P (PLP)

R. K. M. SAKER, J. C. This is an application under section 497, subsection (5) of the Criminal Procedure Cede by the Crown against the order, dated 1st December 1950, granting bail passed by the Sessions Judge in Baluchistan under the provision:: of section 498, Criminal Procedure Code. Before I proceed to deal with the merits of the case learned counsel for the respondents raised a preliminary objection; that since the application had been made under subsection (5) of section 497, Criminal Procedure Code, it could not be enter tained because the powers conferred by this section were limited only to cases in which accused persons had been released under section 497, Criminal Procedure Code, and did not apply in cases where bail had been granted under section 498, Criminal Procedure Code. The entire question of the granting or the refusal to grant bail or the cancellation of bail has been elaborately discussed in P. L. D. 1950, Lah. p. 280 (288) and in this judgment reference is made to A. I. R. 1945 Mad. p. 250 in which it was held that when the respondent had not been released under section 49, but under section 498, Criminal Procedure Code, the High Court could not interfere under section 497 (5), Criminal Procedure Cods:, but that the High Court had adequate jurisdiction under section 561‑A of the Criminal Procedure Code to review the order granting bail. There can, in my view, be no question but that this is the correct interpretation of the law as it stands, for since the order of the learned Sessions Judge is on record in which he has granted bail under section 498, Criminal Procedure Code, the powers of this Court to cancel the bail under the: provisions of section 497 (5) of the Criminal Procedure Code cannot be invoked. The second preliminary objection raised by the learned counsel for respondent was that since the accused‑respondent were alleged to have committed an offence under Act XXIX of 1948 within the limits of the Leased Areas they could be tried under this particular Act since it has not been applied ti; the Leased Areas. Since the accused have not yet been chal laned and it is not known in what Court they will be challaned that is, whether in Quetta or Peshin--‑it would be premature to discuss and decide this point on the basis of the application before me. The accused‑respondents will be at liberty to raise this point before the trial Court if and when they ate challaned and they will be at liberty to approach this Court against any order of the trial Court of which they feel aggrieved. Since I have held that an application under section 497(5) Criminal Procedure Code, against an order passed under section 498, Criminal Procedure Code, is not competent I propose to deal with the case as argued before me by the learned Public Prosecutor and by learned counsel for the respondents on its merits in exercise of the powers conferred upon me by section 561‑A, Criminal Procedure Code. As I have already stated above, the general question of bail has been elaborately discussed in P. L. D. 1950, pp. 280‑288 and it is necessary firstly to see the general circumstances under which bail when once allowed should be refused. In passing his order regarding bail the learned sessions judge has given reasons for so doing, but in refusing to grant bail it is generally necessary to see whether there are reasonable grounds for believing that the accused liar committed some offence and secondly that whether he is likely to tamper with the evidence during his enlargement on bail. The case in question is one of black marketing which in itself is a serious offence but which is not punishable under Act XXIX of 1948 with death or transportation for life. The powers to release accused persons on bail under the provisions of section 498, Criminal Procedure Code, are virtually unlimited and the question is one entirely of discretion while bearing in mind the general principle enunciated above. It would obviously be in advisable for a Court to enlarge an accused person on bail if there were prima facie indications that be Was likely to be found guilty of some serious offence. Equally if the Court was satisfied that be was likely to tamper with evidence to be led on behalf of the prosecution to admit him to bail would also be inadvisable. In so far as the case before me is concerned, I observe that the case against the two respondents is only in the investigation stages which I understand from the learned Public Prosecutor are not yet complete. In requesting me to cancel the bail bond of the two respondents he alleges that from the preliminary enquiries it is evident that the two respondents are prima facie responsible for black‑marketing a very large amount of sugar and that they are likely to be found guilty of this serious offence. However that may be, I cannot feel entirely convinced .of the arguments adduced before me. It has been alleged that the case against the respondents started with a report lodged to the Political Agent, Quetta‑Pishin by the Bazar Fund Muharrir, Pishin in which he stated that respondents had paid certain octroi on a large quantity of sugar in their capacity as handling agents but that the sugar had not in fact been imported within the limits of Pishin Bazar. It therefore followed, so the Public Prosecutor alleged, that since respondents were unable to account for this sugar 'it must have been black‑marketed. On the other hand, learned counsel for the respondents pointed out that there were many other areas in the Quetta‑Pishin District in which the respondents were, responsible for distributing sugar and that the sugar did not necessarily have to pass through Pishin. I am, however, not concerned with allegations either for or against the respondents. On the basis of what has been argued before me, I would not, at this stage, presume, since investigations are not complete, that the respondent have committed the offence. That is a matter to be decided on its merits by the trial Court ulti mately. As for the allegation that the respondents are using their influence to tamper with the prosecution case, no affidavit to this effect has been filed with the application. While this may not be necessary, I have listened carefully to the arguments by the learned Public Prosecutor who claims that in fact the respondents are attempting to influence certain witnesses who are likely to be called for the prosecution. Again I cannot entirely accept this argument for it has been held on other occasions that is the duty of the Court to see that the Crown does not get a free hand and the accused are locked up or hampered in their defence simply on the ground that it is alleged or feared that they will tamper With the evidence; they Court should not cancel bail unless it is satisfied that they will tamper with the evidence. While these allegations have been made I cannot feel entirely satisfied that the respondents will tamper or have tampered with the evidence. It is, in my view, insufficient merely for the learned Public Prosecutor to make these allegations in arguments before me without being able to substantiate them either by an affidavit or by some other means which would be sufficient to convince me of the likelihood of the respondents so tampering with the evidence: The only argument adduced was that the respondents had been in the presence of certain local shopkeepers who are likely to be called as witnesses for the prosecution. Ulterior motives from this fact can hardly be ascribed to the respondents since they are local inhabitants of Pishin and must naturally in their dealings be in close contact with those shopkeepers who are their sub‑agents. I now come to the question of the propriety or otherwise of the learned Sessions judge in granting bail under section 498, Criminal Procedure Code, and the manner in which he granted bail. The Public Prosecutor alleges that the application for the bail was 'made during Court hours and that a report was called for from the City Inspector of Police. This report is on the file and, the City Inspector opposed the bail on the ground that since investigations were incomplete and that case was of serious nature respondents should not be released on bail until completion of the enquiries. It is alleged that the learned Sessions judge then passed his order releasing the respondents on bail without affording the Public Prosecutor an opportunity to appear to oppose the bail. It is nowhere laid down as a mandatory provision of the law that a Court when considering and application for bail is obliged to give opportunity to the Public Prosecutor to appear on behalf of the Crown to oppose bail. It is, however, an accepted principle that in applications for bail, particularly those of an important nature in which the Crown is prosecuting, an officer representing the Crown should be given an opportunity to attend.' In this particular case I am inclined to think that sufficient opportunity was not given. It has been 'stated before me that the Public Prosecutor was, on the date in question, not present in Quetta. This, however, is no argu ment, for one of his subordinate officers could have attended the. Court to oppose bail, 'the fact that opportunity war not so given is not, however, an error which would vitiate the proceedings or which would attract my powers to the extent of setting aside the order releasing the respondents on bail since I have now given an opportunity to the Public Prosecutor to appear and have heard his arguments in support of the petition now before me. As to the allegation that the learned Sessions judge has failed to exercise his discretion judiciously in this case, for the reasons I have stated above I do not consider there are any grounds for setting aside his order. It, therefore, follows that I consider he has applied his mind to the case and for the reasons stated he decided to release the respondents on bail. The plea on behalf of the Crown is only for the re‑arrest of the respondents until such time as the investigations are com plete after which the Public Prosecutor urges that they would not oppose bail. But whether for a limited period or for the full period of both the investigation and trial, if and when it takes place, I can see no ground to set aside the order already passed. I, therefore, do not consider that my powers under section 561 (A), Criminal Procedure Code, are attracted in this case. Accordingly I decline to interfere with the order passed. The application is, therefore, rejected. A. H. Application rejected.