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Criminal Miscellaneous No. 122 of 1963, decided on 9th December 1963.
S. 497‑Bail in non -bailable offence‑Court, except in case of persons mentioned in proviso, can enlarge accused on bail only in absence of prima facie case against him‑Inquiry Magistrate in committal proceedings framing charge of non‑bailable offence‑Not competent to enlarge accused on bail.
Jalaluddin Khan for Petitioner.
Respondents in person.
Sayyed Ghazanfar Ali Shah, A. A. G. for the State.
Date of hearing: 9th December 1963.
The order of the learned Inquiry Magistrate in committing the respondents to Court of Sessions on the charge of section 302/34, P. P. C. and at the same time enlarging them on bail without caring to state the reasons is quite inexplicable. The correct legal position is that in all non‑bailable offences which are punishable with death or transportation for life the Court is not left with any discretion of enlarging the accused on bail "if there appear reasonable grounds for believing that he has been guilty of" such offence. In other words, the Court can enlarge accused on bail other than those mentioned in the proviso to subsection (1) of section 497, Cr. P. C., when there is no prima facie case against the accused. Under the proviso to subsection (1), however, the Court has been given discretion to direct that (l) any person under the age of 16 years (2) or any woman and (3) or any sick or infirm person accused of any such offence be released on bail. To put it differently, only in cases enumerated in the proviso in non‑bailable offences the Court can allow bail to the accused charged with non‑bailable offences which art h punishable with death or transportation for life, and in other cases the Court is under statutory obligation of refusing bail if their appear reasonable grounds for believing that he has been guilty of any such offence.
2. In cases other than those enumerated in the proviso, the inquiry Court is rendered functus officio and therefore cannot allow bail to the accused as soon as it frames charges against the accused and commits him to the Court of Sessions for offences which are punishable with death or transportation for life. This being the correct legal position the learned inquiry Court was clearly in error in allowing the accused bail, and the learned Additional Sessions Judge wholly misconceived the legal position by stating that although the order is defective, "there is apparently no likelihood of the accused absconding or tampering with the prosecution evidence", and did not think it proper to cancel their bails.
3. Since the case of the respondents does not fall under the exception enumerated in the proviso, I cancel their bail bonds, and direct that they be taken into custody.
K. B. A. Order accordingly.
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