2005 PLP 2069 (YLR)

On 2-8-2000 the complainant Liaquat Ali lodged the F.I.R. against the respondent Naveed, accused Arbab Ali and one unidentified person alleging that they committed the offence punishable under section 302 read with section 34, P.P.C. The F.I.R. was registered at Police Station Thariri Mohabbat. The' police investigated the case and submitted Challan by showing accused Arbab Ali in custody whereas respondent No.1 Naveed was shown in Column No.2 with blue ink as no evidence was found against him. The Magistrate took the cognizance and sent up the case to the Court of Session for trial. The Court of Session after taking cognizance did not agree with the finding of police officer about releasing the respondent No.1 Naveed therefore, the Court joined him as accused person. The required process was issued against him under section 204, Cr.P.C. to procure his attendance. The respondent No. 1 appeared before the Sessions Court. The learned Sessions Judge passed the following order:-- "Since the accused was released on bail by the police, therefore, such concession is extended to him with directions to furnish surety in the sum of Rs.50,000 with P.R. bond in the like amount." In pursuance of the said order, the respondent No. 1 was released. The complainant, who is applicant in the present application, was dissatisfied with the order therefore, he has filed the application for cancellation of bail. I have heard the Advocates for the applicant, the respondent No.1 and State counsel. The scheme of the Criminal Procedure Code after submission of Challan before the Court is that first some conditions are required to be fulfiled for initiation of the proceedings which are available in Part VI of Chapter XV(B) of Cr.P.C, under the heading "Conditions requisite for initiation of proceedings". The said conditions are mentioned from sections 190 to 199-B. Once the conditions are fulfiled then the proceedings are to commence as provided by Chapter XVII of Part VI of Cr.P.C. which contains only two sections viz. sections 204 and

205. Then Stats trail of the case. After submission of Challan the Magistrate took the cognizance and sent up the case to the Court of Session. The Sessions Judge also took the cognizance within the meaning of section 193 (1), Cr.P.C. as such the conditions for initiation of proceedings were fulfilled. After examining the material available with the learned Sessions Judge, he issued process against the accused person as such the proceedings were commenced by invoking the provisions of section 204, Cr.P.C. in pursuance of the process issued under section 204, Cr.P.C. which are meant to procure the attendance of accused before the Court, the respondent No.1 appeared before the Court. Therefore, the Court is required to proceed further in accordance with the law. Once the accused appears before the Court in response to process issued under section 204, Cr.P.C. the Court has to examine as to whether or not the offence is bailable or non-bailable. If the Court finds that the offence is bailable then the Court is required to release the accused under section 496, Cr.P.C. If the offence is non-bailable then the Court is required to take the accused in custody or grants him bail within the meaning of section 497, Cr.P.C. The detailed discussion on the above subject has been made by me in the case of Noor Nabi v. The State reported in 2005 PCr.LJ

505. In the present case, the learned Sessions Judge, did not adopt the required procedure concerning the release of the respondent No.

1. The above portion of the order clearly indicates that the Sessions Judge did not apply his mind of give any reason for grant of bail. The order appears to have been passed in a mechanical manner without considering the provisions of section 497, Cr.P.C. because offence falls within the prohibitory clause of section 497, Cr.P.C. As such the order cannot be termed as legal order within the meaning of section 497, Cr.P.C. Thus it is not protected by any provision of law hence it is required to be set aside. Consequently, the above portion of the order, dated 31-12-2000 is set aside. Matter is remanded to the trial Court to decide the bail of the applicant within the meaning of section 497, Cr.P.C. The application is allowed in the above terms. H.B.T./L-13/K Application allowed.