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In our opinion, the Appellate Tribunal must be held to have power to grant stay as incidental or ancillary relief to its appellate jurisdiction.

Since the Courts of Magistrates and the Courts of Sessions have jurisdiction to grant the ultimate relief of bail, they also have jurisdiction to grant limited relief short of grant of bail in suitable cases by way of releasing an accused on personal bond for a short period as an ancillary or incidental relief. The argument that if the accused is released on personal bonds it affects the statutory right of the police to arrest the accused, is fallacious. As soon as an accused surrenders before a Court he submits to the jurisdiction of the Court and the right of the police to arrest him does not exist thereafter. When an accused surrenders and is released on persona] bond, he remains in the custody of the Court. Release on personal bond is nothing but a release on temporarily bail, pending the final disposal of the bail application in order to make the remedy effective and efficacious.

12. Courts in a free nation cannot remain by standers to injustice being perpetrated and shut their eyes to the incarceration of innocent persons in jail, on false and frivolous accusations. The Court has to step in and safeguard an innocent person, by releasing him on personal bond pending the disposal of the bail application. An accused who has been so released on personal bond still remains in the custody of the Court.

13. In Niranjan Singh v. Prabhaker, AIR 1980 SC 785 : (1980 Cri LJ 426) it has been held that when the accused had appeared and surrendered before the learned Sessions Judge, the Sessions Judge would have jurisdiction to consider his bail application. An accused can be in custody not merely when the police arrests him, produces him before the Magistrate and gets a remand to judicial custody or other custody. He can be stated to be in a judicial custody when he surrenders before the Court. Thus when the accused surrenders or appears before the Court and makes an application for bail, it is open to the Court to consider his bail application. The Court has also jurisdiction to release him on temporary or interim bail on his executing a personal bond for the interim period, as the State may seek time to obtain instructions and the hearing of the bail application may have to be adjourned. Such a course is quite in accordance with law.

15. A lethargic and lackadaisical manner in disposal of bail application infringes the fundamental right of a citizen guaranteed under Article 21 of the Constitution. Needless to say that the right to a speedy trial includes the right to speedy disposal of the bail application. The Court should adopt a human approach to human problems in such matters.

16. In Dr. Hidayat Hussain Khan (supra) the Division Bench considered the case of Rajendra v. State, 1989 (26) ACC 57 and held that normally a subordinate Court hearing the bail applications cannot issue an order in the form of injunction restraining the police from arresting an accused in the discharge of its legal duties. Releasing an accused on personal bond after he surrenders in Court does not amount to such an injunction to the police. The Division Bench only meant that the accused after his surrender should not be allowed to walk away without any legal restraints. When an accused is released on personal bond, he remains under legal restraint and for all purposes he is in the custody of the Court. The police had no power to arrest a person who is on bail or temporary bail.

17. The Division Bench also considered the case of Sipti v. State of U.P., 1991 ACC 178 and did not endorse this much of following sweeping observations :--

This practice should be universally adopted by the Court of Session and also by the Court of Magistrate.

18. The Division Bench has rightly held that all persons surrendering in Court ought not be released on personal bond. There may be cases of heinous offences or other offences committed by notorious criminals which may demand a different course than the release on personal bond. At the same time, the Division Bench has nowhere observed that the subordinate Courts have no jurisdiction to relase an accused on personal bond, after he surrenders in Court. This could be clear from the following observations of the Division Bench :--