Augustine Paul J:

In this case Dato' Balwant Singh ("the accused"), an advocate and solicitor, was charged with an offence of murder. The charge reads as follows:

Bahawa kamu pada 7.6.2002 jam lebih kurang 4.30 petang, bertempat di Jalan Maarof, Bangsar di dalam daerah Brickfields, di dalam Wilayah Persekutuan Kuala Lumpur telah melakukan satu pembunuhan dengan menyebabkan kematian ke atas Gobala Krishnan a/l Rajamugundan, (No Kad Pengenalan: 690311-07-5247), dan oleh yang demikian kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 302 Kanun Keseksaan.

When the charge was read and explained to the accused he claimed trial. The defence then applied that the accused be enlarged on bail pursuant to s. 388 of the Criminal Procedure Code. The material parts of the section read as follows:

388 (1) When any person accused of any non-bailable offence is arrested or detained without warrant by a police officer or appears or is brought before a Court, he may be released on bail by the officer in charge of the police district or by that Court, but he shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life:

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of that officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

Where a person is charged with a bailable offence, he is entitled to be released on bail as of right (see PP v. Dato' Mat[1991] 2 MLJ 186, Sebastian v. PP[1968] 2 MLJ 214, R v. Lim Kwang Seng & Ors[1956] MLJ 178). In the case of a non-bailable offence, bail is at the discretion of the Court (see Lim Kiap Khee v. PP[1987] 2 CLJ 442; [1987] CLJ (Rep) 717). Section 388 deals with the question of bail in cases of non-bailable offences. The first matter for deliberation is the proper subsection of s. 388 that is applicable to this case. Section 388(1)becomes applicable when the accused "... appears or is brought before a court ...". In explaining the meaning of this phrase Mallal's Criminal Procedure5th edn says at para. 12454:

The expression 'appears' is used in relation to the issue of a summons whereas the expression 'is brought before a court' is used in relation to the issue of a warrant (see Bhramar v. State of Orissa1981 Cri LJ 1057; State v. Dallu Punja[1954] Cri LJ 1052).

The phrase thus restricts the applicability of s. 388(1) to the first production of the accused in court pursuant to a summons or warrant. The use of the phrases "... at any stage of the ... trial ..." and "... further inquiry ..." in s. 388(2)read against the background of the meaning ascribed to s. 388(1)is a reference to a trial that has already commenced with some evidence having been adduced. It is only then that the question of a further inquiry can arise. In this case the accused has just been produced in court pursuant to a warrant. The trial proper has not commenced yet. The applicable provision would therefore be s. 388(1). The general principle underlying the section is that bail may be granted at the discretion of the court in non-bailable offences. A qualification has been made in the case of offences punishable with death and life imprisonment whereby bail shall not be granted if there appears reasonable grounds for believing that the accused is guilty of such offences. It follows that where there are no reasonable grounds bail can be granted even in such cases a