P (PLP)

ORDER.‑A report against the accused under section 302 Indian Penal Code for committing the murder of Abdul Hakim alias Keema was made on 23rd of February 1949. Accused was arrested on 26th of February 1949 and an incomplete challan was put ‑in the Court and the remand was taken. On 3Qth of May 1949 the Superintendent of Police on the report of the Inspector directed the Prosecuting Officer to get the accused discharged as the evidence was insufficient against him. The Magistrate instead of discharging the accused admitted him to bail. On 6th of July 1949 the Commissioner of Police however directed the Superintendent of Police to withdraw the report for the discharge of the accused and to put in a complete challan. In compliance with the order of the Commissioner of Police challan was put in on 10th of July 1349 under section 302 Indian Penal Code. The accused however continued on bail. The Public Prosecutor applied to' the Court of Session for cancellation of the' bail. The application was dismissed. Complainant has now come to this Court for the cancellation of the bail of the accused. Section 497 Criminal Procedure Code deals with the question of bail in cases of non‑bailable‑ offences and is to the following effect. (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 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 committed a non‑bailable offence, but that there axle 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. It is clear from the wordings of the section that it gives a discretion to the Court to order release on bail even in cases of non‑bailable offences. But this discretion is controlled by two important restrictions, namely :‑ (1) Where the prosecution can satisfy the Court that there are reasonable grounds for believing that the accused is guilty of a serious offence, which is punishable with death or transporta tion for life, the Court has no discretion, it shall refuse bail. (2) On the other hand, where the defence can satisfy the Court that there are no reasonable grounds for believing that the accused has committed any non‑bailable offence, or, where after trial and 'before judgment, there are reasonable grounds for believing, that he is not guilty, the Court has no option but shall grant bail. In one case it is for the prosecution to prove that there are reasonable grounds for believing that the accused is guilty of a serious offence ; in the other it is for the defence to satisfy the Court that there are no reasonable grounds for believing that the accused had committed any non‑bailable offence. Sub section (1) applies therefore to a stage where the accused is ‑first brought before the Court or his arrest is brought to the notice of the Court ; it does not apply to the application of bail pre sented during the trial. The appropriate provision, applicable where the investigation or inquiry or trial is proceeding, is subsection (2). Under this subsection it is only where the accused can satisfy the Court that there are no reasonable grounds for believing that he has committed the offence that he‑ can be enlarged on bail. The provisions of subsection (2) of section 497 Criminal Procedure Code applies to this case. Here the Police had moved the Magistrate for the dischare of the accused. It means therefore that according to the Police there were no reasonable grounds for believing that the accused had committed non‑bailable offence. The subsequent act of the police and also of the Court only show that there are sufficient grounds for further inquiry into his guilt. In these circumstances the law is clear that the accused shall be released on bail. I am therefore of opinion that in this case there was no alternative for the Court but to release the accused on bail. It was contended by the accused that he is suffering from T. B., and that he had been under the treatment of the Lahore experts as an indoor patient. There is some evidence to that effect on the Sessions file. That could be another point for my consideration to decide this application but in the presence of the view already expressed relating to the application of subsection (2) of section 497 of the Criminal Procedure Code to this case, I ‑have not treated it necessary to enter into the discussion of the question of the illness of the accused to consider the question of his bail. With these observations I would dismiss the petition of the complainant. I would however direct the Magistrate not to allow this case to linger on. The prose cution must be pressed to put the complete evidence without any further delay in the Court. Announced. K. M. A. Petition dismissed.