498 was not touched.
We may also point out that in the recent bill which is before Parliament for amendment of various provisions of the Code, and which is also of a far reaching nature, this provision of Section 498 has not been touched, though a specific provision has been made giving power to the High Court or the Sessions Judge to cancel bail granted under' Section 498.
Under these circumstances, it seems to us only right that we should give the same interpretation to these words in Section 498, which has been generally given to it up to now by the High Courts in India except for 'Amirchand's case (K) We have already given reasons why we cannot with all respect agree with the learned Judges, who decided that case, in the extension that they have made of the Privy Council's decision in Jairamdas's case (I)'.
21. We are, therefore, of opinion that Section 498, Cr.PC gives wider powers to the High Court or the Sessions Judge than those envisaged by Section 497, and it is not controlled by the limitations imposed by that section. At the same time, we should like to point out that the principle enshrined in that section, namely that a person accused of a non-bailable offence punishable with death or transportation for life should not be released on bail if there appear reasonable grounds for believing that he is guilty, should, as far as possible, be respected by the High Court or the Sessions Judge in granting bail Under Section 498.
In any case, the question whether there appear reasonable grounds for believing that a person has committed an offence punishable with death or transportation for life should always be gone into, and if there are reasonable grounds for such belief, bail should not generally be granted unless there are exceptional circumstances justifying the grant of bail in spite of such belief. It is not possible to make a list of such exceptional circumstances, and each case will have to be decided on the cumulative effect of all circumstances put before the court.
But the court should never lose sight of the restriction to be found in Section 497 (1), and should only overrule it if there are clear circumstances of an exceptional nature justifying such a course.
22. Our answer therefore to the question put to us is that Section 498, Cr P. C, gives wider powers to the High Court or the Sessions Judge than those envisaged by Section 497; but such powers should be exercised in a judicial and not in an arbitrary manner keeping in view the considerations which we have mentioned above. Let this answer be returned to the Bench concerned.