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Petitioner: THE CROWN VS Respondent: KHUSHI MUHAMMAD
P L D 1953 Federal Court 170
P L D 1953 Federal Court 170
(Appellate Jurisdiction)
Before Abdul Rashid, C. J., A. S. M. Akram and M. Shahabuddin, JJ
THE CROWN‑Appellant
versus
KHUSHI MUHAMMAD‑Respondent
Criminal Appeal No. 12 of 1951, decided on 27th March 1953.
(On appeal from the order of the High Court of Judicature at Lahore, dated the 14th December 1950, in Criminal Miscellaneous No. 722 of 1950).
(a) Interpretation of Statutes‑
Words‑Diversity of‑Does not necessarily involve substantial difference in meaning.
A diversity of terminology does not necessarily involves subs tantial difference in meaning.
Liversidge v. Sir John Anderson 1941 A C 206 ref.
(b) Criminal Procedure Code (V of 1898),
S. 498‑Bail‑Not possible unless applicant in custody or under some form of restraint.
A person cannot be admitted to bail against whom a report has been lodged at the police station but who has not been placed in custody, or under any other form of restraint, or against whom no warrant for arrest has been issued. In the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be granted under section 498 if he appears in Court and surrenders himself.
Section 498 does not in any way enlarge the categories of parsons to whom bail can be granted under Chapter XXXIX. This necessarily leads to the inference that such persons must be under custody before they can be given any relief by the High Court or the Court of Session.
Under sections 496 and 497 an accused person can be released on bail. This presupposes that the accused person is under some sort of restraint. If section 498 is ancillary or subsidiary to sections 496 and 497 it cannot be said that this section empowers the highest Court to grant bail to persons who have not been put under any restraint whatever. If this were so, the ancillary and subsidiary section would be enlarging the powers granted to the Courts under the principal sections, namely, 496 and 497. It is difficult to hold that the Legislature would embody in a subsidiary or ancillary section a provision which deals with persons other than those who fall within the purview of sections 496 and 497. If section 498 were given the wide interpretation envisaged in the case of Hidayat Ullah Khan, section 498 would not be ancillary or subsidiary, but would be wholly independent of the powers con ferred on the High Court or the Court of Session by sections 496 and 497.
The basic conception of the word "bail" is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. This is the meaning which has been given to the word "bail" in Standard English Dictionaries as well as in Wharton's Law Lexicon and Stroud's Judicial Dictionary. This is also borne out by the form of bond and bail bond given Schedule V of the Cr. P. C. This basic conception of the meaning of the word "bail" has not been adverted to in the Full Bench judgment in the case of Hidayat Ullah Khan.
Hidayat Ullah Khan v. The Crown P L R (1949) Lah. 65=P L D 1949 Lah. 21 overruled.
Muhammad Abbas v. The Crown P L R 1949 Kar. 95= P L D 1950 Sind 80, Lala Jai Rain Das and others v. The King Emperor 72 I A 121 and Amir Chand v. The Crown A I R 1950 East Pb. 53 ref.
(c) Criminal Procedure Code (V of 1898),
S. 498‑Powers not merely of revisional character but concurrent with Court of first instance.
The powers of the High Court under section 498, are not merely revisional but are concurrent with those of the Court of first instance.
Muhammad Abbas v. The Crown P L R 1949 Kar. 95=P L D 1950 Sind 80 ref.
M. Sleem, Senior Advocate, Federal Court (Ghias Muhammad and Muhammad Ismail Bhald, Advocates, Federal Court, with him) instructed by Ijaz Ali, Attorney for Crown.
Qalandar All Khan, Advocate, Federal Court, instructed by Muhammad Siddiq, Attorney for Respondent.
Dates of hearing : 4th, 5th and 6th March 1953.
JUDGMENT
ABDUL RASHID, C. J.‑This appeal raises the important question whether a High Court or Court of Sessions can grant bail to any person against whom a report relating to a cognizable offence has been lodged with the police, but who has not been taken into custody. There is a divergence of judicial opinion on the question, and it is desirable that this conflict should be resolved.
On the 14th of November 1950, Khushi Muhammad respon dent presented a petition in the Court of the Sessions Judge, Lahore stating that one Mian Muhammad Sadiq had reported to the Police Station Khudian that his daughter Mst. Mumtaz Begum had been taken away by the petitioner and four others on the 16th October and the police were investigating the case. According to the petitioner the real facts were that Muhammad Sadiq had betrothed his daughter to the petitioner and had provided him with accommodation in his own house. He was living with Muhammad Sadiq as a member of the family and as a would‑be khanadamad. After Muhammad Sadiq had fixed a date for the marriage of the petitioner with his daughter, he gave away the daughter in marriage to another person who belonged to a faction inimical to the petitioner. In order to institute a false case against him Muhammad Sadiq had made a report against the petitioner under section 366 of the P. P. C. The petitioner, a respectable man, apprehended that he would soon be taken into custody by the police. In these circumstances, it was prayed that the petitioner "may be released on bail pending investigation and trial if any." This petition was disposed of by the Sessions Judge in a brief order the next day. This order is in the following terms :‑
"This is an application on behalf of Khushi Muhammad for bail in anticipation of his possible being arrested for the offence punishable under section 366, P. P. C. His learned Advocate has argued that the case against him will prima facie be a week one, but that is not enough for the grant of an order of this nature. He entirely failed to satisfy me that if the petitioner were to be arrested and refused bail, such an order would in all probability be made not from motives of furthering the ends of justice in relation to the case, but for the some ulterior motive and with the object to injure the petitioner, or that the petitioner would in such an eventually suffer irreparable loss. I, therefore, reject this petition."
After his petition had been dismissed by Sessions Judge, Khushi Muhammad waited for a fortnight and then presented a petition in the High Court the contents of which are practically identical with the petition presented by him in the Court of the Sessions Judge. The petition in the High Court was accompanied by several affidavits. This petition was heard by Mr. Justice Kayani on the 14th December. He made the following order :‑
"Mr. Qalandar Ali Khan for the petitioner : Mr. Abdul Aziz Khan, A. G. for the Government.
He has brought to my notice a Full Bench case of East Punjab A I R 1950 East Pb. 53, (Amir Chand v. Crown) and a Division Bench case, P L D 1950 Sind 80 (Muhammad Abbas v. Crown) which have taken a contrary view to P L R (1949) Lah. 65 (F B). In view of the Full Bench decision of this Court, however, I would accept this petition and direct that if it is intended to arrest him, he should be released by the District Magistrate if a bail bond is furnished to his satisfaction."
Against this decision, a petition for special leave to appeal to this Court was presented by the Advocate‑General, Punjab, on the 20th December 1950. We granted leave on the 14th February 1951.
Mr. Justice Kayani has based his decision on the judgment of a Full Bench of the Lahore High Court in the case of Hidayat Ullah Khan v. The Crown (P L R (1949) Lah. 21). It is, therefore, necessary to examine this decision with care. The question formulated by the Full Bench was as follows :‑
"Where the High Court can grant any relief, and if so what, to a person seeking an order for bail, in anticipation of his arrest for an offence?"
This question was answered in the affirmative, and it was held that in a proper case, the High Court had power under section 498, Cr. P. C. to make an order that a person who is suspected of an offence for which he may be arrested by a police officer or a Court, shall be admitted to bail. Tire reasoning of the Full Bench has been summarised in a comparatively short passage which runs as follows :‑
"The language employed by the draftsman in the second clause of section 498 is of a nature both exact and comprehensive which calls for careful appreciation for its due interpretation. The words which are relevant in the present discussion are :‑
"The High Court may, in any case, direct that any person be admitted to bail."
"The use of these words in section 498, which is clearly a section intended to supplement and complete the provisions of sections 497 and 498 (probably section 496 is meant) justifies the belief that the power given includes a power to revise the exercise of discretion by public officers and Courts of first instance where bail has been refused, in the different classes of cases specified in section 497, in regard to the question whether or not a person shall be released on a bail (the discretion to fix the amount of bail which falls to be exercised under sections 496 and 497 is revisable, but for the purposes of reduction only, as seen above). But the words employed are wider than are necessary merely for giving a revisionary jurisdiction to the High Court over such acts of police officers and Magistrates; they include clearly a power in the High Court to grant bail to person to whom the police and the Courts of first instance are not permitted by section 497 to grant bail, namely persons who are not under sixteen years of age or of the female sex or sick or infirm, against whom there appears a reasonable ground for believing that they have been guilty of offence punishable with death or transportation for life. And finally, there is significance to be attached to the use of the expression "direct that any person be admitted to bail" which must be distinguished from the expression used elsewhere in sections 496 and 497 via., "released on bail". It must be supposed that by these two different expressions, different things are meant .."
"As I have pointed out above, the High Court has power to "direct that any person be admitted to bail", and giving these words their full weight, I see no escape from the conclusion that the power extends not only to the grant of bail to persons who are in the custody of the High Court or of an inferior Court or a police officer, but also includes a power to give directions that persons should be admitted to bail who are not in custody."
It is clear from the quotations given above that in the opinion of the learned Judges of the High Court the words "direct that any person be admitted to bail" occurring in section 498 of the Cr. P. C. confer a much wider power on the High Court than is conferred by sections 496 and 497. It has been observed that as the words "released on bail" are used in section 497 and the words "admitted to bail" occur in section 498 different things must be meant as different expressions have been employed. With the utmost respect to the learned Judges, it does not appear to me to follow necessarily. that a diversity of terminology involves substantial difference is meaning. In this connection, reference may be made to the following observations of Lord Macmillan in the well known case of Liversidge v. Sir John Anderson (1941 A C 206) :
"I must not omit to notice the appellant's argument founded on the contrast between the opening words of the regulation in conferring the power of detention on the Secretary of State and the words used elsewhere in the regulations when other powers of an admittedly discretionary character are conferred on him and on others. The argument is that where different words are used a different meaning is intended. The argument by contrast is of little assistance in the present instance, for the regulations have observed no uniformity of language. Lord Blackburn, the Blackburn, J., once said that you ought "never to change the form of words unless you are going to change the meaning, and it would be as well if those who are engaged in the prepara tion of Acts of Parliament would bear in mind that that is the real principle of construction. But, "he went on to say, In drawing Acts of Parliament the Legislature, as it would seem, to improve the graces of the style and to avoid using the same words over and over again constantly changes them" ;
"Hadley v. Perks. The regulations before your Lordships certainly exhibit a remarkable diversity of terminology. Thus I find the following expressions used with relation to various powers confided to various persons : "If it appears to the Secretary of State" : If the Secretary of State is satisfied" ;
"if he considers it necessary" ; "Where it is shown to the satisfaction of" : "reason to believe." More intensive study of the regulations would probably disclose further variations in language where there is no substantial difference in meaning and effect. The argument that when the regulations mean different things they use different language and when they mean the same thing they use the same language breaks down, regret able as this must be to the drafting purist."
An examination of the terms of sections 496, 497 and 498 indicates that they constitute a complete code for the grant of bail to accused persons as distinguished from convicts. Section 496 of the Code deals with the granting of bail to persons accused of bailable offences who are arrested or detained without warrant by an officer in charge of a police station or are brought before a Court. It is laid down that such persons shall be released on bail, but if the Court thinks fit, instead of taking bail from them, such persons may be discharged on their executing bonds without sureties for their appearance. Section 497 deals with non‑bailable offences and authorizes the Court to release accused persons on bail with the qualification that such persons shall not be released on bail if there are reasonable grounds for believing that they are guilty of offences punishable with death or transportation for life. An exception has, however, been made in the case of persons under the age of sixteen years or any woman or any sick or infirm person accused of an offence punishable with death or transporta tion. The words in this section throughout are "The accused person may be released on bail." Subsection (4) deals with the granting of bail to an accused person after the conclusion of the trial and before judgment is delivered. Subsection (5) authorizes the Court to order the arrest of a person who has been released on bail and provides that he may be committed to custody. Then follows section 598 on which reliance is placed on behalf of the respon dent. It authorizes the High Court or Court of Session to admit a person to bail in any case. In their decision in the case of Lala Jairam Das and others v. King‑Emperor (72 I A 121) their Lordships of the Judicial Committee have made the following observations in respect of section 498 :‑
"The only granting of bail which is referred to in that Chapter XXXIX (which consists of sections 496 to 502 inclusive) is the granting of bail to accused persons. There is no reference therein to the granting of bail to persons who have been tried and convicted. It is true that in the Indian decisions section 498 seems to have been treated as though it included cases in which persons already convicted were concerned ; but any such view seems to their Lordships to be misapprehension based on a mistaken reading of a few words which occur in that section. The Section runs thus :‑"498. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High Court or the Court of Session may, in any case, whether there be an appeal pan conviction or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced."
"Two things must be observed in relation to this section. The only bonds "executed under this chapter" are executed by persons who are accused (not convicted) persons; and the words "whether there be an appeal on conviction or not" mere ly qualify or relate to the words "in any case," and only mean that all accused persons are within the section whether their case is appealable on conviction or not. in truth, the scheme of Chap. XXXIX is that sections 496 and 497 provide for the granting of bail to accused persons before trial, and the other sections of the Chapter deal with matters ancillary or subsidiary to that provision."
It appears to me to be obvious from the above observation that section 498 does not in any way enlarge the categories of persons to whom bail can be granted under Chapter XXXIX. This necessarily leads to the inference that such persons must be under custody before they can be given any relief by the High Court or the Court of Session.
Under sections 496 and 497 an accused person can be released on bail. This presupposes that the accused person is under some sort of restraint. If section 498 is ancillary or subsidiary to sections 496 and 497 it cannot be said that this section empowers the highest Court to grant bail to persons who have not been put t3 under any restraint whatever. If this were so, the ancillary and subsidiary section would be enlarging the powers granted to the Courts under the principal sections, namely, 496 and 497. It is difficult to hold that the Legislature would embody in a subsidiary or ancillary section a provision which deals with persons other than those who fall within the purview of sections 496 and 497. If section 498 were given the wide Interpretation envisaged in the case of Hidayat Ullah Khan (supra), section 498 would not) be ancillary or subsidiary, but would be wholly independent of the powers conferred on the High Court or the Court of Session by sections 496 and 497.
In order to support the interpretation placed on section 498 of the Code in the case of Hidayat Ullah Khan (supra), Mr. Qalandar Ali Khan contended, on behalf of the respondent, that as soon as the respondent had made an application to the Court asking for grant of bail he had appeared before the Court and that such appearance must be regarded as a surrender to the custody of the Court. It was urged that, under the circumstances, he could be admitted to bail under the provisions of section 498 as he had appeared in Court under section 497. This argument of the counsel leads to extraordinary results. If a person who appears before the High Court under section 497, is taken to be in the custody of the Court merely because of his appearance, it is difficult to imagine what would happen to him if the Court rejects his application for bail. He appeared in Court as a free man. Is the Court bound to keep him in custody and send him to jail simply because it rejects his application? If so, under what provision of the Code ? The failure of his application would therefore deprive a suspected person of his freedom. What is the Court to do with him is another difficult question? He comes into Court protesting that he is innocent and there is no case against him. The Court decides not to accept his application for bail. He cannot be required to execute any bail bonds under the provisions of section 499 of the Code. It is clear, therefore, that the making of an application for bail and his presence in Court cannot be regarded as appearance under section 497 of the Code. In fact, in Hidayat Khan's case (supra) it was pointed out by the learned Judges of the High Court that nowhere in law was there to be found any warrant for the plea that a Court possesses any power to take into custody a person offering himself for the purpose if there be no justification for the Court to exercise the power of taking such person into custody. When a person appears before the High Court merely to present an application for bail, without any warrant for his arrest having been issued, he is not appearing in respect of any offence of which the High Court is taking cognizance at the time and his appear ance before the Court cannot be regarded as a surrender to custody.
It was urged by Mr. Sleem that "admitting to bail" is also placing a person under some form of restraint. Reference was made in this connection to section 308 of the Code where it is laid down that whenever the jury is discharged the accused shall be "detained in custody or on bail as the case may be." The word "detained" applies both to custody and to the enlargement of a person on bail. The grant of bail to accused person is merely the substitution of one type of restraint for another type of restraint. If through mistake, fraud, or otherwise, a person has been enlarged on bail on insufficient sureties, or if they afterwards become insufficient, the Court may issue a warrant of arrest directing that the person released on bail be brought before it and may order him to find sufficient sureties, and on his failing so to do, may commit him to jail. It is possible to conceive of cases where a person has unnecessarily applied for anticipatory bail and has been released on executing a bail bond with sureties. He might never have been arrested by the police but being released on anticipatory bail he has made himself liable to be committed to prison if his sureties become insufficient after bail has been taken. It may be that at one stage or another the surety of a person who has been given bail desires to be discharged and such person is unable to find a new surety. In these circum. stances, a person who would never have been arrested otherwise may be arrested and committed to prison. The provisions of section 498 of the Code cannot be interpreted in manner which lead to such absurd results.
The basic conception of the word "bail" is release of a person from the custody of police and delivery into the hands of sureties, who undertake to produce him in Court whenever required to do so. This is the meaning which has been given to the word "bail" in Standard English Dictionaries as well as in Wharton's Law Lexicon and Stroud's Judicial Dictionary. This is also borne out by" the form of bond and bail bond given in Schedule V of the Cr. P. C. This basic conception of the meaning of the word "bail" has not been adverted to in the Full Bench judgment in the case of Hidayat Ullah Khan (supra).
Reliance has been placed by the learned Judges of the High Court on the case of Johur Mull and others (10 C W N 1093). In that case there was a murder in Calcutta. Four persons were arrested on suspicion by the police and their cases were pending before the Second Presidency Magistrate. Meanwhile, Johur Mull and others were also suspected and non‑bailable warrants for their arrest were issued. Thereupon they made an application for bail in the High Court before they had surrendered. The only objection that was taken to the application by the Offg. Standing Counsel was that in murder cases ordinarily no bail should be taken. It was observed by Mitra, J. that ordinarily they did not allow bail in cases like the present, but they had power under section 498 of the Code to direct that any person should be admitted to bail in any case. This case is distinguishable as the issuing of a non -bailable warrant may be treated as imposing a certain amount of restraint on the accused. If the words "in any case" could be taken to include every accused person including a convict or a person who has not been taken into custody, there would have been no necessity to enact section 426 of the Code, or to insert subsection (2‑B) in section 426 which was done in 1945. A person who had been granted special leave to appeal to His Majesty‑in- Council could then be admitted to bail under section 498 on the ground that the words "in any case" cover the case of a convict who has preferred an appeal to His Majesty‑in‑Council.
It has been observed by the Lahore High Court in Hidayat Ullah Khan's case (supra) that it is conceivable to think of cases where credible information has been laid before a police officer that a certain person is guilty of a non‑bailable offence not punish able with death or transportation for life, that he is in the presence of the police officer at the time when information is received, and that in such a case there will be no contravention of anything contained in the Code if the police officer grants bail to such a person forthwith without going through the formality of arresting him. This observation seems to imply that the arrest of a person necessarily means the use of force against him in order to bring him…
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