2020 P Cr (PLP)

RAJA SAJJAD AHMAD KHAN, J.

Above titled revision petition has been directed against the order passed by Additional District Court of Criminal Jurisdiction, Dhirkot on 13.12.2018, whereby accused-respondent No.1 has been granted pre-arrest bail.

2. Brief facts forming background of the instant revision petition are that a case in offences under sections 337, 147, 148, 149, A.P.C. bearing FIR No.110/2015 was registered against the accused respondent at Police Station, Hajira on the complaint of Mst. Zeenat Begum. It is alleged in the FIR that complainant is resident of Dhoonga Taitri-note, her husband went abroad for earning his livelihood. On 29.09.2015 at about 8-1/2 a.m. the accused Mohammad Mehboob, Mohammad Fiaz, Mohammad Niaz, Mohammad Ilyas and Sadaqat were cutting the trees from the land of her husband. She forbade them, upon which the accused armed with sticks became exacerbate and attacked upon her and her daughter. They beat her daughter Naseem Akhtar. Accused Ilyas inflicted injury at her head with stick while other accused inflicted injuries to the complainant at her back and other parts of the body. On hue and cry of the complainant, Mohib Ali and Mudassar Ali came at the spot and witnessed the occurrence.

3. After registration of the case, the accused respondent applied for pre-arrest bail before Additional District Court of Criminal Jurisdiction, Hajira which was allowed and later on confirmed vide impugned order dated 13.12.2018, hence this revision petition.

4. Mohammad Mehboob Awan, the learned Advocate for petitioner-complainant reiterated the grounds made in the petition and submitted that court below has committed grave error while allowing bail to the accused respondent because he is involved in committing the offence which was witnessed by inhabitants of locality but the learned Court below granted bail to him by ignoring the settled principle of law governing bail matters. He was confronted that under what law bail can be declined or recalled in bailable offence? he replied that principles of grant of bail before arrest and after arrest are quite different, therefore, concession of bail may be cancelled.

5. On the other hand, Ejaz Ahmad Khan, the learned counsel for the respondent submitted that trial Court rightly allowed bail before arrest to the respondent as he was not ascribed specific role in the occurrence. He defended the impugned order on all counts and finally prayed for dismissal of the revision petition.

6. I have heard the learned counsel for the parties and gone through the record of the case made available.

7. A perusal of the record reveals that challan has been submitted before the trial Court on 128.11.2015 in offences under sections 337A(i), 337-F(2), 147, 148, 149, A.P.C. against the accused respondent. Prima facie accused respondent is involved in bailable offence. It is settled law that grant of bail in bailable offence, whether after arrest or pre-arrest, is a right of an accused not a concession. It is useful to reproduce section 496, Cr.P.C. which deals with the bailable offences:- "

496. In what cases bail to be taken. When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in-charge 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." (Underlining is mine) It is also proper to reproduce here section 498 which deals with the bail before arrest:- "

498. Power to direct admission to bail or reduction of bail. The amount of every bond executed under this chapter shall be fixed with due regard to the circumstances of the case, and shall not be excessive; and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not direct that any person be admitted to bail, or that the bail required by a police-officer or Magistrate be reduced." (Underlining is mine)

8. The contention of learned counsel for petitioner is that, the expression used in section 498, Cr.P.C. "admitted to bail" is distinguishable from the words "shall be released on bail" occurring in section 496 has no substance as these two expressions are synonymous and appear to have been used interchangeable. Even otherwise words used in section 496 "appears", "court" and "shall be released on bail" are mandatory in nature and empowers a Court of Sessions/District Criminal Court" or High Court to grant pre-arrest bail to a person involved in bailable offence as envisaged in section 496, Cr.P.C.

9. It is further provided in section 496, Cr.P.C. that a Station House Officer or Court if thinks fit can release a person on his personal bond but unfortunately this Proviso has not been acted upon in letter and spirit and it is in my judicial notice that number of persons are detained in bailable offences, remanded by the Magistrates and even pre-arrest bail of such accused person is cancelled which is a serious violation of a mandatory provision of law. As the accused respondent is allegedly involved in the bailable offences, thus the impugned order was passed in right direction. No illegality or infirmity has been committed by the Court below, therefore, finding no force in this revision petition, it is hereby dismissed. SA/9/Sh.C. (AJ&K) Revision dismissed.