Sudarsan Swain vs State of Orissa

P.K. Mohanti, J.—This criminal revision is directed against an order refusing to enlarge the accused on bail.

The Petitioner is being prosecuted for offences under Sections 447 and 326/114, Indian Penal Code. During investigation of the case he was arrested and released on bail by the Investigating Police Officer. After completion of investigation, charge-sheet was submitted against'' him and he was summoned to appear in Court. He appeared through a lawyer and moved for fresh bail. The learned Magistrate rejected the prayer on the ground that bail could not be granted unless the accused personally appeared in Court. Aggrieved by this order the Petitioner has come up in revision.

It is urged in this revisional application that the Petitioner is a respectable gentleman of the village and he has been falsely implicated in the case out of previous enmity. He apprehends that he may not be released on bail by the learned Magistrate as charge-sheet has been submitted against him u/s 326, Indian Penal Code and that his reputation will be lowered in public estimation if he is remanded to jail custody.

The Petitioner is accused of an offence u/s 326, Indian Penal Code which is a non-bailable offence. Section 437, Code of Criminal Procedure provides for bail to a person accused of a non-bailable offence. Under the provisions-of this section when a person is arrested or detained without warrant by an Officer-in-charge of a Police Station, or appears, or is brought before a Court, he may be released on bail. If a person is neither arrested nor detained nor brought before the Court, he can be allowed bail if he appears and surrenders himself to the Court before the question of bail can be considered. A person who is not in custody or under some sort of restraint does not require to be released on bail, when a person appears in Court his physical presence results in placing himself in the custody of the Court.

The controversy centres round the expression "appears". It is contended that the accused may appear before the Court either in person or through pleader.

The general principle of the Code of Criminal Procedure is that an accused person must attend the Court in person. Sections 205, 273 and 317, Code of Criminal Procedure are exceptions to the general rule. That being so, the expression "appears" occurring in Section 437. Code of Criminal Procedure could not have been - intended to mean appearance through a pleader. The preponderance of judicial opinion is in favour of the-view that the very notion of bail pre-supposes some form of previous restraint and the person who wishes to be released on bail is to appear before the Court and surrender.

In the case of State of Uttar Pradesh Vs. Kailash, Raghubar Dayal, J. (as he then was) held as follows:

Appearing through counsel cannot naturally result in even notional custody of the Court over the person concerned. It may be that the applicant might give his address in the application, but there cannot be any undertaking that he would not move away from that place. I do not, therefore, consider that the word ''appear'' in Sections 496 and 497 contemplates appearance through counsel.

8 In State v. Dallu Punja AIR 1954 M.P. 113, a Full Bench of the Madhya Bharat High Court held that the expression "appears" could not have been used in Section 497 to mean appearance by a pleader.

In Public Prosecutor, Andhra Pradesh Vs. G. Manikya Rao, , a Division Bench held as follows:

What is urged, for the Respondent is that the word ''appears'' ... employed in Section 497 is susceptible of being Interpreted as appearing by a Pleader. We do not think that the expression can bear that connotation. It can only mean the physical appearance of the accused.

In Amir Chand and Anr. v. The Crown AIR 1950 East. Punj. 53, Khosla. J. observed that in the case of a person who is not under arrest, but for whose arrest warrants have been issued, bail can be granted if he appears in Court and surrenders himself.

A contrary view was taken in the case of Muzafarzlddin Mohammad v. State of Hyderabad AIR 1953 Hyd. 219. Their Lordships agreed with the view in Amir Chand''s case" cited above, but added a rider that if the person is so sick or infirm that he cannot come to Court without risk to his life and applies for bail through a pleader, he may be deemed to have surrendered himself to the custody of the Court. In Juhar Mal and Anr. v. The State AIR 1951 Raj. 279 Wanchoo. C. J. dissented from this view and held as follows:

We feel that it is not necessary to add this rider for Section 497 contemplates actual appearance and surrender to Court and nothing else.

In State of Uttar Pradesh Vs. Kailash, Raghubar Dayal, J. did not also agree with the view expressed in Muzafaruddin Mohammad v. State of Hyderabad AIR 1953 Hyd. 219.

The legal position that emerges from the aforesaid authorities is that for exercise of power u/s 437, Code of Criminal Procedure the person asking for bail must be under some sort of restraint. The restraint contemplated by Section 437 is the one exercise by another and which controls the physical movements of the accused and thus curbs his liberty:

In the instant case, the Petitioner was arrested and released on bail by the Police. In pursuance of the undertaking to appear in Court contained in his bail bond he was bound to appear in person. He had been summoned to appear in Court. His appearance through lawyer does oat tantamount to appearance in Court as contemplated u/s 437, Code of Criminal Procedure. The learned Magistrate was, therefore, justified in refusing to grant bail.

In the result, the criminal revision is dismissed. The Petitioner may appear in person before the learned Magistrate, surrender himself to legal custody and apply for bail, if so advised. The learned Magistrate will deal with the application for bail, if presented, on merits and pass appropriate orders.

Revision dismissed.