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Criminal Miscellaneous No. 21 of 1980, decided on 12th February 1980.

Criminal Procedure Code (V of 1898)‑---

---‑S. 497‑Bail, grant of‑Complainant remaining passive for about 27 days even after bringing alleged occurrence to notice of a senior Police Officer in‑ writing and keeping complaint for offences falling under Ss. 381 & 408 of Azad Penal Code in his own. pocket and taking no steps for getting his case registered‑After registration of case no substantial progress made by Police in investigation of case nor complainant serious about his case‑Bail allowed, in circum stances.

Ashfaque Hussain Kiani for Applicants.

Sardar Rafique Mahmood, Addl. A.‑G. for the State.

B. A. Farooqi for the Complainant.

This is a revision petition against the order, dated 9th February, 1980 of the District Criminal Court, Muzaffarabad, by which the interim bail granted to the petitioners was not confirmed and they were sent to the police custody while the case was under investigation of the police and the position is still the same. The ground for refusal of the bail was that no recovery of the stolen property could possibly be made from the accused if their detention in police custody was not allowed. The police case shows that the case was registered under section 381/447, P. C., but the District Criminal Court, while refusing bail to the petitioners, remarked that police is also essentially required to consider offences under sections 17 and 18 of the Islami Tazeerati Act, 1974, along with the offences under sec tion 381/447, P. C. already taken cognizance of by the Police.

I have heard the learned counsel for the parties and gone through the police file as well as the record maintained by the Court below. The impugned order shows that the learned Sessions Judge did not apply his mind to the case in disposing of the bail application. Section 18 of the Islami Tezeerati Act had provided punishment for an offence committed under section 17 of the same Act. Sections 17 and 18 of the Islami Tazeerati Act since stand repealed on the enforcement of Hadood Ordi nance, the observation of the Sessions Judge with regard to these sections in relation to theft could .no longer be considered by the investigating agency.

The police is investigating the case in relation to section 381/408, P. C. and has nothing to do with sections 17 and 18 of Islami Tazeerati Act. Allegedly dismantling of a big house and its removal thereof is involved in this case. The complaint was made to the D. S. P. on 3rd January, 1980 by the complainant which was endorsed to the S. H. O. Police Station Kahori on the same day. On this complaint a case under section 381/447. P. C. was registered by the police on 29th January, 1980. The perusal of 'Purcha Illat' No. 4 of 1980 of Police Station Kahori shows that it was on 29th January, 1980 that the complaint which was presented to D. S. P. on 3rd January, 1980 was brought before S. H. O. Kahori on 29th January. 1980 by the complainant himself. The written complaint itself lay with complainant himself for about 27 days and was not delivered to the S. H. O. for a legal action to be taken. This delay on the part of the complainant was not explained. After the registration of the case no substantial progress was made by the police in the investigation of the case. Nor the complainant is found to be serious about his case.

It was on 7th February, 1980 that an interim bail was granted to the accused petitioners by the District Criminal Court. Here it may be men tioned that this application was made during the investigation of the case which ought to have been taken cognizance by the Sessions Judge, alone under section 498, Cr. P. C. The District Qazi could only come to . and sit with the Sessions Judge when a case is brought before the District Criminal Court if competent to take cognizance, for hearing and disposal. The impugned order made by the. learned Sessions Judge reveals that it was made without a due consideration; of the circumstances of the case. A man who has claimed a big loss to his property remained passive for about 27 days even after bringing the alleged occurrence to the notice of a Senior Police Officer in writing which was returned to him for presentation to another police officer concerned so as to proceed in the matter according to law and the complaint was kept in his own pocket by the complainant anti did not like to proceed to move the registration of his case and its investi gation according to law for a considerable time i.e. too long a period: Presently the accused‑petitioners are in police custody since 9th February, 1980 and I feel that their further detention in custody will serve no useful purpose in law and as such it will not be proper to detain them any longer.

Therefore, I admit them to bail in the sum of Rs. 1,000 each with one surety each in the like amount to the satisfaction of any Magistrate Athmuqam or Muzaffarabad.

Petition allowed,

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