Surrender Before Magistrate---Validity Of

305 SURRENDER BEFORE MAGISTRATE ---VALIDITY OF Khadim Hussian Malik, District and Sessions Judge (Retd.) Former Director/Faculty Member Punjab Judicial Academy, Lahore Published in: All Pakistan Legal Decisions Year of Publication: 2011 Suggested Citation: 2011 PLD Journal Section p.130 A practice is going on in the Courts of Judicial Magistrates whereunder an accused person, involved in any criminal case, particularly in bailable offences and on occasions even in non-bailable offences, surrenders himself before a Magistrate and procures bail from his Court. (Cit. p.131) Instances are also not wanting where the Court of Session, while dealing with an application for bail before arrest, after admitting the accused to interim bail, directs him to appear before the area Magistrate for further necessary action in accordance with law. The Magistrate in turn passes order admitting him to bail, subject to furnishing bail bond for appropriate amount, with or without sureties. It is being considered as if the use of word "appears" in section 496, Cr.P.C. and sub section (1) of section 497, Cr.P.C. permits an accused person to appear before a Magistrate, even before his physical arrest and after surrending himself to the "Judicial custody" of the Court, seek bail under section 496 or 497, Cr.P.C., as the case may be. The question arises whether the practice so commonly being observed in the Courts is in consonance with the settled law of bail? In this connection the following points need consideration:-- (a) Whether the "voluntary appearance" of an accused before a Magistrate by way of surrender and not being in response to process issued to him, can be considered to be valid and acceptable under the settled law? (b) Does it not amount to grant of bail before arrest by Magistrate, an area exclusively reserved for the exercise of jurisdiction by High Court or Court of Session and for no other Criminal Court constituted under Cr.P.C.? (c) Does it not amount to circumventing the statutory right of the police to investigate cognizable offences? (d) Whether "voluntary appearance" before a Magistrate amounts to "Judicial custody"? The matter is connected with the law of anticipatory bail as has gradually developed in our Country during the period from 1949 to 1966. At one time the grant of anticipatory bail was completely unknown in the Sub-Continent, in as much as no case was then found even in the English Law where anticipatory bail might have been allowed. When such a relief was claimed for the first time in Lahore High Court in 1948 the Crown Counsel maintained that the Court did not enjoy the power to grant bail before arrest. (1) POSITION IN INDIA As observed in Balchand Jain v. State AIR 1977 SC 366, there (Cit. p.132) was at one time conflict of decisions amongst different High Courts in India about the power of a Court to grant anticipatory bail. The majority view was that there was no such power in the Court under the old Criminal Procedure Code (India revised Cr.P.C. 1898 in the year 1974). In the revised Cr.P.C., on the recommendations of the Law Commission, a new section 438 has been introduced conferring power of anticipatory bail on High Court and Court of Session. (2) POSITION IN PAKISTAN In Pakistan also there was an impression at one time that Cr.P.C. is completely silent about the power of the Courts to grant anticipatory bail. It is, however, now well settled that Section 498, Cr.P.C. deals with such powers of High Court and Court of Session. Unlike India the law of anticipatory bail in Pakistan is not statutory law, rather Judge made law based on interpretation of the provisions of section 498, Cr.P.C. It was observed in Khalid Rashed v. State PLD 1972 Lahore 722, in the following terms:- "When sections 497 and 498, Cr.P.C. were enacted probably the framers of the Code did not clearly visualize anticipatory bail. It is, however, through precedent law which has now the force of statutory law that a petition for anticipatory bail under section 498 read with section 497 can competently be made." As observed supra, the issue in hand being connected with the law of anticipatory bail, it is all the more essential to consider its historical perspective, in order to comprehend the parameters fixed by the Superior Courts for the grant of bail so as to determine how for the concept of so-called "surrender to Judicial Custody" fits in. (3) HISTORICAL PERSPECTIVE OF ANTICIPATORY BAIL I. View of Lahore High Court The first ever case decided after independence, regarding the power of the High Court to grant anticipatory bail is Hidayat UIIah Khan v. Crown PLD 1949 LHR 21. Two petitions were filed in Lahore High Court alleging initiation of criminal proceedings against the petitioners and their consequential arrest, causing them great disgrace and dishonour. The Crown Counsel challenged the competence of High Court to grant bail in anticipation of arrest. The matter being "important" involving "difficult" question of (Cit. p.133) law a Full Bench headed by Mr. Justice Muhammad Munir Actg. Chief Justice was constituted. The Bench formulated the following question for consideration:-- "Whether the High Court can grant any relief, and if so what to a person, seeking an order to bail in anticipation of his arrest for an offence"? Speaking for the Court Mr. Justice Cornelius answered the question as under: " in a proper case, the High Court has power under section 498, Criminal Procedure Code, to make an order that a person who is suspected of an offence for which he may be arrested by a police officer or a Court, shall be admitted to bail." The exercise of this power could, however, be confined to cases in which not only is good prima facie ground made out for the grant of bail in respect of the offence alleged, but also, it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm." The other Hon'ble Members of the Full Bench agreed with it. II Hidayat Ullah case over-ruled The decision given in Hidayat Ullah's case was subsequently over-ruled by the Federal Court in the case of Crown v. Khushi Muhammad PLD 1953 Federal Court 170. In this case the subject of consideration by the Federal Court was the order passed by Mr. Justice Kiyani of the Lahore High Court, granting bail before arrest to the accused. The order was based on the authority of Hidayatullah Khan's case in preference to Full Bench case of East Punjab, Amirchand v. Crown AIR 1950, East Punjab 53 and Muhammad Abbas v. Crown PLD 1950 Sindh 80, containing a contrary view. In over-ruling Hidayat Ullah's case the following reasons were advanced by the Federal Court:--- (i) As held by Privy Council in Re: Lala Jai Ram Das v. King Emperor, AIR 1945 PC 94, Section 498, Cr.P.C. does not (Cit. p.134) enlarge the categories of persons to whom bail can be granted under Sections 496 and 497, leading to an inference that such persons must be under custody. (ii) Section 498, Cr.P.C. being ancillary and subsidiary to Sections 496 and 497 cannot deal with persons other than those covered by those Sections. (iii) The basic conception of word 'bail' as defined in various dictionaries i.e. "release of a person from the custody of Police and delivery into the hands of sureties" has not been adverted to in Hidayat Ullah's case. CONCLUSION: It was concluded that: " .a person cannot be admitted to bail against whom a report has been lodged at the police station but who has not been placed in custody; or under any other form of restraint or against whom no warrants of arrest has been issued." "In the case of a person who is not under arrest but for whose arrest warrants have been issued, bail can be granted under section 498 if he appears in Court and surrenders himself." III Extension of Rule laid down in Khushi Muhammad's case. After expiry of about 13 years of the above decision of the Federal Court, controversy about the "powers of Criminal Courts to grant bail before arrest" again cropped up in the apex Court in the case of Sadiq Ali v. State, PLD 1966 S.C. 589. As a question of general importance was involved the Special Leave to Appeal was heard by Full Court. After detailed discussion the Court concluded that:-- " . The rule laid down in Khusi Muhammad's case could be safely extended to direction for the grant of bail to person, whose arrest, on a criminal charge by the police, without warrant, is proved to be imminent and certain, and where the circumstances would justify the grant of bail". Interpretation of word "appears" The word 'appears' used in sections 496 and 497 was also (Cit. p.135) interpreted. According to Court it meant not only appearance in response to process issued against a person but also his voluntary appearance. It was observed:-- " .the word "appears" occurring in sections 496 and 497 of the Code need not be necessarily confined to cases where a person has been summoned to appear in Court. A person against whom accusation has been laid, either in Court or before the police might anticipate the issue of a process against him and appear voluntarily in Court." IV. Law of Anticipatory bail Authoritative pronouncement In the case of Muhammad Ayub v. Muhammad Yaqoob and others PLD 1966 SC 1003 once again the "exact scope of powers conferred on the High Court and Court of Session, by section 498, Cr.P.C." came up for consideration. Interpretation of word "appears" the view expressed in Sadiq Ali's case modified The Supreme Court agreed with the contention advanced on behalf of the respondent that the word 'appears' should apply only to a person appearing in response to process issued by Court and should not be held to include voluntary appearance by a person seeking bail; that by adopting its general dictionary sense "section 498 itself would seem to become redundant;" that if by voluntary appearance grant of bail becomes possible by order of Court, without the Court being directly seized of the case, there would be no need to have recourse to section 498 at all. As the argument found favour with the Court the view expressed in Sadiq Ali's case was modified and it was concluded:-- "... the word "appearance" in sections 496 and 497 need not be construed to include voluntary appearance, even in circumstance of grave apprehension of arrest." Salient features of the Judgment of Supreme Court The Supreme Court by its majority judgments determined the exact scope of section 498. The salient features of the judgment are as under:- (i) When bail can be granted under section 496 and 497, Cr.P.C. "Under sections 496 and 497, Criminal Procedure Code, the Court can bail out a person only if: (Cit. p.136) (i) he has been placed under actual custody or (ii) appears in answer to a process issued or (iii) is brought before the Court, presumably (a) by the police or (b) by some other arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction or the court is seized of the proceedings directly, in which bail is requested". (ii) Application of Section 498, Cr.P.C. "Section 498, however, would be called in aid, before the Court of Session and the High Court, even where (i) the court is not seized directly of the proceedings in question and (ii) where no actual arrest has been made so far but anticipatory bail is asked for, e.g, where the case is still at a stage of investigation by the police or is pending in a subordinate court, (iii) the powers to grant such anticipatory bail would thus be confined to the High Court and the Court of Session and other courts would be excluded from its scope. (iii) Section 498 a Supplementary Provision " .In other respects however, Section 498 occupies the position of a supplementary provision in so far as it confers not only concurrent but revisional powers on the High Court and the Court of Session in respect of grant or refusal of bail by subordinate Courts and the Police and enables these Courts to exercise the power of anticipatory bail, in suitable cases. (4) It would be seen that the Supreme Court of Pakistan in its above judgment has clearly specified the circumstances and the parameters under and within which post arrest bail and bail before arrest can be granted. It is thus requirement of law that while dealing with bail matters (Cit. p.137) one must fully comply with the same, ensuring that there is no deviation therefrom. These have to be necessarily followed in their letter and spirit. (5) The questions raised above are now answered seriatim in the light of the judgment given in Muhammad Ayub's case and other judgments of Superior Courts:-- (a) In the case of surrender before the Magistrate the accused puts up his "voluntary appearance" and does not appear in response to any process issued to him. Moreover, neither at that time the accused is under actual arrest so as to attract the jurisdiction of the Magistrate nor the latter is directly seized of the proceedings in which the bail is requested. All these are conditions precedent for the grant of bail under the provisions of sections 496 and 497, leading to a safe inference that the grant of bail by the Magistrate in the case of surrender is without jurisdiction. (b) "Voluntary appearance" is permissible only under section 498, Cr.P.C. the proper forum for which is High Court or Court of Session and not the Magistrate; still if he grants bail in such a case it would amount to grant of bail before arrest. (c) The grant of bail in such a case would also result in defeating the statutory right of investigation of police. The Supreme Court in State v. Fateh Muhammad 1972 SCMR 182 observed that the statutory right of police to investigate a cognizable offence cannot be circumvented by the accused by avoiding police and surrendering before a Magistrate. (d) The connotation of "judicial custody" has been elaborated in State v. Muhammad Ayoob PLD 2008 Karachi 492. The Court observed as under:-- "There is no scope for a person to contend that his voluntarily appearance before the Court should be construed as "judicial custody". The concept of "custody" as enunciated in the Crown v. Khushi Muhammad PLD 1953 FC 170 connotes that the person is under some actual restraint. In other words, there is no concept of constructive custody before the court or a Judge by way of a voluntary surrender. To further make out this point, reference is invited to Jumma Khan v. The State PLD 1960 Pesh. 25 wherein it was held that the appearance before the Court mentioned in section 497 of the Cr.P.C. is appearance in (Cit. p.138) compliance with a process issued by a Court. It was further observed that where no process for the appearance of an accused person is issued by any Court and he voluntarily makes appearance, he is neither under any form of restraint nor has he any process for his restraint. Although the judgments in The Crown v. Khushi Muhammad and Jumma Khan v. The State were delivered at the time when the concept of bail before arrest was till its embryonic state in Pakistan, the said two judgments are still good authority for the proposition and to the extent that a voluntary surrender per se before the Court of law cannot be construed as "custody". (6) BAIL GRANTING POWERS OF A MAGISTRATE It has been seen that a Magistrate is not competent to grant bail before arrest. He can grant bail either to a person in actual custody or to the one who appears before him in response to process issued against him. There are, however, two rulings of Lahore High Court pronounced by Mr. Justice Muhammad Afzal Zullah whereby the Magistrate has been held to be empowered to grant bail before arrest, when the accused had surrendered himself before the Court. The first case is Muhammad Sharif v. State PLJ 1978 Criminal Case Lahore 553=1979 PCr.LJ Note 7 at page 5. In this case the petitioner sought bail before arrest directly from the Lahore High Court which was disallowed with the observations that even the Magistrate had ample jurisdiction to admit a person to bail before arrest. It was observed as follows:-- "2. Learned counsel states that the petitioner cannot move for bail before arrest before a Magistrate. In so for as the technical phraseology "bail before arrest" used in some rulings is concerned, this might, on face, appear to be correct; but the provisions contained in subsection (1) of section 497, Cr.P.C. permit an accused person to appear before a Court of Magistrate even prior to his physical arrest and thus after presenting himself before the Court seek bail under subsection (1) of section 497. For all practical purposes, if the Magistrate grants bail it would amount to bail before physical arrest." The second case is Muhammad Saeed v. State 1980 PCr.LJ 17. In this case the Magistrate, acting on Muhammad Sharif's case admitted the accused persons to bail even though they had not been formally (Cit. p.139) arrested. The counsel for the complainant relying on Muhammad Ayub's case contended that the law laid down in the case of Muhammad Sharif is not correct; because anticipatory bail cannot be allowed by a Magistrate under section 497, Cr.P.C.---such power is available only with the Sessions Court and the High Court under section 498, Cr.P.C. It was, however, again held that the observations made in Muhammad Sharif's case is not contrary to law. Nevertheless, relying on PLD 1949 Lahore 21, PLD 1953 FC 170, PLD 1966 SC 589 and PLD 1966 SC 1003 the "Hon'ble Judge was pleased to revisit the earlier judgment of Muhammad Sharif authored by him holding that the Magistrate could only grant bail in the three circumstances detailed in PLD 1966 SC 1003. It appears that the practice by Magistrates of accepting surrender of accused even before his physical arrest started from these two rulings which has now become a matter of routine. (7) THE TWO JUDGEMENTS DECLARED PER INCURIAM* The aforementioned two judgments of Lahore High Court, regarding powers of the Magistrate to grant bail before arrest have been declared per incuriam by Karachi High Court in State v. Muhammad Ayoob PLD 2008 Karachi 492. The accused in this case surrendered himself before the Judicial Magistrate Karachi (West) who relying upon Muhammad Sharif's case granted him bail before arrest. The complainant sought cancellation of the bail from the Sessions Court but his petition was dismissed. Aggrieved thereby the complainant filed a Criminal Revision in the High Court which was ultimately not pursued by him. The High Court, however, keeping in view the question involved as to the powers of the Magistrate to grant bail before arrest, instead of dismissing the same for non-prosecution converted it into suo motu Criminal Revision. The High Court analyzed in detail the said two judgments in the light of the four judgments discussed under the caption "Historical Perspective of Anticipatory Bail" and came to the conclusion that the observations contained in Muhammad Sharif's case, to the effect that the Magistrate is competent to grant bail before arrest are per incuriam, being not the correct statement of law. (Cit. p.140) Similarly the observation in Muhammad Saeed's case to the effect that the Muhammad Sharif's case is not contrary to law is also per incuriam. (8) EXAMPLE FROM AJ&K JURISDICTION Another example of similar grant of bail by the Magistrate, on surrender of accused, is found in Asghar Ali Malik v. Muhammad Sharif 1995 PCr.LJ Supreme Court (Azad J & K). In this case the Magistrate granted bail before arrest to certain accused. Before the Supreme Court the counsel for the accused relying on the word 'appears' used in Section 497 Cr.PC argued that the trial court was competent to grant bail to those persons who appear before it and the fact that such persons are not already under arrest makes no material difference because when they appear before the Court they surrender themselves. The Supreme Court repelled this contention and held that the Magistrate cannot grant pre-arrest bail. It was clarified that 'appearance' in the aforesaid section is not of a person who is wanted by the police and is avoiding arrest. If such a person appears before the Court of Magistrate he cannot be granted bail because that would fall under the category of pre-arrest bail. (9) CONCLUSION:-- Under sections 496 and 497 a Magistrate can grant bail only to three categories of persons. In the first category bail could only be granted if the person was in actual custody; the second category deals with a situation when a person appears in answer to a process issued by the Court and in the third category either the police or some other law enforcing agency brings a person before the Magistrate. No other category of person is within the scope of the provisions of these two sections. As observed in PLD 2008 Karachi 492 a person who makes voluntary appearance is neither under any custody nor under any restraint and his voluntary appearance per se before the Court of law cannot be construed as "custody". Such a person is not entitled to claim bail under these sections. If the Magistrate still grants him bail it amounts to bail before arrest. The practice of accepting surrender by a Magistrate thus being not in consonance with the settled principles of law enunciated by the Hon'ble apex Court, needs to be discontinued forthwith. ---------- * Decision given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned.