P L D 1964 (W (PLP)

ORTCHESON, J.‑The facts leading up to this reference are that one Shahzada Nur Muhammad (hereinafter referred to as the petitioner), who had been arrested in connection with a case under section 302/109, P. P. C., was granted interim bail on the 24th of June 1963 by Mr. Sher Bahadur Khan, Additional Sessions Judge, Lahore, which was confirmed on the 3rd of July 1963 by the learned Sessions Judge. Both the above orders were passed during the course of commitment proceedings pending in the Court of a Magistrate 1st Class, Lahore. On the 13th of February 1964, the learned Magistrate committed the petitioner to the Court of Session and on the same day ordered that he be taken into custody under section 220 of the Code of Criminal Procedure (hereinafter referred to as the Code). The petitioner then applied for bail to Mr. Sher Bahadur Khan, who, on the 26th of February, passed the following order :‑ "No case for bail at this stage, when the case has been committed to Sessions."

2. The petitioner then filed an application (Cr. Mist. 536 of 1964) in this Court praying for the grant of bail till the conclusion of the Sessions trial. In support thereof he relied on Seoti v. Rex (A I R 1948 All. 366) a Full Bench decision of the Allahabad High Court, in which it was held that the committing Magistrate had no power, while committing the accused, to cancel bail granted to him without any limitation by the Sessions Judge before he was committed. (Two other accused in that case had been granted bail by the High Court, but that fact is irrelevant for the purposes of the present case.)

3. The application was heard on the 19th of March 1964 by a learned Single Judge. Before him the State placed reliance on Sheobachan v. The State (A I R 1951 Pat. 82) in which it was held by a Division Bench that Seoti v. Rex had been wrongly decided, and that where a Magistrate is of the opinion that there are reasonable grounds for believing that an accused has been guilty of an offence punishable with death or transportation for life he is bound at the time of committing him to Session, to commit him to custody under the provisions of section 220 of the Code. In the course of his order the learned Judge observed: "The learned counsel appearing in the case in spite of short adjournment granted to them, were not able to lay their hand on any decision of this Court in which the implication of section 220, Cr. P. C., had been dealt with. In view of the importance of the question, it is desirable that the conflict between the Patna High Court and the Allahabad High Court on the point should be resolved. I, therefore, consider it proper that the question formulated by me be referred to a Full Bench. The record of the case may, therefore, be placed before my Lord the Chief Justice for constituting a Full Bench." The learned Chief Justice was, however, of the opinion that it was unnecessary to constitute a Full Bench, and referred the case for disposal to this Bench.

4. The question formulated by the learned Single Judge is:‑ "Whether there is jurisdiction in a Magistrate, when com mitting an accused for trial to the Court of Session, to order him to be taken into custody when previously there had been order passed by the Sessions Judge for the release of the accused on bail ? In spite of the longer time at the disposal of learned counsel, no ruling of this Court giving a finding on the point has been cited before us. It is thus a question of deciding which of the opposing views enunciated in Seoti v. Rex and Sheobachan v. The State is to be preferred.

5. Section 220 of the Code runs :‑ "Until and during the trial the Magistrate shall, subject to the provisions of this Code regarding the taking of bail, commit the accused, by warrant, to custody." On analysis it will be found that the difference of opinion between the Allahabad and Patna High Courts stems from the fact that the words "the provisions of this Code regarding the taking of bail" occurring in section 220 have been interpreted by the Allahabad High Court as referring to section 497 taken as a whole, while in the view of the Patna High Court the words in question are restricted to section 497 (1). In paragraph 8 of their judgment the learned Judges of the Patna High Court remark :‑ "S.220 imperatively directs a Magistrate to commit the accused to custody but this direction is `subject to the provision (sic) of this Code regarding the taking of bail'. No question of any cancellation of bail arises in its direction to commit the accused to custody subject to the condition just stated. The words `subject to the provisions of this Code regarding the taking of bail' refer to section 497 of the Code. This is the only section which deals with `the taking of bail'. We cannot read subsection (5) of section 497, only within the restrictive portion of section 220 since the words used in section 220 are `the taking of bail'. One ought to refer to that part of section 497 which deals with `the taking of bail', that is, sub section (1) of that section. Under subsection (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 and a special provision is made regarding the release of a person under the age of sixteen years or any woman or any sick or infirm person. It is clear, therefore, that when a Magistrate commits an accused for trial before a Court of Session, he cannot order for the release of the accused if there appear to be reasonable ground for believing that the accused had been guilty of an offence punishable with death or transportation for life unless the special provisions regarding the age or sex or sickness apply. Where, therefore, a Magistrate is of the opinion that there are reasonable grounds for believing that an accused has been guilty of an offence punishable with death or trans portation for life, he is bound, when committing him under the provisions of section 220 of the Code, to commit him to custody and there can be no question of cancellation of any bail previously granted to such an accused."

6. With the utmost respect, it appears to me that the restriction of the relevant words in section 220 of the Code to subsection (1) of section 497 is unwarranted. In this connection it is to be noted that the marginal summary of section 497 runs :‑ "when bail may be taken in case of non‑bailable offence." There appears to me to be good ground for construing the words "the taking of bail" in section 220 as referring to the above summary rather than to subsection (1) of section

497. More over, while I respectfully agree with the learned Judges of the Patna High Court that when a Magistrate commits an accused for trial before a Court of Session, he cannot order the release of the accused if there appear to be reasonable grounds for believing him to be guilty of an offence punishable with death or transportation for life unless the special provisions regarding age, sex or sickness apply, it appears to me that when the accused is already at liberty, no question of ordering his release can arise and, further, that by whatever name it may be called, an order directing that an accused on bail be committed to custody amounts to cancellation of the bail.

7. I, therefore, respectfully agree with the view of the learned Judges of the Allahabad High Court that the words "the provisions of this Code regarding the taking of bail" occurring in section 220 of the Code as refer to section 497 taken as a whole and not to subsection (1) of that section in isolation. It is also clear that on the above view, subsection (5) of section 497 of the Code bars a committing Magistrate from cancelling the bail granted to an accused by any other Court, the only Courts empowered by the subsection to arrest a person not released by themselves being the High Court and the Court of Session. In my opinion, therefore, the answer to the question formulated by the learned Single Judge is in the negative.

8. One point arises in the case now before us. Since the bail was cancelled by the committing Magistrate, who had no jurisdiction to do so, and since the learned Additional Sessions Judge who had granted interim bail did not himself cancel it but merely refused to grant fresh bail, it may be argued that the petitioner is technically still on bail. The petitioner has, however, been committed to the Court of Session, which indicates that there is a prima facie case against him, and as he does not come within the ambit of the proviso to c section 497 (1) of the Code, he cannot be allowed to remain at liberty. I would therefore, direct under section 497 (5) of the Code that the petitioner be formally arrested and committed to custody. SHARIRULLAH JAN, J.‑I agree. K. B. A. Reference answered.