1980 P Cr (PLP)

K. T. Hussain for Respondents. Date of hearing : 6th June, 1979, An order passed by a learned Magistrate lst Class admitting certain persons accused of offences under sections 452/148/149, P. P. C., to bail before actual arrest has been brought under challenge in this petition under sections 439 and 497 (5), Cr. P. C.

2. It appears that the learned Magistrate, acting on Muhammad Sharif and 4 others v. The State (1979 P Cr: L J Note 7 at p. 5) admitted the accused to bail even though they had not been formally arrested. Plea of the learned counsel for the petitioner (complainant) is that the law laid down in the case of Muhammad Sharif is not correct because anticipatory bail cannot be allowed by a Magistrate under section 497, Cr. P. C.-such power is available only with the Sessions Court and the High Court under section 498, Cr. P. C. He has placed reliance on Muhammad Ayub v. Muhammad Yaqub and another (P L D I966 S C 100). It was observed in the case of Muhammad Sharif that "subsection (1) of section 497, Cr. P. C., permits an accused person to appear before a Court of Magistrate even prior to his physical arrest and thus after presenting himself before the Court seek bail under subsection (1) of section 497, Cr. P. C. for all practical purposes, if the Magistrate grants bail it would be bail before physical arrest". In my view, the above observation is not contrary to law. It is, however, necessary to clarify that the exercise of the above referred power by the Magistrate under section 497 Cr. P. C., is subject to certain conditions which were laid down by the Supreme Court in the case of Muhammad Ayub. Their Lordships were pleased to observe at page 1013 of the report as follows:- This question, it is true, was not before their Lordships of the Privy Council, directly it is maintained, on behalf of the respondent, that the word "appears", occurring in sections 496 and 497 of the Code, should apply only to a person, appearing in response to a process, issued by a Court and should not be held to include voluntary appearance by a person, seeking bail. In Sadiq Ali's case, keeping the dictum of the Privy Council in view, I had expressed the opinion that the word "appears" need not be so confined. It is, however, pointed out by learned counsel for the respondent that with the adoption of this connotation of the word "appears" in the general dictionary sense, the result would be that section 498 itself would seem to become redundant. No statutory definition of the word "appears" is given in the Code and the question what precise meaning should attach to it is an open one. The word "Court" in sections 496 and 497, obviously includes the Court of Session and the High Court. If by voluntary appearance, when the person concerned is under immediate apprehension of arrest, either under a warrant issued by a subordinate Court or without warrant, by the Police, grant of bail becomes possible by order of the Court, without the Court being directly seized of the case, under section 497, there would appear to be no need to have recourse to section 498, Cr. P. C., at all. The argument has some force. On further reflection, therefore, I have come to the conclusion that the view in Sadiq Ali's case may require a little modification in so far as the word "appears" in sections 496 and 497, need not be construed to include voluntary appearance, even in circumstances of grave apprehension of arrest. This word may, be taken to have been used in sections 496 and 497, in the same sense as in section 242 or 252 of the Code, which obviously contemplate appearance in answer to a process issued by a Court. This interpretation will have the merit of saving section 498 in its own right. The position that emerges then, would be that under sections 496 and 497, Criminal Procedure Code, the Court can bail out a person only, if he has been placed under actual custody or appears in answer to a process issued or is brought before the Court, presumably by the Police, or by some other arresting authority. In other words, these sections apply where there has been an actual arrest attracting the Court's jurisdiction or the Court is seized of the proceedings directly, in which bail is requested." (Underlining* is by me). [P L D 1966 S C 589].

4. The conditions laid down by the Supreme Court for grant o iii by the Magistrate are as follows :-- (a) if the person seeking bail has been placed under actual custody ; or . (b) he appears in answer to a process issued by the Court; or (c) he is brought before the Court-- (i) by the Police.; or (ii) by some other arresting authority. It is necessary to point out that under the first condition, if a person, after his appearance before the Court, is put under actual custody in connection with the offence for which he has sought bail, the said condition would be satisfied. The condition in the second alternative would be satisfied if, for example, a warrant of arrest has been issued against such a person in connection with such an offence. And the third alternative might be satisfied in a case where, although the Police has not yet formally arrested the person concerned, some other person who is competent under the law to arrest the person concerned for such an offence brings the said person before the Court.

5. In this case, it is not denied that one or the other condition of the afore-described alternatives was satisfied in connection Muhammad Sharif, Jaji and Thela respondents. This petition against them accordingly is dismissed.

6. It is admitted that none of the aforesaid conditions was satisfied in connection with Muhammad Hanif, Master Manzoor Ahmad and C Muhammad Ismail respondents. Bail granted to them by the learned Magistrate accordingly is cancelled, They shall surrender to the proper custody.

7. Learned counsel for the respondents has requested that the last mentioned three respondents be allowed one day's time so that they may repeat an application for bail before the learned lower Court in accordance with law. The request has not been opposed from the side of the State. It is allowed.

8. Before parting with this order it needs to be noticed that the learned counsel for the petitioner complained that some of the learned Magistrates have started granting bail before arrest as a even where merits do not justify the grant thereof. This is not to intention of law in this behalf. It is necessary that the law and the conditions laid dawn in the case of Hidayat Ullah Khan v. The Crown (P L D 1949 Lah. 21), The Crown v. Khushi Muhammad (P L D 1953 F C 170), Sadiq Ali v. The State (P L D 1966 S C 589) and Muhammad Ayub v. Muhammad Yaqub and another (P L D 1966 S C 1003) should be kept in view when considering request for bail, if the accused by passes the normal course of arrest and investigation by the Police, which are very essential stages in detection of crime, recovery of crime connected articles and discovery of criminals in some categories of criminal cases. It is needless to emphasize that .due care, caution and attention are the necessary attributes of every judicial exercise. It would be highly instructive to quote a warning by the Supreme Court contained in the case of Sadiq All. It was observed by their Lordships at page 600 of the report as follows :- "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," Orders accordingly.