1974 P Cr (PLP)

Abdus Samad Hashmi for Respondents. This is an application for cancellation of bail of respondents No s. 1 to 7 granted by a Magistrate on the 17th of October, 1972. Out of these seven respondents, Alam Sher and Anwar are said .to have died after the filing of this petition. The petitioner, in the first place, moved the Sessions Judge, Layallpur, for the cancellation of the respondent's bail but failed. The learned Sessions Judge dismissed the application on 6th December 1972.

2. The learned counsel for the petitioner has argued that since one of the charges against the respondents is that of rape which entails a maximum penalty of transportation for life, the learned Magistrate had no jurisdiction to grant bail unless the case of any of the respondents was covered by the proviso to subsection (1) of section 497, Cr. P. C. The learned counsel has, in my opinion, stated the point too broadly. The Magistrate. would certainly have no jurisdiction to grant bail to the person accused of rape unless he was under age of 16 years or sick or infirm provided in the Magistrate's opinion there were reasonable grounds for believing that the accused person had been guilty of rape. From uncertified copy of the order of the Magistrate produced by the petitioner's counsel (who should) We in fact placed on record a certified copy, it if clear that the reason why the learned Magistrate granted bail was that the alleged abductee, while having her statement recorded under section 164, Cr. P. C. did not charge any of the respondents with the commission of the alleged offences. It is obvious that it did not appear to the Magistrate, in view of the statement of the alleged abductee referred to above, that there were reasonable grounds for believing that the respondents were guilty of the offences in question although he did not record this reason in so many wards. In my opinion, therefore, the learned Magistrate rightly exercised his direction in the matter of granting bail.

3. The learned counsel for the petitioner, however, complained that one very relevant and important fact was concealed by the respondents from the learned Magistrate, namely, the alleged abductee had also been produced before the High Court in pursuance of a writ issued under section 491, Cr. P. C. where she made clear allegations of abduction against all the respondents and also charged Yaqoob respondent with raping her. The learned counsel contends that for the reasons of suppression of a material fact alone, the learned Sessions Judge should have cancelled the bail granted to the respondents, it is true that from the order of the Magistrate it appears that the second statement of the alleged abductee was not brought to his notice. But the fact remains that both the statements were before the learned Sessions Judge when he considered the question of cancellation of bail. He observed that, since there were two completely contradictory statements, on record, it was not a fit case for cancellation of bail. This again amounts to holding that there did not appear reasonable grounds for believing the accused persons to be guilty of the charges against them within the meaning of section 497, Cr. P. C. although, again, the learned Sessions Judge did not, in so many words record this reason in his order dated 6‑12‑1972. Like the Magistrate, the Sessions Judge, too, in my opinion, rightly exercised his discretion. It must, however, be noted that the expression of opinion as to the existence of reasonable grounds for believing the accused to be guilty for the purpose of granting or refusing bail has no bearing on the actual determination of guilt.

4. In the circumstances of this case, the failure of the respondents to bring to the notice of the Magistrate of statement of the alleged abductee recorded by the High Court is not enough to warrant interference by the Court with the discretion exercised by the Courts below judiciously.

5. The application is accordingly rejected. Petition not allowed.