Wanchoo, C.J.—The following question has been referred by a learned Single Judge for answer by a Division Bench:—

"Wether sec. 498 Cr.P. C. gives wider powers to the High Court or the Sessions Judge than those envisaged by sec 497 Cr.P.C.?"

The question has arisen in connection with an application for cancellation of bail granted by the Session Judge under sec. 498. The contention of the Government Advocate is that the conditions laid down in sec, 497 Cr.P.C. govern the grant of bail by the High Court or the Sessions Judge under sec. 498 and that section does not confer any power on the High Court or the Sessions Judge to give bail irrespective of the conditions mentioned in sec. 497.

2. Chapter XXXIX of the Code of Criminal Procedure deals with bail. It beginst with sec. 496 which provides for bail in bailable cases. Then comes J sec. 497 which provides for bail in non-bailable cases and the main restriction provided by sec. 497 is that bail shall not be granted if there appear reasonable grounds for believing that the person asking for bail has been guilty of an offence punishable with death or transportation for life. There is an exception to this in the case of persons below 16 years of age, or a woman or any sick or infirm person. The contention of the learned Government Advocate is that sec. 498 does not give wider power to the High Court or the Sessions Judge, and that if an application is made for bail under that section, the High Court or the Sessions Judge has to consider whether the restriction provided in sec 497 applies, and it is not (open to the High Court to grant bail on any , other consideration.

3. Sec. 498 has been on the statute book in one form or another since 1861. The point raised in this reference therefore has been the subject of decision by various High Courts in India, and the consensus of opinion is that this section is independent of sec. 497, and gives wide powers to the High Court or the Session Judge to grant bail irrespective of the restriction in sec. 497. There are a large number of cases in support of this view, and we shall only cite a few leading ones for our purposes.

4. In Ashraf Ali vs. Emperor(l) it was observed by the Calcutta High Court that the extended powers given to the High Court under sec. 498 are certainly not to be used to get rid of the very reasonable and proper provisions of law, namely sec. 497.

5. In King Emperor vs. Nga San Htwa(2), a full Bench of the Rangoon High Court decided that the discretion under sec. 498 is absolute, but the High Court must exercise it judicially and ought not to grant bail in cases punishable with death or transportation for life mentioned in s. 497 except for exceptional and very special reasons.

6. In Naranji Premji vs. Emperor (3) the Bombay High Court observed that:—

"in exercising our discretion under sec. 498 we should of course have proper regard to what is laid down in sub-sec., (1) Sec. 497 that bail shall not be granted in a case where there appear reasonable grounds for believing that the accused has been guilty of an offence punishable with death or transportation for life"

This clearly shows that the learned (Judges were of the view that the powers of the High Court under sec. 498 were not fettered by the restriction laid down in sec. 497, though the High Court should give proper regard to that restriction.

7. In K.N. Joglekar vs. Emperor (4) a Special Bench of the Allahabad High Court has held that sec. 498 was not controlled by the limitations of sec, 497 and confers upon the Sessions Judge and the High Court wider powers to grant bail, which are not handicapped by the restrictions in the preceding section. They went on to say that though the discretion was unfettered it could not be exercised arbitrarily but must be exercised judicially and that any one single circumstance would not necessarily conclude the decision which must be based on the cumulative effect of all the combined circumstances placed before the court.

8. In Emperor vs.

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