( 1 ) BY this common order, both these petitions are disposed of.

( 2 ) THE apprehension of the counsel for the petitioners is that on appearance before the learned Metropolitan Magistrate pursuant to the non-bailable warrants they may not be released on bail in spite of the fact that the offence is bailable. This apprehension appears to be misplaced as in bailable offence the power of the Magistrate to procure the presence of the accused who has not been appearing despite service of summons by way of warrant of arrest with the direction to produce the accused before him is solely for the purpose of procuring his presence and the moment such a person is either produced in execution of warrant of arrest or appear on his own has to be released on furnishing bond with or without surety as liberty of no person can be curtailed, abridged or put in shelf in a case where he is entitled to be released on bail.

( 3 ) POWER to procure the presence of the accused through warrant of arrest flows from Section 89 of Cr. P. C which reads as under:-

"89. Arrest on breach of bond for appearance:- when any person who is bound by any bond under this Code to appear before a Court, does not appear, the officer presiding in such Court may issue a warrant directing that such person be arrested and produced before him. "

( 4 ) SECTION 436 of Cr. P. C is the protector of a liberty of a person which is so precious and sacroscant that it cannot be compromised at any cost. Section 436 of Cr. P. C provides that 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 words "shall be " are mandatory in nature and leave no discretion with the Court to send any person to judicial custody in case he appears or is produced by the officer in charge of a police station in execution of non-bailable warrants if that person 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.

( 5 ) SO much is the the importance of liberty of a person that the court has been given discretion under Section 436 Cr. P. C to discharge the person who appears on his own or is produced in pursuance of a non-bailable warrants on his executing a bond without sureties for his appearance in stead of taking bail from such persons.

( 6 ) IF any person against whom non-bailable warrants have been issued to procure his appearance in the bailable offence is sent to judicial custody in spite of the fact such a person is entitled to be immediately released on his executing a bond with or without sureties, it will amount to converting bailable offence into a non-bailable offence which is neither permissible in law nor is within the power or competence of the court.

( 7 ) NO criminal court can assume itself a function which is not conferred upon it by the Cr. P. C. It has to remain within its arena and cannot traverse beyond it. No court has any power or jurisdiction to send a person to a judicial custody in bailable offence if he is prepared to furnish bonds either on his appearance or when produced by the Police Officer by way of execution of non-bailable warrants. The courts are guardian of the liberty and life of citizens. If these two are threatened by any other agency, the court comes very heavily upon it. If such liberties are curtailed and abridged or thrown to the winds by the court themselves with sledge of hammer, it will be a sad day.

( 8 ) WHILE emphasizing the sanctity of a liberty of a person as enshrined in the Constitution, Supreme Court brought out the distinction between the power to arrest and justification of arrest in a very candid and guiding spir