P L D 1966 Supreme Court 589 (PLP)

S. A. RAHMAN, J.-This appeal, by special leave, has arisen in the following circumstances: The appellant, Sadiq Ali, is an Assistant Sub-Inspector of Police. The C. I. A. Police started enquiries against him and his subordinate, Abdul Rahim, Head Constable, in July 1963, for offences, falling within sections 220, 330 and 392, Pakistan Penal Code. The appellant applied for bail before arrest to the Sessions Judge, Tharparkar at Mirpurkhas, on the ground that the C. I. A. were out to arrest him, on allegations which he characterised as false. The learned Sessions Judge granted ad interim bail and issued notice to the Public Prosecutor for the 15th of July 1963 the directed at the same time that the Police should also be informed. On the date fixed, the appellant and the Public Prose cutor were heard and the application for bail was finally rejected. The learned Sessions Judge ordered that the appellant be remanded to police custody, and, for that purpose, directed that his Court Orderly should take charge of him. It was alleged that he escaped from that custody, went to Karachi and moved a petition in the High Court of West Pakistan for bail. Ad interim bail was granted to him by the High Court on the 29th July 1963. Eventually, on the 26th of August 1963, the High Court directed the appellant to appear in the Court of Subordinate Judge and First Class Magistrate, Umar-kot, on the 3rd of September 1963, as the police had, in the meantime, sent up a charge-sheet against him. The ad interim bail was extended till that date. On the 10th of August 1963, a complaint was lodged by the learned Sessions Judge under section 224, Pakistan Penal Code against the appellant, and this was sent for trial to the Joint Civil Judge and Magistrate First Class, Mirpurkhas. The complain: alleged that Sadiq Ali had escaped from lawful custody. The appellant then approached the High Court of West Pakistan with a petition, praying that the proceedings pending against him under section 224, Pakistan Penal Code, be quashed, and, in the alterna tive, that the case be transferred to another Court. A learned single Judge of the High Court declined to quash the proceedings, but ordered the transfer of the case to the Court of the Sessions Judge, Hyderabad. From this order, the appellant obtained special leave to appeal, on the plea that the learned Sessions Judge had acted illegally in remanding the petitioner to custody while dismissing his application for bail before arrest and that, in any A event, the order of transfer of the case, from the Court of the Magistrate to that of the Sessions Judge, was bad in law. The appeal came up for hearing before a Bench of this Court, which felt that the appeal involved a question of general importance, affecting the powers of criminal Courts to grant bail before arrest. The Bench, therefore, directed that notice should go to the Attorney-General for Pakistan and the Advocate-General of West Pakistan, to appear and assist the Court, at the next hearing on this important question of law. The appeal has now been heard by the Full Court, and we have heard the learned counsel for the appellant as well as the Law Officers of the State. The main ground, on which the judgment of the High Court proceeded in this case, was that it was difficult to hold, without evidence being recorded, as to whether the proceedings pending in the Court of the Magistrate, amounted to an abuse of the process of the Court, so as to warrant interference by the High Court. As for the order of transfer of the case to the Court of the Sessions Judge, Hyderabad, the learned single Judge omitted to notice that the offence under section 224, Pakistan Penal Code, was triable by the Magistrate of the First or Second Class and the learned Sessions Judge would have no jurisdiction to try it, without a formal order of commitment. This part of the order of the High Court has not been supported, on behalf of the State, and was obviously misconceived. It is contended on behalf of the appellant that the order, passed by the learned Sessions Judge by which he granted anticipatory bail to him was without jurisdiction and void and, consequently, all subsequent proceedings started against him fell with it. Reliance was placed in this connection on Crown v. Khushi Muhammad (P L D 1953 F C 170), which negatived the power of Courts togrant bail to an accused person; unless he was in actual custody or subject to some form of imminently threatened restraint under a warrant of arrest issued against him. The question that arises for consideration is whether the rule in Khushi Muhammad's case should not be extended to cover the case of an accused person who is in imminent danger of arrest by the Police, without a warrant, in respect of cognizable offence alleged to have been committed, The provisions with regard to bail to be granted to accused persons are contained in Chapter XXXIX of the Code of Criminal Procedure. As has been laid down by the Judicial Committee of the Privy Council in Jairarn Das and others v. King Emperor (72 1 A 121), this Chapter of the Code deals exhaustively with the subject of bail to accused persons, the question of grant of bail to convicts being dealt with in section 426 of the Code. In the words of their Lordships: "The scheme of Chapter XXXIX is that sections 496 and 497, provide for the granting of bail to accused persons before trial, and the other sections of the Chapter deal with matters ancillary or subsidiary to that provision." The expression "before trial" in this observation was perhaps not a happy one, as it is clear that bail can be granted to an accused person under sections 496 and 497 of the Code, at any stage prior to conviction being recorded. The question that fell for consideration in Khushi Muhammad's case was not before the Privy Council in that case. It seems necessary to set out the provisions of sections 496, 497 and 498 of the Code of Criminal Procedure; in order to appreciate the points that call for consideration. They are repro duced below:- "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 fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as herein after 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). 497. (1) When any person accused of any 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, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or transportation for life: Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has com mitted a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) An officer or a Court releasing any person on bail under subsection (1) or subsection (2) shall record in writing his or its reasons for so doing. (4) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody on the execution by him of a bond without sureties for his appearance to hear judgment delivered. (5) A High Court or Court of Session and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody. 498. The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High Court or Court of Session may, in any case, whether there be an appeal on convic tion or not, direct that any person be admitted to bail, or that the bail required by a police officer or Magistrate be reduced." The case of the appellant could, if at all, fall to be considered under section 497 read with section 498 of the Code. The offences charged against him were not punishable with death or transporta tion for life and the restrictive words of section 497, would not, therefore, be attracted to his case. One of these offences, vie. that under section 392, Pakistan Penal Code, was non-bailable. The subject of consideration by the Federal Court in Crown v. Khushi Muhammad was an order passed by Kayani, J. of the Lahore High Court to the effect that the accused, pending investigation of an offence under section 366, Pakistan Penal Code, should be released on bail by the District Magistrate, "if it is intended to arrest him". The order was passed on the authority of a Full Bench decision of that Court in Hidayat Ullah Khan v. The Crown (P L D 1949 Lah. 211), in which it had been held that "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". This view was disapproved by the Federal Court. Reference was made in the judgment of the Federal Court, inter alia, to ruling of the Sind Chief Court, reported as Muhammad Abbas v. The Crown (P L D 1950 Sind 80) and a decision of the East Punjab High Court, published as Amir Chand v. The Crown (AIR 1950 EP53), in which disagreement was expressed with the Lahore Full Bench view. The opinion in the Full Bench case of Hidayal Ullah Khan was delivered by Cornelius, J., (as he then was), and was concurred in by Muhammad Munir, A. C. J. and Muhammad Sharif, J. It was recognised in that ruling that there was no inherent power in the High Court to grant bail to accused persons and that such power was necessarily derivable from the provisions of Chapter XXXIX of the Code of Criminal Procedure. Cornelius, J. after a survey of the relevant provisions of the Code, pointed out that police officers had vast powers of arrest, without warrant, under sections 54 and 55 of the Code. He then proceeded to analyse the provisions of sections 496, 497 and 498 of the Code. The conten tion was raised in that case, on behalf of the petitioner, that the High Court drew its powers of grant of bail, from section 497, read with section 498 of the Code, in respect of non-bailable offences and the powers became exercisable upon the appearance of the petitioner in Court, because by such appearance he purported to surrender himself to the Court, i.e. placed himself in legal custody. It was observed that the argument involved patent diffi culties, there being no warrant in law for the belief that a Court possesses any powers to take into its custody, a person offering himself for the purpose, if there be no justification in law for such action. It was pointed out that the least that is necessary for the exercise of such powers is that the person concerned should have either committed a crime, or there should be reasonable suspicion or reliable information against him that he had done some such act. The argument raised by the learned Advocate-General, that when sections 496 and 497 speak of a person who "appears before a Court", the reference must be to a person who attends in com pliance with a summons issued by the Court under section 204 of the Criminal Procedure Code, and to no other kind of appearance, was then considered and it was remarked that the contention was acceptable only to the extent that, as has been seen already, mere voluntary appearance of a person before the Court does not entitle the Court without more to take him into custody for the purpose of exercising the power of granting bail. The further argument of the learned Advocate-General that the Code did not contemplate any for the grant of otherwise roan action which has the effect of releasing a person from custody, whether actual or threatened, was declared to be not well-founded. The words occurring in section 498 "direct that any person be admitted to bail" were emphasized and the opinion was expressed that the power of the Court extended not only to the grant of bail to persons who are in the custody of the High Court, or of an inferior Court or a police officer, but also includes a power to give direc tions in exceptional cases that persons should be admitted to bail, who are not in custody. It was remarked that the powers given to the High Court by section 498 and subsection (5) of section 497, includes the power to control the discretion of police officers and Courts of first instance, as regards all the matters entrusted to them, with one possible exception, namely, that there is no power to enhance the bail demanded. The case of a person accused of non-bailable offence, happening to be present with a police officer, receiving credible information against him, in respect of such an offence, was then visualized and it was observed that there would be no contravention of anything contained in the Code, if the police officer, in a proper case, granted such person bail, forth with, "without going through the formality of arresting him". This statement was criticised in Khushi Muhammad's case by the learned Chief Justice of the Federal Court in view of the provi sions of section 46 of the Code, which contemplate that there could be an arrest by mere submission to custody, by word or action and there need be no physical confinement of the person concerned. I venture to think that perhaps Cornelius, J. was contemplating cases of physical confinement when he referred to the "formality of arrest", in the context in which the remarks occur. However, the principal ground of decision in Hidayat U11ah Khan's case was based on the difference of language employed by the Legislature, in sections 496 and 497 of the Code, as compared with that used in section 498. It was thought that the words "direct that any person be released on bail" were wider in conno tation, than the words "released on bail", occurring in the first two sections. The Federal Court held that the expression "admitted to bail" and "released on bail" have the same meaning, and for this purpose, reference was made to several provisions of the Code which indicated that the two expressions were synonymous. Sections 51, 62, 500, 427 and 563 (2) were mentioned in this con nection. A similar line of argument appears to have found favour with the learned Judges of the Sind Chief Court and in the East Punjab High Court. With respect, I find myself in agreement with this interpretation given by the Federal Court. In the Federal Court decision and in the other cases referred to above, disagreement with the dictum in Hidayat U11ah Khan's case was also grounded on the hypothesis that it might lead to difficul ties and complications in practice. The case was envisaged of a free citizen's application for anticipatory bail succeeding, without there being a warrant of arrest against him, pending execution. It was conceivable, according to the argument, that the sureties, offered might be found to be inadequate or the sureties, after acceptance, might apply for their discharge, and in these even tualities, the person concerned might be ordered to be detained in custody, unjustifiably, if the investigation against him did not culminate in his arrests With the utmost deference, it seems to me that these complications are not likely to arise in a genuine case, where the police are out to arrest an accused person, on an accusation of a non-bailable and cognizable offence, and it is clear that, but for the intervention of the Court, he would be placed under arrest. If the form of the order be as contemplated in Hidayat Ullah Khan's case, there would be a direction issued to the police official concerned that the accused be admitted to bail, if it is proposed to arrest him, to the satisfaction of the arresting officer. Such an order could not entail the catastrophic result of a free citizen being placed in jeopardy of unjustifiable detention. In Muhammad Abbas v. The Crown the learned Judge of the Sind Chief Court pressed into service another argument for holding that the High Court had no power to direct a police official to grant bail, as the power conferred by section 498, was merely revisional and could not be exercised before the subordinate autho rity had the opportunity of recourse to it. This view was expressly dissented from in Khushi Muhammad's case by the Federal Court and it was laid down that the power exercisable under section 498, was not merely revisional, but concurrent with that of the subordinate authorities and therefore not conditioned by the previous exercise of that power, by them. The propositions that emerge from the Federal Court judg ment in Khushi Muhammad's case, are: (i) Section 498 of the Code is merely subsidiary or ancillary to the provisions contained in sections 496 and 497 of the Code and that it confers no larger powers on the High Court as compared with the powers of the subordinate authorities under these two sections. The High Court, however, enjoys concurrent powers with the subordinate Courts or the Police under these provisions. (ii) The grantee of bail is placed under a restraint, namely, that of the sureties, in place of an existing custody and therefore bail is really substitution of one form of custody by another. The definition of "bail" in Wharton's Law Lexicon and Stroud's Judicial Dictionary and the provisions of section 308 of the Criminal Procedure Code were referred to in this connection. (iii) The words "in any case" occurring in section 498 do not include a convict within its scope, nor one who has not been taken into custody, or against whom no warrant of arrest has been issued. Even where a warrant of arrest has been sent out, the person concerned must surrender in Court, before bail can be granted to him. The first and second propositions do not seem to me to call for comment. However, with the utmost respect and with due deference to the great weight of authority of the Federal Court, in my humble judgment, the third proposition is couched in unduly restricted terms. On principle, I see no difference between the case of a person against whom a warrant of arrest has been issued and one whose arrest, at the hands of the police, without a warrant, is imminent, unless the Court intervenes. It is only the certainty of arrest in the case of a warrant, that can be accepted as the foundation for the exercise of the power of bail and the inevit ability of such arrest may be equated with actual restraint or custody. Why is such certainty lacking in a case where steps taken) by the Police, establish to the satisfaction of the Court, that for an alleged cognizable offence under investigation, the Police, under their vast and undoubted powers of arrest without warrant, are determined to take the accused into custody? If the form of the order requires the Police officer to admit the accused to bail, to his satisfaction, it amounts to no more than the substitution of one form of threatened custody by another, viz. bail. The powers of the Court being concurrent with those of the Police, this fettering of the Police Officer's discretion by order of the Court, does not seem to be exceptionable, on the language of sections 497 and 498 of the Criminal Procedure Code. It is noteworthy that when a Police Officer makes an arrest, without warrant, he must not detain the accused in custody for more than 24 hours, in the absence of a special order from a Magistrate, passed under section 167 read with section 61 of the Code. This provides an index to the subservience of the Police in such matters to judicial E determination. As has been hinted in Hidayat Ullah Khan's case further, the word "appears", occurring in sections 496 and 4971 of the Code need not be necessarily confined to cases, where a person has been summoned to appear in Court. A person P against whom accusation has been laid, either in Court or the police, might anticipate the issue of a process against him and "appear" voluntarily in Court. He would thus be placing himself in custodia legis, to be dealt with in accordance with law. Our attention was also invited to Shaukat Hussain Rizvi v. The State (P L D 1961 Kar. 121) in which a learned single Judge of the Karachi Bench of the West Pakistan High Court expressed the view that the benefit of bail could be extended to persons whom the police were out to arrest and where the police had taken active steps towards that end. Such a case, in the opinion of the learned Judge, would be on a par with that of a person against whom a warrant of arrest had been issued. On the contrary, another learned single Judge of the High Court in Juma Khan v. The State (P L D 1960 Pesh. 25) confined himself to the rule laid down in Khushi Muhammad's case by the Federal Court, and held that the Code did not contemplate grant of bail, except in cases where a person was held under arrest or in custody or where at least a warrant of arrest had been issued against him. Mention may also be made of Sobti's case in which Blacker, J. of the Lahore High Court declined to grant bail to a person, whose case was under investigation by the Police (Criminal Mis cellaneous No. 743 of 1943, decided on 19-10-43). This decision was referred to with approval in the Federal Court judgment as well as by the East Punjab High Court. It appears, however, that in that case. the learned Advocate-General had stated before the Court, that the Police had not yet even decided whether they would prosecute Sobti for an offence. That case is, therefore, distinguishable from the type of cases under consideration here. The learned Attorney-General elucidated the position under English Law in this regard, by a reference to "The Practice of the Crown Office" by F. H. Short and F. H. Mellore, Second Edition, p. 287. It is mentioned therein that "It was formerly a general rule of practice that the Court would not entertain an application to admit to bail unless the defendant was in actual custody and committed, but that rule has, in some cases, been relaxed, and a summons granted to show cause `why, upon the defendant surren dering to the warrant, he should not be admitted to bail', and upon the defendant's appearing on application, which, in such cases, is absolutely necessary; the application has been entertained, and the defendant admitted to bail accordingly. In some cases orders have been made for a defendant to be bailed upon his surrendering to the warrant before a magistrate at the time of putting in bail". This statement is supported by reference to some old decided cases in England. The learned Attorney-General also drew our attention to Rex v. Wren ((1836) 5 Dowling 222). In that case, an application was made for a writ of certiorari to remove certain depositions taken before the coroner, together with the inquisition on a charge of manslaughter against the defendant. The object of the application was, that the defendant might be admitted to bail. It appeared that the coroner had issued his warrant against the defendant, but that he had not been taken upon it. It was also sought to make it part of the terms of the rule, that the defendant should be admitted to bail before a magistrate, in order to avoid his being compelled to go into custody. Littledale, J. (after consulting with Mr. Robinson, of the Crown Office) recorded a short order in that case, in the following terms:-- "That part of the rule cannot be introduced, as the defendant is not in custody. In order to do that, he must surrender. If he were in custody already, it might be made part of the rule that he should be bailed before a magistrate in the country. If he does not surrender, what is to become of him between the time of the Court taking into consideration the depositions and inquisition and the time of bailing him? This might enable him to try the experiment of having the inquisition and deposi tions examined by the Court: then, if the Court should be of opinion that he ought to be bailed, he would give bail, but, if the Court should be of opinion that he ought not to be bailed, then of course he would not come into custody. You may take the rule for the certiorari, but without the introduction of the term you mentioned." It seems there is no decided case in England in which antici patory bail might have been allowed to an accused person, threatened with arrest by the police. The practice of the English Courts, however, cannot be decisive of the point that confronts us in this case and which calls for decisions on interpretation of the language of our own written Codes, in the light of condi tions prevailing in this country. Of course, even in the case of an imminent police arrest, no order should be passed for grant of bail by a Court, unless the petitioner personally appears before the Court, even under Pakistan law. As a result of the above discussion, I have reached the con clusion that the rule laid down in Khushi Muhammad's case could be safely extended to a direction for the grant of bail to a person, whose arrest, on a criminal charge by the police, without a warrant, is proved to be imminent and certain, and where the circumstances would justify the grant of bail. Such an interpre tation, in my humble judgment, is consistent with the language of sections 496 and 497 of the Code and involves no widening of the scope of the power given by section 498 as compared with its extent under the former sections. Indeed, such an order might be eminently called for, in certain circumstances of grave charac ter, affecting the liberty of a citizen. Indiscriminate grant of bail, however, merely on the request of a person, who appears in Court and thereby surrenders himself to that Court, without the other, conditions for such bail being satisfied, would amount to an act of judicial extravagance which cannot be countenanced. It is only in a genuine case of this kind that the exercise of the power of bail would be called for. In this connection, I can do no better than reproduce the warning contained in the judg ment of Cornelius, J. in Hidayat Ullah Khan's case. It was said in that judgment;- "Be that as it may, I can see no ground for supposing that the power of the High Court under section 498 would not extend to the making of an order to such police officer to admit such person to tail. Such cases would necessarily be extremely rare, and by its very nature, the power to interfere with the discretion of an official such as a police officer exercising statutory powers, perhaps at some remote place, at the very earliest stages of investigation, would require to be exercised with the very greatest care. The Court would reed to be satis fied that if it stayed its bands until the police officer had himself exercised his discretion in the matter and refused, upon arrest to grant bail, a grave or irreparable wrong or injustice might result which it was in the highest degree desirable to avoid, while at the same time, preserving the interests of justice so far as they related to the charge against such accused person." Again, in the end of his judgment, Cornelius, expressed himself as follows:- "The exercise of this power should, 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 motives and with the object of injuring the petitioner, or that the petitioner would in such an eventually suffer an irreparable harm." With respect, it seems to me, that these observations put the necessity for extreme caution in such cases clearly and succinctly. Coming now to the facts of the instant case, it seems that the appellant, while applying for bail before arrest to the Sessions Judge, had protested his innocence in the relevant proceedings, but had asserted that the Police Inspector was threatening to arrest him on a charge in respect of at least one non-bailable offence. The order, passed by the learned Sessions Judge, does not mention any reasons for the grant of ad interim bail, but presum ably he accepted the truth of the assertion, made by the petitioner appellant that his arrest was imminent, as prima facie correct. I am, therefore, unable to accede to the contention, raised on behalf of the appellant, that the proceedings, in which the ad interim bail was granted to the appellant by the Sessions Judge, were entirely without jurisdiction. There is no doubt that if the rule in Khushi Muhammad's case were to be applied in all its rigor, then such a contention would have perforce to be accepted as correct. But as I have attempted to show above, there seems no reason why the rule should not be extended to cover the case of an imminent arrest at the hands of the police, in an appropriate case. However, that does not end the matter. The subsequent order, by which the ad interim bail was cancelled, was passed by the learned Sessions Judge, after hearing the Public Prosecutor who seemed to have got hold of the police file and pointed out that some ocular evidence was available against the appellant in the case. No police officer seems to have attended that hearing, to claim the body of the appellant, in case his bail was cancelled, despite the fact that information of the date of hearing had been sent to the police. The cancellation of the bail by the learned Sessions Judge, therefore, did not entail the conse quence that he had to be ordered to be given into police custody, without there being a request in that behalf by the police itself. The proper order to pass in these circumstances was to cancel the ad interm bail, and to leave the appellant to be dealt with by the police, as they thought fit. He would thus be in no better and no worse position than before he was granted ad interim bail. In these circumstances, therefore, the order, consigning the appellant to police custody, was unwarranted and must be held to be vitiated by lack of jurisdiction. It follows, in consequence, that the custody, from which the appellant is said to have escaped, was not lawful, and the proceedings started against him, on the basis of that escape, could not be sustained. The argument advanced by the learned Advocate-General, West Pakistan, that the appel lant having submitted himself to the jurisdiction of the learned Sessions Judge by his own act, could not later turn round and challenge that jurisdiction when the ad interim bail was cancelled, cannot be acceded to as correct. No principle akin to estoppel can be pressed into service in such criminal proceedings when the impugned order passed at a subsequent stage in the proceedings is found to be unwarranted in law. I would, therefore, hold the proceedings pending under section 224, Pakistan Penal Code, against the appellant are liable to be quashed. In view of this order, the question. of transfer of the case to another Court assumes an academic character, and nothing further need be said about it. I would, therefore, allow the appeal and quash the pro ceedings pending against the appellant under section 224, Pakistan Penal Code. A. R. CORNELIUS, C. J.-I agree. FAZLE AKBAR, J.-I agree. HAMOODUR RAHMAN, J.-I agree. MUHAMMAD YAQUB ALI, J.-I agree. A. H.