( 1 ) THE following question has been referred to us for decision. "whether while dismissing a bail application an order can be made to the effect that applicant cannot be released on bail on any term whatsoever till the disposal of the case against him?" ( 2 ) THE question has arisen in the following circumstances. Applicant Ram Sahodar and Diganlal are being prosecuted for an alleged offence under S. 376, read with S. 34, Indian Penal Code. They applied for their release on bail before the Court of Session. Their application was rejected. They then came to this Court. By order, dt. 13-10-1984, passed in Misc. Criminal Case No. 2403 of 1984, Hon. Bhatt, J. rejected that application. However, while rejecting that application, the learned Judge observed :"there is no justification for grant of bail to the applicants-accused on any terms, whatsoever, till the disposal of the case against them, since there is already more than sufficient incriminating evidence, for their inculpation, in the investigation done so far. "thereafter, the applicant again moved the Court of Session for his release on bail as till then the challan was filed in the Court. The application was again rejected. The applicant repeated his prayer for his release on bail before this Court and filed an application for that purpose. It is Miscellaneous Criminal Case No. 248 of 1985. When the matter came up for hearing before Hon. Shukla, J. , he felt difficulty in re-considering the prayer in view of the aforesaid observations made by Hon. Bhatt, J. when he rejected the earlier application.

( 3 ) THE issue relating to bail, as pointed out in Babu Singh v. State of U. P. AIR 1978 SC 527, is one of liberty, justice, public safety and burden on the public treasury. Krishna Iyer. J. , who delivered the Judgment of the Court, emphasising the importance of liberty and noticing serious consequences coming out of refusing to take bail, observed :"personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Art. 21 that the crucial power to negate it is a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by 'law'. The last four words of Art. 21 are the life of that human right. "it is true that there is Constitutional sanction behind punitive proceedings in order to achieve security of the State and the larger interest of the public. Even so, the personal liberty of an accused is fundamental and can be circumscribed only by some process sanctioned by 'law'.

( 4 ) THE power to release a person on bail during investigation, inquiry or trial is contained in Ss. 436, 437, 438 and 439, which fall under Chapter XXXIII of the Criminal. P. C. 1973. Sections 436 and 437 appearing therein, in so far as are relevant for our purpose, read as under : "436. In what cases bail to be taken.- (1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer-incharge 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 proceedings before such Court to give bail, such person shall be released on bail; xxx XXX XXX 437. When bail may be taken in case of non-bailable offence.- (1) When any person accused of or suspected of the commission 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 a court other than the High Court or Court of Session, he may be released on bail, but he shall not be so released if There appear reasonable grounds for belie