The High Court or Sessions Court does not have the power to grant anticipatory bail to a person who was not arrested or against whom no warrant was issued or who has not surrendered himself in Court.

( 1 ) THIS application for cancellation of the Bail granted to the respondent by the Sessions Court, Nalgonda, raises an important and interesting question as to the power of the High Court to grant bail to a person, who was not arrested on any charge of non-bailable offence, or for whose apprehension a warrant has not been issued or who has not surrendered himself in Court but merely apprehends that he might be arrested.

( 2 ) THE respondent, along with nine others, was charge-sheeted under Section 302, I. P. C. , for having beaten to death one Raj Narsi Reddi on 9-10-1958. No warrant was issued for the arrest of the respondent notwithstanding the filing of a provisional charge-sheet. Meanwhile, the wife of the respondent moved the munsif-Magistrate, Suryapet, to enlarge him on bail alleging that he was sick. This was dismissed by the Magistrate as he thought that the accused was not so seriously sick as to be unable to attend Court. Shortly thereafter, an application was filed before the Sessions Judge for the same relief on the same grounds with this addition that the Police were after the respondent. The Sessions Judge directed the release of the respondent overruling the objection of the Public Prosecutor that the accused could not be released on bail since he was neither arrested nor had he appeared in Court as contemplated by Section 497, Cr. P. C. , as he felt bound by a ruling of the erstwhile Hyderabad High Court in Muzafaruddin Mohammad v. State of Hyderabad, AIR 1953 Hyd 219 (FB) and Sunder Singh v. The State, AIR 1954 Hyd 55. which followed the Full Bench. It is this order that is sought to be cancelled now.

( 3 ) IN support of this petition, it is urged by the Public Prosecutor that the Sessions Court had no power to grant what may be called anticipatory bail. The answer of the counsel for the respondent to this is that the conditions envisaged in Section 497, Cr. P. C. , had been fulfilled in that the respondent appeared through counsel in Court or that, at any ate, the Sessions Court, acting under Section 498, had ample powers to release the accused on bail even if he was not apprehended.

( 4 ) AS the controversy revolves round Ss. 497 and 498, Cr. P. C. , it is convenient to read those two sections here so far as they are material for this enquiry. "section 497 : (1) When any person accused of or suspected of the commission of any 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, he may be released on bail but he shall not be released if there appear, reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. SECTION 498 : (1) 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, wse, whether there be an appeal on conviction or not, direct that any person be admitted to bail, or that the bail required by the police officer or Magistrate be reduced. " We propose to take up first the question whether Section 498, Cr. P. C. , authorises the High Court or the, Sessions Court to admit a person to bail in anticipation of arrest. Diverse views have been expressed on this question and we will deal with them presently. We will first fry to interpret the section on its language. The contention that such power exists is based upon the expressions may, in any case, and direct that any person be admitted to bail occurring in Section 498. The pertinent question is whether these words confer authority on either the Sessions Court or the High Court to bail out an accused irrespective of the conditions envisaged in Section 497, Cr. P. C. In