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10. This being my reading of the law, I proceed to see whether this is a case in which the applicants ought to be let out on bail.

11. On general principles and on principles on which Sections 496 and 497 (as amended in 1923) are framed the grant of a bail should be the rule and refusal of bail should be the exception. In the cases of a bailable offence, the law expressly says that if the accused person applies for bail he shall be released (Section 496). Section 497 applies to cases of nonbailable offences and there it is said that the accused person shall be released on bail except where there appears to be a reasonable ground for believing that ha has been guilty of a very heinous offence, viz, one which may be punished by either death or by transportation for life: Section 497 (1). Again it is laid down that, where at any stage of the investigation or trial, there are not reasonable grounds for believing that the accused person has committed a nonbailable offence, but there are sufficient grounds for further enquiry into his guilt, the accused shall be released on bail: Section 497 (2).

28. In my view one further caution is necessary in regard to the application of Section 497. We have been addressed by the applicant and also by the Special Public Prosecutor on the assumption that Section 497, Sub-section (1) is applicable to the case, and on this basis it has been contended that by Act 18 of 1923 the legislature, by striking out the words "the offence with which he is accused" and substituting the words "an offence punishable with death or transportation for life," has intended to relax somewhat the restriction formerly placed on the powers of a Magistrate and therefore as it has been contended, the suggested restriction put by the Courts on the discretion to be exercised by the High Court or the Court of Session is similarly relaxed.

29. Section 497(1) would however appear to have no application to an application for bail, such as the present, even if it had been made before a Magistrate. Sub-section (1) reads:

When any person accused of any non-bail-able offence is arrested or detained without warrant by an officer in charge of a police station, or appears, or is brought before a Court.

30. All these phrases, "is arrested," "detained without warrant by an officer in charge of a police station" and "appears or is brought before a Court" suggest the stage of the case when an accused person is first brought before a Court or his arrest or detention is first brought to the notice of the Court and there is little or no information before the Court upon which it can act. The appropriate provision applicable where the investigation or enquiry or the trial has been proceeding is Sub-section (2), Section 497. The importance of the distinction lies in the fact that the relaxation of the restriction on the powers of the Magistrate under Section 497 (1) effected by Act 18 of 1923 does not find place in Section 497 "(2).

31. I will not however discuss further the distinction between the, two subsections of Section 497 because, as I have said, I am of opinion that in any event the discretion of this Court or of the Court of 'Session is not limited to the consideration set out in Section 497, but that that consideration is only material to be considered along with all the circumstances of the 'case.

32. A large number of oases have bean quoted to us by the applicant and four by the Special Public Prosecutor. I do not consider 'it necessary to deal with them in detail, but I merely state my conclusions.