Find a Lawyer

Miscellaneous Application No. 16 of 1954 decided on 28th January 1955.

-Cancellation, application for-Rejected by Additional Sessions Judge-Application repeated before Sessions Judge who cancelled bail without mentioning reasons-Order of cancellation, held, grossly improper-Criminal Procedure Code (V of 1898), S. 498.

An application made before an Additional Sessions judge for cancellation of bail granted by the committing Magistrate in a case under section 302 P. P. C., was rejected and similar application was after a few days made before the Sessions Judge who accepting the same cancelled the bail without mentioning reasons, and sent the accused to custody.

Held, that the Sessions judge's order without giving the reasons for the cancellation of the bail and without mention ing in his order that he had taken into consideration the orders of the Committing Magistrate as well as those of the Addi tional Sessions judge was grossly irregular if not illegal.

G. S. Gideon, for Petitioner.

Sayed Ghazanfar Ali shah, for the State.

-Saifullah Khan, alias Saifal Khan, aged about 60 years, son of Fazal Khan, of Thal, was challaned to the Court of a Magistrate in Hangu, on a charge of murdering one Janat Khan, on 6th July 1954. The learned enquiring Magistrate released him on, bail in a sum of Rs. 10,000, with five sureties on 12th October 1954. He was committed to the Court of Session to stand his trial under section 302/34 P. P. C., on 26th October 1954.

An application was moved in the Court of Session for the cancellation of this bail, which was heard by Kazi Mohtadullah Khan Additional Sessions judge on 26th Novem ber 1954. He rejected it on the ground that there were no good reasons to cancel the bail. Subsequently another applica tion was made in the Court of Session, for the same purpose, which was accepted by Khan Habibullah Khan Sessions judge on 17th December 1954, who without making any reference to the order of Kazi Mohtadullah Khan cancelled the bail, and remanded Saifal Khan to custody pending the trial.

The accused has now come up to this Court under section 498 Cr. P. C., praying that he may be released on bail.

If in a certain Division there are more than one Sessions Judge working, then all those Sessions Judges, so far as the powers under the Cr. P. C., are concerned, have got equal and concurrent jurisdiction. If one of those Sessions Judges exercises a jurisdiction in a certain way, then the other Sessions Judge of the same Division should be very slow to exercise the same jurisdiction in some other way, and if he does so, then justice, fair-play and good, conscience require him to give some very good reasons for doing the same. Kazi Mohtadullah Khan and Khan Habibullah Khan both being the Sessions judges m the same Division, had the jurisdiction to release a certain accused on bail or to refuse to cancel the bail of a certain accused, who had been released on bail by a subordinate Court, If Kazi Mohtadullah Khan had exercised the jurisdiction and had refused to cancel the bail, then Khan Habibullah Khan should have respected that order, and if he considered that the circumstances existed, which required him to take action in the matter, the should have mentioned those circumstances in his order, and also the fact that he had taken into consideration the previous order passed by his learned colleague. Habibullah Khan's order without giving the reasons for the cancellation of the hail and without mentioning in his order that he had taken into consideration the orders of the learned Committing Magistrate as well as those of Kazi Mohtadullah Khan, was clearly, it not illegal at least grossly irregular.

I have gone through the facts of the case very exhaus tively. The only charge which has been brought against the accused is that he caught hold of the deceased, while another person, who is absconding, killed him. Under the circumstance the learned Committing Magistrate, who had conducted the enquiry, came to the conclusion- that the accused was entitled to be released on bail. The case was then committed to the Court of Session, and Kazi Mohtadullah Khan did not see any reason to cancel the bail. No fresh material was placed upon the record, which should have entitled Khan Habibullah Khan .to cancel the bail.

I am consequently of the opinion that Khan Habibullah Khan's order is incorrect, and should be set aside. I accept this application and order that the accused be released on bail, on furnishing security in a sum of Rs. 10,000 with five sureties, to the satisfaction of the committing Magistrate.

A. .H. Application accepted.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.