- (1.) THIS reference comes on the report of the District Magistrate Bikaner, dated 28th October, 1953.
(2.) THE facts giving rise to it are that on 6th April, 1953, one Gopi Kishen presented an application in the court of the Sub-Divisional Magistrate Bikaner, to the effect that one Kanaiyalal S/o Hardutt Sunar of Deshnok had lodged a report with the police alleging that the applicant had committed to an offence under sec. 406 IPC, that the said report was false and the complainant simply wanted to get him arrested put him to indignity and harassment and therefore he should be released on bail. This application was presented by Ishwardayal Advocate on behalf of the accused Gopikishen. On this application, Sub-Divisional Magistrate passed an order directing the PSI to make a report, THEreupon the PSI made a report that Case No. 18 was registered against the accused under sec. 406 IPC on 19th March, 1953. It was further pointed out that the offence was non-bailable, that it would be difficult to recover the property in case the accused was released on bail and thus the application was opposed. THE applicant's advocate then requested for an adjournment to give him some time to produce authority in support of his application. On the 11th April, 1953, counsel for the accused presented another application for relating the accused on bail. THEreupon the Sub-Divisional Magistrate passed a brief order in the following words: - "one surety of Rs. 500/- and personal bond of like amount. " On the 13th April 1953, the accused executed his personal bond and also furnished security for his appearance in the court of the Sub-Divisional Magistrate Bikaner, for Rs. 500/ -. THE prosecuting Inspector then filed a revision in the court of the District Magistrate Bikaner, challenging the validity of the order of the Sub-Divisional Magistrate allowing the bail application of the accused. THE learned District Magistrate has made a report that since the accused did not appear personally before the court and since the Vakalatnama of Shri Ishwar Dayal was not signed by him, the Sub-Divisional Magistrate had no authority to release the accused under sec. 497 Cr. P. C. He has recommended that the order of the Sub-Divisional Magistrate granting the bail should be set aside. Learned Government Advocate supports the reference while learned advocate for the accused Gopi Kishen opposes it. The main point for determination in this case is as to the interpretation of the word "appears" occurring in sec. 497 Cr. P. C Learned advocate for the accused contends that the accused himself need not appear personally in the court and that appearance through a counsel is quite sufficient for the purpose of sec. 497. Learned Government Advocate, on the other hand contends that the word "appears" should be read, with the word "release" which also finds place in the same section and therefore unless the accused personally appears in the court and surrenders himself, and the court is in a position to release him on bail, a mere application filed on his behalf by an advocate is not enough. It appears that there is some conflict of views on this matter. It would first be proper to discuss the authorities on which learned advocate for the accused wants to rely upon. He has first referred to the case of The State vs. Nathmal (1) (AIR 1952 Raj. 156. ). In that case it was held that where a person has been accused of a non-bailable offence and has appeared before the Court, the Court has power to release him on bail even before he has been arrested and when no warrant has been issued for his arrest. It may be pointed out that this case does not help the accused because the accused had appeared in the court in the case relied upon by him. The necessity of discussing whether an appearance through an advocate is enough, did not arise in that case. Another case on which the accused's learned Advocate relies is State vs. Mangilal Shankerlal Jaiswal (2) (AIR 1952 M. Bharat 161. ). In that case it was observed by the learned Judge that the word "appear" is susceptible of both constructions, i. e. , he may either be present personally or through a counsel. This case was pointedly referred in the case of State vs. Sajjan Singh (3) (AIR 1953 Pepsu, 146.) but was not followed. I also think that the accused cannot claim as of right that he is entitled to appear through a counsel and he need not personally appear before the court for his bail application. If this view is adopted, it would only mean that an accused who wants to evade his arrest may go underground and just empower some advocate to appear on his behalf in the court. He may take the chance that if his application is allowed by the court, he would appear but if it is rejected, he may continue to evade his arrest. I do not think that sec. 497 Cr. P. C. contemplates such a position. The relevant portion of the said section runs as follows : - "sec. 497 (1): "when any person accused of any non-bailable offence 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, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life. . . . . . . . . " It is clear from the said provision that a person accused of an offence which is non-bailable, can come before the court in one of the following manners: (1) When he is arrested, or (2) When he is detained without warrant by an officer in charge of a police station, or (3) When he himself appears before the court, or (4) When he is brought before the court. Thus, in three out of four cases, namely, 1, 2, and 4, he comes to the court under some sort of restraint. It is only in the third case that the word "appears" presents some difficulty. The question which then arises for determination is whether he should appear himself personally or an appearance of some advocate authorised by him is enough. I think, the proper view, If I may say so with respect, is that taken in the case of Muzafaruddin vs. State of Hyderabad (4) (AIR 1953 Hyd. 219 (F. B.)) It was observed in that case that - "the meaning of the word 'bail' as ordinarily and commonly understood is to set free a person who is under arrest, detention or is under some kind of restraint by taking security for his appearance. If, as submitted, the more personal appearance or appearance through a pleader in court without his being arrested or detained or being subject to soma kind of restraint entitles an accused person to apply for bail, no question of his release on bail can arise. In other words, there can be no release without arrest, detention or some other form of restraint and for this reason the section makes provision for the release of a person arrested or otherwise restrained. " The reference in that case was answered in the following words: "a person accused of any non-bailable offence cannot apply for bail unless he is liable to be arrested in execution of a warrant of arrest issued or is ordered to be arrested, thus placing him under restraint and if such a person is so sick or infirm that he is unable to be brought to a court without exposing him to risk or danger of his life and applies for bail, he may be deemed to have surrendered himself to the custody of the court and can be represented by a pleader in the said proceedings for bail. " I also think that the word "appears" in sec. 497 Cr. P. C. contemplates that ordinarily the accused must present himself personally before the court. In other words, he must surrender himself to the court and the court must be in a position to release him or not to release him from the restraint under which he is placed. It is only in exceptional circumstances like serious illness that his appearance through a counsel can be considered by a court. In that case also the accused should surrender himself to the court and the circumstances should show that the court is in position to release him or not to release him. In the present case, the accused did not appear in the court personally. His first application was moved by his advocate and the second application was also presented by his counsel. His learned advocate has presented in this court two affidavits - one by the accused himself and the other by his counsel Shri Ishwar Dayal. In both the affidavits it is stated that the accused was personally present in the court when the application for bail was presented. Learned Government Advocate says that no credence should be given to these affidavits and I agree with him because they are against the record of the case. If the accused were himself present on 6th Aprils 1953 or on 11th April, 1953, there was no reason why he did not sign the application himself. A note on the reverse of the application dated 11th April, 1953 says that the accused was absent. Moreover, the main point for discussion before the District Magistrate at the time of hearing the revision petition was whether Shri Ishwar Dayal was authorised by the accused and whether he had authority to appear on his behalf. It appears that Shri Ishwar Dayal himself had argued the case in the court of the District Magistrate and still it was not mentioned by him that the accused was present at the time when bail application was presented. The Sub-Divisional Magistrate had passed his order on 11th April, 1953 and the personal bond and the sureties should have been executed on the same date. It appears that both the personal bond and the surety-bond were executed on the 13th April, 1954 and this also controverts the affidavits which have now been filed. It may be remarked that the Sub-Divisional Magistrate, Bikaner (North) in this case does not seem to have acted with a sense of responsibility. The order accepting the bail does not give out any reasons. He has just scribbled two lines without giving any reasons for his order. Learned advocate for the accused has urged in the end that in case the order of the Sub-Divisional Magistrate is set aside the accused should be released on bail under sec. 498 Cr. P. C. The accused is not present in this Court. I understand from learned Government Advocate that the case has already been challaned and therefore the accused should first move the trial court in this matter. The reference is allowed and the order of the Sub-Divisional Magistrate dated 11th April, 1953 in set aside. .;