P L D 1969 Lahore 209 (PLP)

"107 (4).‑A Magistrate before whom a person is sent uncle: subsection (3) may in his discretion detail such person in custody pending further action by himself under this Chapter." It may be pertinent to observe in this context that "this chapter" i.e. Chapter VIII (sections 106 to 126‑A) further lays down the procedure for instituting an inquiry into allegations of appre hended breach of peace etc., against a person, including the execution of bond for keeping the peace or maintaining good behaviour till the conclusion of the inquiry. Section 112 provides for issuing a show‑curse notice if deemed necessary by the Magistrate. Under section 117, if upon an inquiry, the allegations are established, he may be ordered to give security. If, however, on the other hand, the allegations are not proved, he may be discharged under section

119. Under section 123, he may be committed to prison in default of security. If the period for which the security is demanded exceeds one year, his case shall be laid before the Sessions Judge for default of security. Under section 124 the learned District Magistrate is empowered to release persons so imprisoned on account of their failure to give security. Under section 125, he may, for sufficient reasons to be recorded in writing cancel any bond already execu ted. Section 126 empowers a Magistrate to discharge the sureties.

5. The next relevant section to be examined is section

151. Cr. P. C. which in contra distinction to the provisions contained in section 54, allowing a police officer to arrest a person con cerned in any cognizable offence without a warrant, empowers a Police Officer to so arrest a person in anticipation of any cognizable offence which he is designing to commit and which cannot otherwise be prevented except by his arrest. Section 151, Cr. P. C. reads as follows:‑‑‑ "151.‑A Police Officer knowing of a design to commit ands cognizable offence may arrest without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented." It may, however, be remembered that the petitioner was arrested under section 107/151, Cr. P. C.

6. We now come to section 496, Cr. P. C. with whose interpretation we are directly concerned. It reads as follows:‑ "496.‑When any person other than a person accused of a non‑bailable offence is arrested or detained without warrant ?by an officer‑in‑charge of a Police Station, or appears or is brought before a Court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fair, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Provided further, that nothing in this section shall be deemed to affect the provisions of section 107, subsection (4) or section 117, subsection (3) " From the plain reading of the provision, it becomes abun dantly clear that but for the second proviso excepting from the operation of the substantive provision two situations envisaged by sections 107 (4) and 117 (3), the petitioner being admittedly detained without warrant by the respondent, who was an officer incharge of a police station and being prepared while in custody "to give bail" to such officer, should have been released on bail. It is thus the precise scope of the exception created by the second proviso which has to be determined. The two exceptions mentioned there are the provisions of sections 107 (4) and section 117(3) which may be advantageously reproduced together, the former having already been referred to earlier. "107 (4).‑A Magistrate before whom a person is sent under subsection (3) may in his discretion detain such person in custody pending further action by himself under this Chapter." "117(3).‑Pending the completion of the inquiry under subsection (1) the Magistrate, if he considers that immediate measures are necessary for the prevention of‑ a breach of the peace or disturbance of the public tranquillity on the commission of any offence or for the public safety may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 112 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him is custody until such bond is executed or, in default of execution until the inquiry is concluded‑ Provided that:‑ (a) no person against whom proceedings are not being taken under section 108, section 109, or section 110, shall be directed to execute a bond for maintaining good behaviour; and (b) the conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 112." As stated earlier, subsection (4) of section 107, gives a Magis trate of competent jurisdiction the discretion to detain a person in custody, who has begin sent to him as preventive measure by a Magistrate not competent himself to deal with the ease. To somewhat similar effect to the second provision contained in subsection (3) of section 117, investing the Magistrate with the necessary power inter alia to detain a person in custody till the conclusion of inquiry as a preventive measure in default of execution of bonds for keeping the peace or maintaining good behaviour, if called upon to do so. The three provisions contained in sections 496, 107 (4) and 117 (3) read together lead to the irresistible conclusion that while on the one hand, the' law‑giver was fully conscious of the sanctity attached to the liberty of a person and had taken due care to safeguard the same, it had equally taken note of the potential danger to public peace and its possible consequences of far‑reaching implications. The exceptions to section 496, Cr. P. C. obviously seem to have proceeded on considera tions analogous to those envisaged by the Quranic saying: "(Disturbance of public peace is much more serious than murder) being patently fraught with graver dangers. It was contended by the learned counsel for the petitioner that in the subsequent provision contained in subsection (2) of section 497, Cr. P. Code even in cases where there are sufficient grounds for further inquiry into the guilt of a person Including allegations of non‑bailable offences, the police officer or the Court as the case may be is under an obligation to release him on bail pending such inquiry. 'This position cannot be disputed, but the fact however remains that the exceptions created in regard to sections 107 (4) and 117 (3) are clearly based on the gravity of the possible or even probable consequences of distur bance of public peace. If, however, as contended by the learned counsel for the petitioner, a police officer were deemed to be competent on O arrest of a person under section 107/151, Cr. P. C. to release him on bail on offer of sureties, at least a part of the procedure laid down in Chapter VIII, Cr. P.0 Code would be obviated arid the order of release by a police, officer would be obviously in contravention of the provision contained therein, which are equally applicable to the case of a person who is arrested under section 151 on the allegations of imminent apprehensions of breach of peace, from the stage of inquiry envisaged by section 117, Cr. P. C. Besides, Ails would invest tae police officer with snort discretionary powers than a Magistrate which position his obviously no warrant either in law or in common‑sense, having still greater potentialities of abuse, than those alleged in this regard.

7. It was argued that if it had been the intention of the law‑giver to except section 1st, Cr. P. C. from the, operation of the substantive provision contained in section 496, Cr. P. C. the former section should also have bees mentioned in the second proviso along with sections 167 (4) and 117 (3). The argument is wholly misconceived. Section 151, Cr. P. C. deals with an emergent situation and authorises a police officer to prevent apprehended offence by arrest of a person designing to commit the same, without a warrant or without awaiting for the order of a Magistrate. The application of section 107 along w its section 151, Cr. P. C. would clearly indicate that the offence designed to be committed related to the breach of public peace Obviously, therefore, the procedure laid down in Chapter VIII, must needs be followed to deal with the situation which by implication denies the power of immediate release to the police officer even on offering sureties. In the circumstances, therefore, the omission in the second proviso of section 151, Cr. P. C. which does not deal with any particular offence, is wholly immaterial. It only stands to reason that the exception appli cable to ordinary apprehensions of breach of peace under section 107 (4) sought to be prevented by a Magistrate under section 107 (3) should be a fortiori applicable to a case where a police officer in a case of emergency has to resort to the arrest of the person concerned.

8. Yet another argument raised by learned counsel in support of his contention was that section 107/151, Cr. P. C. places in the hands of the police a very dangerous weapon which is often misused to the prejudice of innocent and respectable persona and that the police has earned a considerable notoriety in regard to the invocation of its powers under these two sections, which in most cases than not is made just a pretext to victimise people for personal reasons, and if a police officer were deemed to be competent to release a person arrested under section 107/151, Cr. P. C. on offer of sureties much of this abuse would be obviated particularly when there was no direct provision to the contrary. I am afraid, this argument is equally mis conceived. The statutory provision is to be construed in accordance with the known and reasonable principles of inter pretation. Once the intention of the law‑giver becomes clear, in accordance with these principles, no consideration of practical expediency or possibility of abuse should be allowed to thwart the natural consequences flowing from the correct interpretation C of the statutory provisions. But even otherwise, as stated earlier, to invest a police officer with powers to release on bail a person arrested would in my view be placing a still more dangerous weapon in his hand liable to be grossly abused by unscrupulous police officer.

9. The authorities relied upon by the learned counsel for the petitioner proceed on entirely distinguishable facts. In U. Gandama v. Emperor (A I R 1933 Rang. 164), the District Magistrate had refused bail to the appellant against whom action under section 107, Cr. P. C. had been taken at the instance of the District Magistrate himself. It was held that the appellant was entitled to bail as of right and bail should not have been refused to him. In Ghulam Qadir v. Mistri Fazal Din (P L D 1962 S C 331), it was held by their Lordships of the Supreme Court that section 250 of the code providing for payment of compensation to a complainant who brings false, frivolous and vexatious allegations against an innocent person, is not applicable to proceedings under section 107, Cr. P. C. Their Lordships observed: "It is thus obvious that a person against whom action taken by the Court in advance of the commission of an apprehended crime cannot fall within the expression `person accused of an offence'." It, however, seems clear to be that while on the one hand the person against whom proceedings under section 107, are initiated is not an accused person and apparently stands on a higher footing than the latter, he deliberately seems to have been relegated to an inferior position by a seemingly prejudicial exception created by the law‑giver in his wisdom in the second proviso to section 496, Cr. P. C. As stated earlier this seems to be base 3 on the consideration that prevention is better than cure, and danger to public peace is more serious even than murder. By holding that proceedings under section 107, Cr. P. C. are immune from the penalty provide‑ under section 250, Cc P. C. for false, frivolous and vexatious, allegations, the aforesaid Supreme Court Authority further lends support to this view.

10. In consequence, the petition fails and is hereby, dismissed. A. E./S. Q. Petition dismissed.