1973 P Cr (PLP)

2. On 1st August 1972 the aforesaid respondents filed a bail application which was heard and disposed of on 4th August 1972 by the trial Judge, admitting them to bail. The petitioner now seeks cancellation of the bail on the following grounds:-- (i) In the face of a transfer application and the order of this Court staying the proceedings the trial Judge had no jurisdiction, to entertain, hear and dispose of bail application. (ii) The aforesaid respondents have themselves contributed to the delay in trial by seeking re-investigation of the case and should not have therefore been allowed to gain an advantage on the ground of delay alone. (iii) The conduct of the respondents after their release on bail has been most objectionable and detrimental to a fair and speedy trial.

3. The learned counsel for the respondents has defended the order on the ground that by filing a transfer application by getting an adjournment on that account, or even by getting the, proceedings stayed the trial Court does not lose seisin of the case for passing ancillary, or emergent orders. Bail applications falling in the last category could, therefore, be dealt with as they do not form part of the proceedings in trial. Another is a ground of necessity advanced on the fact that it was the only Sessions Court functioning then in the district and in the light of observations made by this Court in Criminal Miscellaneous No. 1433/B of 1972 (Basher Ahmed v. State). Such an application had to be moved there before approaching this Court. Finally on this point it has been urged that even if there be a technical defect of jurisdiction, the power to admit an accused to bail being equally available to this Court, even in the first instance, and the reason for admitting them to bail being sound, no case for disturbing the order of bail is called for.

4. So far as the second ground is concerned it has been urged that even if the entire period of delay attributable to the respondents is deducted the result for the purposes of bail, is the same.

5. The factual correctness of the third ground has been vehemently denied at the bar.

6. I do not propose taking up or considering the third ground because involving certain questions of fact, as it does, and all of a period subsequent to the order of bail, it is only proper that these be brought to the notice of the Court seized of the case for initial determination after enquiry.

7. The second ground also is factually not entertainable for if the period taken at the instance of the respondents is excluded in its entirety the prescribed period is exceeded.

8. The proceedings of the trial Court had been stayed by the orders of this Court. Therefore, no proceedings could taken in the case concerning its trial. To that there can be taken no exception. The requirement of the law is absolute. However, matters which do not form part of the proceedings or trial or matters which are of an emergent nature and distinct from the trial can certainly be attended to and dealt with by the Court, notwithstanding the trial proceedings being stayed while an application under section 526, Cr. P. C. been filed and is pending. In the case of Hari Chand v. Emperor. (AI R 1931 Lah. 59) it was held that "subsection (8), section 5 does not mean that the trial Magistrate loses seisin of the case by reasons of his having granted adjourn ment or is rendered incapable of even disposing of miscellaneous applications for grant of copies, inspection of records etc." In the case of Haji Baqridi and others v. Emperor (A I R 1928 All. 268), it was observed that "when an accused person presents an application under section 526, Cr. P. C. it is the duty of the Court to stay ah judicial proceedings, that is, that the Court should not go on hearing the case which was before it. We cannot accept the contention that the jurisdiction of the Court ceases and the Court cannot pass any emergent order which by the law he is authorised to pass." Applying these principles to the case in hand I find that a bail application filed subsequently is not a part of the trial of the case, it is a power available to the Court under a different provision of the law and exists and can be exercised even independently of the capacity to try the offence in certain eventuality. Therefore by staying the proceedings in the case when the application for bail did not form a part of the proceedings the trial Judge was not divested of the power to deal with it. His order, therefore, is with jurisdiction.

9. Even otherwise, the proposition of law forming the basis of the admission of the respondents to bail being not disputed or seriously challenged this Court would have in the circumstances itself enforced it and on that score the respondents cannot be denied the relief which they have obtained from the trial Court.

10. In the circumstances, this petition for cancellation of bail is dismissed. This order will, however, not preclude the Court having jurisdiction in the matter from considering in accordance with law ground No. (iii) if and when taken up before it. Petition dismissed.