Accused should be placed in custody and handed over to the authorities before their bail applications can be considered. Trial court should carefully consider the nature of the offense before granting bail.

P.R. Sharma, J.

1. This order shall govern Criminal Misc. Petitions Nos. 116, 117 and 118 of 1960 also.

2. A case under Sec. 307 I.P.C. was registered by the Madhoganj Police against the present petitioner Sukhlal and his three brothers Gulabsingh, Beharilal and Khuman. Be-fore their arrest could be effected all the four persons named above applied to the Sessions Judge Gwalior u/s. 498 Cr. P.C. for being released on bail Their applications were rejected on the sole ground that as they had not been put under arrest no order for bail could be granted. The learned Sessions Judge has dealt with at some length the decision of Hemeon J, in the case of State vs. Hasan Mohammad (A. I. R. 1951 Nag. 471) and a recent decision of this Court in Abdul Karim vs. State (1959 J.L.J. 480). He has preferred to follow the decision of Hemeon, J. I do not feel called upon in the present case to pronounce upon the propriety of the course adopted by the learned Sessions judge. I would only like to impress on his mind that In dealing with a matter of this type he should express his views in a manner which is not found to be lacking in form or propriety. I am definitely of the opinion that the learned Sessions Judge has himself fallen into an error by allowing the are caused to go back after they had surrendered to him. When a person who is accused of an offence presents himself before a Court with a prayer for being released on bail, he has immediate to be placed in custody and be handed over to the authorities concerned. Application for release on bail can be considered only after this has been done. To say that a person who has not yet been arrested and is evading the legal process cannot be released on bail and then to allow him to remain at large is to stultify oneself, I do not feel called upon or even entitled sitting as a Single judge to consider the corrections or otherwise of the view expressed by my learned brother Khan J. in Abdul Karim's case (supra). I feel that un-less I decide to refer the matter to a larger Bench I would be bound to follow his decision The position of a Sessions Judge can in no way be put on a better footing. These are matters of judicial etiquette which it is always to be expected that Judges of co-ordinate as well as sub-ordinate ranks would follow.

3. I found that a similar procedure was adopted before me by the learned counsel for the petitioner when these petitions came up for hearing on the 18th of October, 1960. The petitioners were not present in Court. The counsel was told that the applications could not be considered till his clients had surrendered and been placed under arrest, I am told now they have surrendered a the Madhoganj police station.

4. Considering the applications on their merits it would be sufficient to observe that the accused have been changed for an offence u/s 307 I.P.C. in respect of an assault in which only sticks are alleged to have been used. The medical report shows that only one grievous hurt on the head was caused. The other injuries which were on different parts of the body were simple in nature.

5. In this state of things the material question which will arise for consideration of the trial Court would be whether on the facts proved an offence u/s 307 I.P.C. is constituted or such of the accused as are proved to have taken part in the assault are liable for some lessor offence. It has been noticed by me that resort to the provisions of Sec. 307 I.P.C. is had by the police in a larger number of cases than is ultimately found to be justified. The accused should not except in cases where the facts alleged are such that if proved they would discovery make out case under Sec. 307 I.P.C. not be denied the benefit of the provisions regarding bail.

6. Without expressing any opinion on the merits of the case I would, therefore, order that the petitioners in all the cases mentioned above shall be released on their furnishing tail in the sum of Rs. 2000- each with one surety to the satisfact