Anticipatory bail cannot be granted to a person who is not under arrest and custody.

1. The question that arises for decision in this revision petition is whether under S.496, 497 and 498, Crl. P. C., bail can be granted to a person who has not been arrested on any charge of any non-bailable offence or for whose apprehension a warrant has not been issued, but who appears and surrenders before the court stating that he is apprehending that he would be arrested as the person suspected of the commission of a cognisable offence. The petitioners through their advocate appeared before the Sub Divisional Magistrate, Alwaye and applied for bail alleging that a case has been registered against them and others for offences of rioting, causing hurt etc. Some of the offences complained against them, namely, offences under S.326 and 452 were non bailable. Learned Magistrate dismissed the application on the ground that anticipatory bail cannot be granted.

2. It is contended on behalf of the petitioners that after the amendment of S.497 by Act 26 of 1955 and the addition of the words 'or suspected of the commission of the powers of the court in the matter of grant of bail has been widened so as to enable the court to grant bail to a person who was not actually under arrest and on whom no restraint had been put and who is merely suspected of the commission of the offence. It was pointed out that the expressions used in S.498 'in any case' and 'direct that any person be admitted to bail' would indicate that bail may be granted to any person who was not in custody or was not required to surrender to any custody but who merely apprehended arrest. Learned counsel also referred me to the decision in Abdul Karim Khan v. State of M. P. (AIR. 1960 M. P. 54). There, Khan, J., took the same view which he had taken in State v. Mangilal (AIR. 1952 M. B.161), but this decision has not been followed in a later case by the Madhya Bharat High Court in State v. Dallu Punja (AIR. 1954 M. B. 113), where it was held that anticipatory bail cannot be given.

3. The learned State Prosecutor contends that bail cannot be granted to a person who is not under arrest and custody and that having regard to the meaning of the word 'bail', admission to bail or release on bail necessarily and essentially implied the substitution of the custody of the detaining authority by the control of the surety into whose hands the person bailed out is delivered and that the appearance of a person in court, even if voluntarily could not give any power to the court to grant bail to the person in anticipation of arrest and that the words 'or suspected of the commission of inserted in S.497 by the amending Act of 1955 do not in any way override the meaning of the word 'bail' and enlarge the power of the court in the matter of grant of bail and the words 'in any case' and 'any person' used in S.498 Crl. P. C have not the effect of giving to the High Court or to the court of sessions any powers to admit any person to bail irrespective of the fact whether he had or had not been arrested and put under restraint at the time of applying for bail. Learned State Prosecutor referred to the decisions in Amir Chand v. Crown (AIR. 1950 E. P. 53); Muzafaruddin v State (AIR 1953 Hyd. 219); Juhar Mal v. State (AIR. 1954 Raj. 279); State of U. P. v. Kailash (AIR. 1555 All. 98); Amjad v. State (AIR 1959 Cal. 141) and the decision in Public Prosecutor v. Manioya Rao (AIR. 1959 A. P. 639); State of Madhya Pradesh v. Narayan Prasad (AIR 1963 M. P. 276) and the decision of the Mysore High Court in AIR. 1966. Mys. 71.

4. It is necessary to examine the provisions of S.496 and 497 which deal with the powers of the court in the matter of the grant or refusal of bail. S.496 deals with bailable offences and S.497 with non bailable offences. Sub-s. (1) of S.497 refers to a stage when the person accused of or suspected of the commission of the offence first appears or is brought before the court. At this stage there may be very little evidence to act upon and the matter of granting bail is pure