Bail cannot be granted to a person who has not been arrested or for whom no warrant has been issued, and the concept of bail implies a form of previous restraint.

( 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.

( 3 ) FEARING that they might be arrested by the police, the respondents appeared before the Firs 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. "

( 4 ) 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.

( 5 ) THE complaint against the respondents was for an offence punishable under S. 353 I. P. C. According to the table in 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 proceeding before such Court to give bail, such person shall be released on bail. . . . . . . (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. If these three conditions are satisfied, bail is a matter of right of the accused and not of discretion of the Court.

( 7 ) IF a complainant 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 respondent for an offence under Section 353 I. P. C.

( 8 ) 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.

( 9 ) THERE is some divergence of opinion at 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 is 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;

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