- (1.) This is an application under Section 438 of the Code of Criminal Procedure filed in the names of the applicants, but affirmed by a tadbirkar. It is stated in the petition that he is only conversant with the facts and circumstances of the case.
(2.) On the question of maintainability of the application under Section 438 of the Code of Criminal Procedure affirmed by a tadbirkar, we heard the matter and we requested Mr. Balai Chandra Roy, a Senior Advocate of this Court to assist the Court as an Amicus Curie. The learned Advocate for the applicants, Mr. Milan Kumar Mukherjee also intervened and made his submission and ultimately Mr. Roy argued the matter with various case laws. Mr. Kazi Safiullah, learned Public Prosecutor also made his submission in this connection.
(3.) Section 438(1) of the Code of Criminal Procedure provides as hereunder : "....When any person has reasons to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or Court of Sessions for a direction under this Section that in the event of such arrest, he shall be released on bail, and that Court may, after taking into consideration pass necessary order as provided in said Section... ." Incidentally, the question of making an application in respect of a case where the accused person is arrested or detained as provided under Section 437 of the Code of Criminal Procedure, there is no expressed provision for making any formal application for bail and it is well-settled that in such a case when the person is in custody, such a parayer for bail can be made by a lawyer or the accused person orally or otherwise and that under Section 437 of the Code the Court is conferred with power to release the accused on bail with certain conditions and restrictions.;