1968 P (PLP)

FARUQUI, J.--This is an application under section 43S Cr. P. C. praying that the order dated 4-2-64 passes by the II Additional Sessions Judge, Hyderabad, cancelling the bail c the applicant Haji Misri son of Haji Faqir be set aside or i the alternative this Court should grant him bail uncle section 498, Cr. P. C.

2. The petitioner is accused of an offence under section 30: P. P. C. read with section 114, P. P. C. along with two other accused. The cha4lan was put up in the Court of the Sub-Jude and First Class Magistrate, Badin and on", 28-9-63 the learn Magistrate granted interim bail to the petitioner with notice to the State. After hearing the A. P. P. he cancelled the bail on 26-11-63. However, after the main prosecution witnesses had given their evidence an application for bail was renewed and the learned Magistrate granted bail to the petitioner again on 21-12-63. The complainant in this case moved the Sessions Judge, Hyderabad under section 497 (5), Cr. P. C. for the cancellation of the bail of the petitioner and the learned Sessions Judge after issuing notice to the petitioner transferred the applica tion to the II Additional Sessions Judge, Hyderabad who passed the impugned order dated 4-2-64 cancelling the bail of the petitioner. It is against this order that the revision application is directed.

3. The contention of Mr. Qazi, the learned Advocate for the petitioner before me was that the power to cancel bail under section 497 (5) is given to the High Court or the Court of Session. It was then urged that there is no provision in the Criminal Procedure Code entitling the Sessions Judge to transfer an application for the cancellation of bail to the additional Sessions Judge in a case in which the accused have not been committed to Session and the case is not made over by the Sessions Judge to that Additional Sessions Judge for trial under section 193(2) of the Code. It was pointed out that where it was intended that the Sessions Judge should have such pourer of transfer it has been so expressly stated in the Code. Reference was made to section 123 (3-B) and section 438 (2) of the Code. The learned Advocate relied upon a decision of the Indian jurisdiction in the case of Kala v. State (A I R 1954 Raj. 22) a judgment of a Single Judge of the Rajas than High Court. However, when the attention of the learned Advocate was drawn to section 17 (4) of the Code he contended that this subsection did not apply to the present case. Subsection (4) reads as follows :-- _ "The Sessions. Judge may also, when he himself is unavoid ably absent or incapable of acting, make; provision for the disposal of any urgent application by an Additional or Assistant Sessions Judge or, if there be no Additional or Assistant Judge, by the District Magistrate and such Judge or Magistrate shall have jurisdiction to deal "with any such application." It was conceded by the learned advocate that the Sessions Judge, Hyderabad had made an order transferring the application of the complainant for the cancellation of the bail of the petitioner to the 11 Additional Sessions Judge. It was also conceded that the Sessions Judge on that day was doing a Sessions case. The 'contention of Mr. Qazi, however, was that this subsection applies only when the Sessions Judge is either unavoidably absent or incapable of acting. That is quite true, but consi dering that in either event the Sessions Judge is empowered to make provision for the disposal of any urgent application, it must follow that. there may be an instance when the Sessions Judge may be present in Court and yet he may be incapable of acting. I asked Mr. Qazi as to what kind of incapacity was contemplated and be answered that there may be a situation when the Sessions Judge may be engaged in some thing which is of a very urgent nature, and in that case he could transfer an urgent application to the Additional Sessions Judge. He added that another instance of incapacity would be such as is contemplated under section 556 of the Cede. it appears to me that the question whether the Sessions Judge was incapable of acting is one of fact. The word 'incapable' does not necessarily relate to physical incapacity or to a legal disability as pointed out by Mr. Qazi with reference to' section

556. In Ballentine's Law Dictionary, 1948 Edition, about the word 'incapable' it is said that it is sometimes used in the sense of inability. Therefore, if the learned Session Judge was doing a sessions case and for that reason found himself unable to dispose of the application of the complainant and made it over to the II Additional Sessions Judge, I do not thin that this was outside his power given to him under section 17 of the Cede. Indeed, in the Rajas than decision by Mr. Qazi when the attention of the learned Judge was drawn to the provisions of section 17 by the counsel for the State, he turned him down by saying that looking to the language of the order of the Sessions Judge the contention did not appear to him to be good.

4. In view of the conclusion that I have reached with reference to section 17 of the Code I am of the opinion that the contention of the learned Advocate that the order of the II Additional Sessions Judge was without jurisdiction cannot be sustained.

2. Mr. Qazi then attempted to argue that this was a fit case in which bail should be granted by this Court under section 498, Cr. P. C. He contended that even the words which were imputed to the petitioner as being by way of instigation did not necessarily lead to the only inference that the alleged instigation was. to cause injury to the deceased. I haven't the record of the case before me and I do not think it would be proper for me to go into questions of fact without the full record being before me. It is open to the" petitioner to make, a fresh application for bail before the Sessions Judge -under section 498, Cr. P. C. Mr. Qazi complained that the case was still with the committal. Court because of an order of transfer. I, therefore, direct that the committal Magistrate shall complete the proceed ings with utmost speed and if possible from day to day and pass his order one way or the other. With these observations I dismiss the application. Application dismissed.