P L D 1972 Supreme Court 74 (PLP)

Kamal Mustafa Bokhari, Asstt. A.-G. Punjab (Kh. Shaukat Ali, Advocate Supreme Court with him) instructed by Ijaz All, Advocate-on-Record for the State. Date of hearing : 14th December 1971. SAJJAD AHMAD, J.-The question raised in this appeal is whether the provisions of section 496, Cr. P. C., which provide that a person accused of a bailable offence, shall be allowed bail by the police or the Court when he is arrested or detained by the former or appears or is brought before the latter, are available to a person, in respect of whom the police takes preventive action under section 107/ 151, Cr. P. C. In the present case, the question has arisen in the following circumstances. The appellant was arrested by the police, Old Anarkali. Lahore, on the 25th of May 1967, under section 107/151, Cr. P. C. He offered to produce surety bonds for his release on bail, which the respondent (Malik Khair Din), who was the S. H. O. of the aforesaid police station, refused to accept, on the ground that he did not have the powers under the law to give him that relief. The appellant was produced before the Magistrate on the following day and was released on furnish ing a security bond pending the inquiry against him. The appellant did not leave the matter there, and on the 3rd of June 1967 filed a complaint in the Court of the Additional District Magistrate, Lahore, against the respondent under sec tion 220/342/500, P. P. C., on the allegation that failure on the part of the respondent to release him on bail amounted to his illegal confinement. The complaint was dismissed. The appellant then filed a revision petition in the High Court, which was dismissed by a learned Single Judge, who held that the, respondent was right in refusing to allow the bail to the appellant, as he had no powers to do so under the law. Section 496, Cr. P. C. reads as follows :

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496. When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer incharge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such Court, to give bail, such person shall be released on bail; Provided that such officer or Court, if he or it thinks fit, may, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided. [Provided further, that nothing in this section shall be deemed to affect the provisions of section 107, subsection (4), or section 117, subsection (3).]" A plain reading of this section makes it clear that it deals only with the grant of bail as a matter of right to persons who are accused of bailable offences. A person against whom preventive action is taken under section 107/151, Cr. P. C. is not accused of any offence bailable or non-bailable. He has not committed an offence although he may be designing to commit one, which would cause a breach of peace or disturbance of public tranquility. He has not yet even reached the stage of an attempt to commit an offence. In fact, he is arrested by the police under section 151, Cr. P. C. when it gets the knowledge of his design to commit a cognisable offence in order to prevent him from committing that offence. The question as to the status of a person against whom such a preventive action is taken came up for examination by this Court in the case of Ghulam Qadir v. Mistri Fazal Din (PLD 1962SC331), wherein it was observed:-- "it is thus obvious that a person against whom action taken by the Court in advance of the commission of an apprehended crime, cannot fall within the expression 'person accused of an offence'." The Code of Criminal Procedure has taken care of providing a specific procedure for dealing with cases of preventive action under section 107/109/110 of the Code, including the matter of interim release and ultimate discharge under those sections. Proceedings under section 107 can be taken by the District Magistrate, Sub-Divisional Magistrate or a Magistrate of the First Class, when information is received that any person is likely to commit a breach of peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of peace or disturb the public tranquillity. The District Magistrate or only that Magistrate can initiate the action within the local limits of whose jurisdiction fall both the person informed against and the place where the breach of peace or disturbance is apprehended. Under section 112, the Magistrate, when he deems it necessary, can require a person to show cause why proceedings should not be taken against him under that section. When he decides to take action, he has to make an order in writing setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force and the number, character and class of sureties (if any) required. All these provisions clearly manifest the intention of the Legislature that the provisions of bail under section 496 are not available in action under section 107/151, Cr. P. C. This is further made clear in the proviso to section 496 already reproduced above, that nothing contained in that section shall be deemed to affect the provisions of section 117, subsection (3), which reads "117 (3). Pending the completion of the inquiry under subsection (1), the Magistrate. if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquillity or the commis sion of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person fn respect of whom the order under section 112 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the inquiry is concluded." This subsection contains a specific provision for dealing with interim release of person against whom inquiry is pending under section 107 after a show-cause notice has been served on him under section 112, and excludes altogether the applicability of section 496 to such cases. It is thus clear that the provisions of section 496, Cr. P. C. with regard to bail, have no application to action under section 107/151,Cr. P. C. In the result, this appeal stands dismissed. K. B. A. Appeal dismissed.