1968 PLP 251 (SCMR)

MUHAMMAD YAQUB ALI, J.-This appeal is from the order of a Division Bench of the High Court dated the 5th January 1967, refusing to enlarge on bail Serajul Hague, appellant, during the pendency of his trial along with four other accused on charges under section 381/409/411/34, P. P. C. The appellant was a Foreman in Engineering Workshop, Pakistan Eastern Railway, at Chittagong. On 19-7-1966 a case under the aforesaid provisions of the Penal Code was registered against him on the allegations that a large number of doors and windows had been removed by him from the said workshop in collusion with others and the same were later recovered from a godown in the office of A. Rahim, co-accused, a Foreman of the Bridge Engineering Workshop. The appellant was placed under arrest in September 1966, whereupon he moved a number of bail applications the last of which was rejected by the Sub-Divisional Magistrate, Chittagong, on the 24th October 1966. An appeal preferred from the order refusing bail was rejected by the Sessions Judge on the 1st November 1966, with the remarks that the appellant if released on bail will in all probability tamper with the evidence. The appellant then moved the High Court under sections 439 and 498 of the Code of Criminal Procedure for grant of bail. The application was opposed by the State on the same ground viz. that there was an apprehension that the appellant would tamper with the evidence of those witnesses who were subordinate to him and the chance of his doing so could not be ruled out. "It was contended on behalf of the appellant that there was not basis for the apprehension that on being enlarged on bail he will tamper with the witnesses, but the learned Judges while observing that "there is no material in support of the finding of the Sessions Judge that if the petitioner be released on bail, he will get into the company of some big persons for the purpose of tampering" rejected the prayer for bail on the ground "that there are under the petitioner persons who are directly witnesses in this case and as such the chances of tampering cannot be ruled out" Thereafter, a second application was moved on behalf of the appellant for bail in the High Court on the fresh grounds that the Engineering Workshop, P. E. Railway, Chittagong was completely and finally wound up under the orders of the Chairman, East Pakistan Railway Board and the staff who had worked untie, the appellant had been transferred to the Mechanical Workshop. P. E. Railway, Pahartali, under the Administrative control of the Chief Mechanical Engineer. It was, therefore, impossible for the appel lant to tamper with evidence; and that the appellant having beenplaced under suspension had no possibility of having any influence on the witnesses. The learned Judges one of whom was a party to the earlier decision looked upon the application with disfavour and ruling out the above grounds observed: "The fashion in which this fresh attempt has been made is deprecated". They found that no fresh fact had come into existence and that the proximity of the appellant to the employees and the staff had not in any way been removed by mere change of the staff. Leave to appeal was granted to consider whether the discretion vested in the High Court in such matters was exercised according to the rule of reason and justice and interim bail allowed to the appellant to the satisfaction of the District Magis trate pending the hearing of the appeal. It appears that in rendering their first decision the learned Judges of the High Court did not apply their own minds to the reasons on which the application under section 498 of the Code for grant of bail was based. Indeed they found in favour of the appellant that there was no material in support of the finding by the Sessions Judge that the appellant if released on bail will tamper with evidence, but nevertheless they followed his view that the chances of tampering could not be ruled out. Similarly in rejecting the second application for bail the learned Judges acted on "the scope of tampering by reason of the proximity of the petitioner to the employees and the staff". This worked out to the same thing as was said by the Sessions Judge "that the chances of tampering could not be ruled out. Under section 497 of the Code of Criminal Procedure when any person accused of any non-bailable offence is arrested or appears or is brought before a Court he may be released on bail, but shall not be so released if there appear reasonable grounds for blieving that he has been guilty of an offence punishable with death or transportaion for life. Since the offences with which the appellant is charged do not fall within the exception clause his prayer for bail could be refused only for good and sufficient reasons and not on whimsical grounds. The learned Judges of the High Court having found that there was no material in support of the finding by the Sessions Judge that if the appellant be released on bail he will tamper with evidence the only proper order to pass in the case was to accept the application for bail, but they proceeded to speculate that the chances of tampering could not be ruled out as the witnesses in the case had worked under the appellant. In this they failed to exercise the discretion vested in the High Court according to the rule of reason and justice. It is unnecessary to dwell further on the legal side of the case for as seen above the appellant was on the 10th February 1967, allowed interim bail by this Court and Mr. T. H. Khan who appears for the State is not in a position to state that-during this period there has been any attempt at tampering with the witnesses. The apprehension on which the Sessions Judge and the learned Judges of the High Court acted in refusing bail to the appellant was, therefore, unfounded. We accordingly allow this appeal and direct that during the trial the appellant shall remain on the bail already furnished in pursuance to the order of this Court dated the 10th February 1967. Appeal accepted.