Rege, J. - (1.)THE petnr. is under trial on charges of criminal breach of trust as a public servant. He was arrested on 10 -9 1949. Applns. for bail were rejected by the Ota. below & on 910 1949, a petn. was made to this Ct. The challan had not been submitted when the previous applns. were made & on 11th November the learned Counsel withdrew the petn. in this Ct. as the presentation of challans was then imminent & it was considered proper that an apple, should be made initially in the trial Ct. after the presentation. Five challans were put up on 21st November 1949 & numbered 388, 389, 390, 394 & 399. Out of these three viz. 388, 394 & 399 have been consolidated for convenience. The accused applied for bail in all these cases but the appln. was rejected by the learned Sub divisional Mag., Neamnch, & the petnra. has come up to this Ct. with three petns. under S 498, Cr. P.C. This order will dispose of the three petns.
(2.)A preliminary objection is raised by the learned Govt. Advocate that Section 498, Cr. P.C. gives concurrent powers to the H, C. & the Ct. of Session; & while not denying the powers of this Ct. to deal with the mutter he made a strong plea that the practice of this Ct. not to entertain such a pet a unless the subordinate Ct of concurrent jurisdiction has been approached in the first instance may not be departed from. It was conceded by the petnr's learned Counsel that in ordinary circumstances the objection was unanswerable; but, he contended that the learned Sea. J. had rejected the previous petn. on the ground that the offence was of a nature which would not admit of the petnr's release on bail; & at the present stage the approach to the Cess. J. in the first instance would have been a mere formality which in the circumstances of the case ought to be dispensed with. The petnr. was in custody possibly for justifiable reasons tot over two months before the challans was presented & it is conceded that the matter in issue involves going into accounts of a large magnitude. The petnr's learned Counsel brought to my notice the long time taken in the examination of a single witness & made a plea for elimination of the delay involved in an approach to the Sea. J. which in view of his previous order must needs be futile. I think that there is considerable force in this plea & shall proceed to consider the propriety of the patnr's prayer for release.
It would in my view be improper to consider the merits of the case itself at this stage & normally according to the view taken by me in similar cases, the wide powers conferred by Section 498, Cr. P.C. are not intended to be exercised in an arbitrary manner; but judicially, & so us not to make a violent departure from the provisions of Section 497 of the Code. This, I may add with respect, is the ratio decidendi of decisions of H Cs. in India of which I would refer to E. N. Joglekar v. Emperor, 54 all. 115:, A.I.R. 1981 ALL. 504:, Cri. L.J. 94 .), Keshav Vasudeo v. Emperor, 85 Bom. L. R. 1072:, A.I.R.1933 Bom. 492 :, Cri. L.J. 539; Ashraf Ali v.. Emperor , H. M, Boudville v. Emperor., 2 Rang. 546:, A.I.R. 192 Rang. 129:, 26 Cri. L.J. 427). Section 498, as I look at it, provides for cases in which considerations other than the gravity of the case make it expedient that the accused should have freedom daring the trial, & the plea for the petnr. really is that the voluminous accounts which go to form the foundation of the case need explanation which the accused alone can give & it is in the interests of justice that the counsel should have the accused at hand to explain them. There may, it is said, be other papers & documents which may have to be looked into for the defence of the accused & the defence would naturally be hampered if the accused remains in custody during the trial. On a priori consideration of the case as laid, I find that the plea is not without reason: & there is no ground for a fear that the accused would abscond or tamper with the evidence.

(3.)I direct that the accused be released on fata furnishing a bond for appearance with one one more sureties in a sum of Rs. 50,000 (fifty thousand) to the satisfaction of the trial Ct.
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