1970 P Cr (PLP)

Nisar Ahmad petitioner was named is the F. I. R. as one of the three accused in a case of murder. He was found innocent by the Investigating Officer who placed him in column No. 2 and also allowed him bail. After having examined some witnesses in the course of inquiry wherein the P. Ws. equally implicated the petitioner, the learned Magistrate cancelled the bail allowed to him. Having unsuccessfully approached, the learned Sessions Judge for his enlargement the petitioner has now approached this Court.

2. The sole contention raised by the learned counsel for the petitioner is that under subsection (5) of S. 497, Cr. P. C., the learned Inquiry Magistrate was not competent to cancel bail which had not been allowed by himself and as such the order passed by him was without jurisdiction. It appears that there are only a few authorities available on the point and the learned Advocate, General could lay hands only on Lakhamsi and another v. Emperor (A I R 1953 Sind 331) the authority relied upon by the learned counsel for the petitioner himself. In this authority, while interpreting the expression "a person released by itself", the learned Judge found that no order for cancellation of bail could be passed by the learned Magistrate unless he had himself passed the order of enlargement, This would obviously exclude a case from the ambit of this provision where bail has been allowed by the Inves tigating Officer. As such, there is no escape from the position that even though the order passed by the learned Magistrate might otherwise be capable of being justified on the basis of the evidence brought on the record before him yet the provision contained in subsection (5) of S. 497, Cr. P. C. would clearly amount to the ouster of his jurisdiction.

4. Having frankly conceded the above position, the learned Advocate‑General has, however, contended that in a case like this where direct ocular evidence is equally available against the petitioner as against his other co‑accused, the High Court should in exercise of its revisional jurisdiction refuse to allow him bail notwithstanding the legal infirmity from which the impugned order suffers.

5. In view of the fact that the deceased died of a single‑gun shot injury attributed to the petitioner's co‑accused Azim and further that he was found innocent by the Investigating Officer, I would not be inclined to commit him to custody once the order passed by the learned Magistrate cancelling his bail has been found to be without jurisdiction and more so when there are no allegations that he has abused his liberty. As a result of this discussion the original order of the petitioner's enlargement stands restored and consequently he shall be released from the jail if not required to be detained in any other case.

6. No observation made in this order may be construed as amounting to a finding so as to be construed to the prejudice of one party or the other. Petitioner released on bail.