1. MUHAMMAD YAQUB ALI, J.-The short question raised in this appeal by special leave is whether bail granted under section 426, Cr. P. C., can be made conditional on payment of fine imposed by the Court below.
2. The appellant was convicted by the Assistant Sessions Judge, Dinajpur, under section 407, P. P. C.
3. For misappropriating 42,752 maunds, 27 seers of Government paddy and sentenced to 32 years simple imprisonment and a fine of rupees two lacs, in default to undergo further imprisonment for one year. Both conviction and sentence were, on appeal, affirmed by the session Judge Dinajpur, from which the petitioner preferred a revision petition in the High Court. The learned Judges while issuing rule in the petition directed that the appellant be released on bail in.---the sum of rupees three lacs and allowed him one month's time to pay the fine. It was further laid down that in case of default in the payment of fine the bail shall stand cancelled.
4. Section 426 of the Code confers on the High Court the power to direct that pending the appeal, the execution of the sentence awarded to the convicted person may be suspended and also if he is in confinement that he be released on bail or on his own bond. Under section 439, the High Court has the same power of granting bail pending a revision petition as in a appeal under section 426. There is no provision for attaching any condition or term to the order granting bail or suspending the execution of sentence under section 426.
5. While dealing with a case falling under section 497 of the Code in Mian Mahmud Ali Qasuri and others v. The State (PLD 1963 SC 478) this Court expressed the view that a person admitted to bail cannot be subjected to the condition that he shall desist from the repetition of the offence with which he is charged. It was further remarked that :- "The connotation of the word bail itself, as understood in law, supports this position. An accused person is said, at common law, to be admitted to bail, when he is released from the custody of the officers of the Court and is entrusted to the custody of persons known as his sureties, who are bound to produce him to answer, at a specified time and place, the charge against him and who in default of so doing are liable to forfeit such sum as is specified when bail is granted. (Vide "Concise Law Dictionary" by Osborn, 1927 Edition, page 32). This view receives further strength from a consideration of the provisions of the other sections included in Chapter XXXIX of the Code of Criminal Procedure. Section 497, which relates to cases of bail, when the person concerned is accused Of a non--bailable offence, also talks of release of such a person on bail or at the discretion of the officer or Court concerned, on the execution by him of a bond without sureties, for his appearance, as provided in the section. The expression for his appearance is stressed particularly in this context. Section 500, also enacts that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released. Section 502, provides that all or any sureties for the attendance and appearance of a person released on bail, may at any time apply to a Magistrate to discharge the bond, either wholly or so far as relates to the applicants. This view is further fortified by reference to the provisions of Chapter XLII of the Code, as to bonds."
6. Mr. Shahabuddin Ahmed, appearing for the State, was unable to support the order of the High Court attaching the after said condition to the order granting bail to the appeal it. Wit maintained that in effect High Court has declined to stay recovery of the fine. In this he is right, but it did not warrant the order nullifying the bail in case of default in the payment of fine.
7. We understand that bail was granted to the appellant no as a mans of enforcing recovery of fine, but on its own merits. How could that order be therefore made dependant on the payment of fine?
8. The appeal is, accordingly, allowed and the interim bail granted on the 14th March 1969, is confirmed.