P L D 1952 Baluchistan 25 (PLP)

Asim Malik, for Petitioner. Ch. Abdul Haq, P. P., for the Crown. ORDER. This is a revision application under the provisions of section 439, Cr. P. C. against the order dated 14th March 1951 passed by the Assistant Political Agent and Magist rate 1st Class, Quetta in regard to ad order of bail in which certain conditions have been. imposed against the accused -petitioner. For facility of reference the order of the Magistrate is reproduced below :‑ In pursuance of the judicial Commissioner's order the accused may be released on furnishing bail in the sum of Rs. 3,000 with three sureties and personal bond till the deci sion of the case. He is also to furnish an interim security to be of good behaviour till the decision of the case in the sum of Rs. 2,000 with two sureties in personal recognizance as it appears to me .to be necessary to require him to do so. Learned counsel for the petitioner does not question the validity of the first part of the order releasing the accused peti tioner on bail but he has assailed the second part of the order in which the Magistrate has demanded interim security for good behaviour till the decision of the case, alleging that since under Chapter VIII of the Cr. P. q. special provision if made for such proceedings‑ the order of the Magistrate is ultra vices. The question at issue before me therefore is whether or not any conditions can be imposed on an accused when he is releas ed on bail' other than the condition that he will attend the Court when called upon to do so. An important ruling on this point will be found in 185 Indian Cases, p. 249 in which the Calcutta High Court held that the only condition contemplated by a bail bond is a condition for attendance in Court and a bail bond in which any other condition is imposed, such as undertaking for good behaviour, cannot be regarded as a bond under the Code. The circumstances of this particular case were somewhat analogous to the case before me in that the accused, in the case referred to pendency gave an undertaking not to make any speech during the pendency of the ease before him. He did in fact make a speech and the Magistrate accordingly forfeited the bond. This order was, however, set aside for reasons stated above. It appears to me that, whenever a Court requires an accus ed person to furnish a bail bond, the terms of the bail should normally be for attendance and that other conditions should not be imposed. This would be more so in a case where the accused is called upon to be of good behaviour; since there is a separate and distinct provision of law for this purpose. It would be improper to impose such a condition in a bail bond and to ignore the provisions of the Cr. P. C. which provide for such cases. I notice from the wording of the order of the Magistrate that the accused‑petitioner is required to be of good behaviour until the case pending before him is decided. This ‑order is clearly intended as a preventive order. Chapter VIII, Cr. P. C: specifically. provides for such cases where preventive measures are deemed necessary and it would therefore have been more proper for the Magistrate to have taken proceedings under this Chapter. The learned Public Prosecutor has not questioned the validity or otherwise of the order but he has drawn my atten tion to the fact that the accused‑petitioner has approached this Court whereas he should have made first application in the Court of the Sessions judge, since that Court has concurrent jurisdiction in matters of this nature. As a rule of practice it has been laid by the Allahabad.High Court in A I R 1927 All. 834, that a High Court would be reluctant to entertain revision applications of this nature unless application had first been made to the lower Court. I am disposed to agree with the views expressed in this case though there is no provision of law which compels a petitioner to approach the lower Court first. Any mandatory direction on this subject would take away an inherent right which every person possesses to approach the High Court in the first place. I wish to make it clear that I will in future be reluctant to entertain applications of this nature unless there are good and sufficient reasons for a petitioner to approach this Court direct without approaching the lower Court first. Since, however, I have held that there is nothing inherently improper in the presentation of the present petition to this Court, no useful purpose would now be served in declining to entertain it and to refer .the petitioner to the Sessions Court. Since it appears to me that the order of the Magistrate imposing a condition in the bond‑about good behaviour is improper it follows that such order is inconsistent with the general' provisions of the law in regard to. the subject of bail bonds. For the reasons stated above, I consider that that part of the order relating to the condition of good behaviour must be set aside. This order will not have effect on the discretion of the Magistrate in taking security 'proceedings against the accused petitioner in accordance with the provisions of the Cr. P. C., if sufficient information is available to him. K. M. A. Petition accepted.