Wanchoo, C.J.—The following question has been referred to by a learned Single Judge of this Court to a larger Bench for decision—

"Whether the High Court or the subordinate courts have power under the Code of Criminal Procedure to grant bail to a person seeking bail even though he may not have been arrested or detained in custody and no warrant of arrest has been issued against him, but prays that a case has been registered against him by the police and he will be arrested and thereby disgraced if bail is not granted to him ?"

2. The circumstances, under which this reference has been made, may be briefly narrated. The applicants Jubar Mal and Panna Lal,who are residents of Ahor, district Jalore, made an application to the Sessions Judge. Balotra, for grant of bail under sec.498 of the Code of Criminal Procedure. They said that the police was trying to arrest them in order to insult and harass them, and they prayed for what is colloquially called anticipatory bail. This application was rejected, and thereupon they applied to this Court for grant of bail. They pointed out that a case under secs. 3 and 7 of the Essential Supplies Act has been registered against them, and was under investigation. They apprehended that they would be arrested in connection with that case, and would be harassed and insulted, and therefore they should be granted bail in anticipation of their possible arrest.

3. An offence under sec.7 of the Essential Supplies Act read with sec. 3 of that Act is a cognizable and non-bailable offence, as the punishment is three years imprisonment, and an officer in charge of a police station has the power to arrest a person charged with such an offence without obtaining a warrant from a Magistrate. When the matter came up for hearing before Modi J., learned counsel for the applicants relied on The State vs. Nath Mal(l) decided by another Single Judge of this Court. As Modi J. felt somewhat doubtful as to the correctness of that case because of the wide language in which is was expressed, he has made this reference.

4. Before we consider the arguments on behalf of the applicants, it is well to set out the relevant portions of sec. 497(1) and sec. 498 Criminal Procedure Code. Sec. 497 (1) is as follows—

"When any person accused 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 Court, he may be released on bail."

Sec. 498 is as follows—

".........; 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......"

5. The argument, so far as sec. 497 goes, is that the court is empowered by this section to order the release on bail of any person when one of three conditions is fulfilled, namely (1) when the person is arrested or detained without warrant by an officer-in-charge of a police station, (2) when by appears before the court himself, and (3) when he is brought before the court. It is urged that the present case and all cases of anticipatory bail are covered by the second condition, namely when a person appears before a court. If any covered by the second condition, namely when a person appears before a court. If any person appears before a court and is accused of any non-bailable offence, the court may release him on bail, and all that is required, according to these applicants, for their release on bail is that they should appear before the court. As to sec. 498, the argument is that the High Court or the Court of Session is empowered, in any case, to direct that any person be admitted to bail, and that there are on restrictions of any kind on this power. This wide interpretation seems to have commended itself to Bapna J., in The State vs. Nathmal(l). The learned Judge referred to Amir Chand vs. The Crown (2), and distinguished it and eventually made the following observations: —

"Here Nathmal had been an accused of a non-bailable offence and he

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