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Miscellaneous Application No. 259 of 1956, decided on 7^th December 1956.

S. 497 (3) ---Granting bail in cases of non-bailable offences--Magistrate bound to record reasons in support of his order--Penal Code (XLV of 1860), S. 326.

Under subsection (3) of section 497, while enlarging on bail a person accused of a non-bailable offence, it is incumbent on the trial Magistrate to record his reasons in writing in support of his order.

Where, therefore, a person accused of an offence under section 326, P. P. C. was released on bail and the Magis trate failed to record his reasons for doing so:

Held, that the order of the Magistrate was in utter disregard of the mandatory provisions of law.

S. 526---Transfer of criminal cases-What constitutes a sufficient ground for.

The question as to what constitutes a sufficient ground for the transfer of a case, is not governed by any hard and fast rules. Every case has to depend on its own merits. But with special emphasis it must be said that it is not sufficient for a Court to conduct proceedings in a just and impartial manner. It is also absolutely necessary that the Court should give impression to the parties that justice will be done. What is of paramount importance in such cases is the feeling created in the mind of the parties that the proceedings will be conducted in a just and impartial manner. It is this basic psychological aspect of the matter which the Courts must always bear in mind while conducting the proceedings.

When a transfer application is made to a higher authority and at the same time an application is presented to the trial Court to stay the proceedings pending the decision of the transfer application and the Court thereafter passes an order unfavourable to, and against the interest of the opposite party without assigning any reason in utter disregard of the mandatory provisions of law, the action of the Court cannot fail to create genuine apprehension in the mind of the other party that he would not get a fair and impartial trial.

Muhammad Yunus Shah, Advocate for Petitioner.

Muhammad Ali, Additional Advocate-General for the State.

Abdul Qudus, Advocate for Respondents.

This is a petition for the transfer of a criminal case from the Court of M. J. R. Rahim, C. S. P., Sub-Divisional Magistrate, Bhakkar.

Eight persons charge-sheeted by the Police under sections 326/324/148, P. P. C. were placed for trial in the Court of Sub-divisional Magistrate. After recording the evidence of the Doctor only, the Magistrate bailed out all the accused, except Sikandara, on 18th May 1956. The next day (on 19th May 1956) the complainant, who is the peti tioner in the present case, submitted a transfer application to the A. D. M., who is also exercising the powers of a District Magistrate. The application was adjourned for hearing. On the 29th May, 1956, the petitioner presented an application to the trial Magistrate praying for the stay of the proceedings pending the final decision of the transfer application by the A. D. M. Thereafter on the 31st May 1956, the trial Magistrate released the remaining accused, Sikandra, also on bail. The petitioner now expresses appre hension that the trial Magistrate is prejudiced against him, and therefore, the case should be transferred from his Court.

In his comments on the transfer application the learned trial Magistrate has tried to justify his action by making a distinction between offences under sections 307 and 326, P. P. C. and also between a "spear" and other "sharp-edged weapons." He is further of the view that he is quite competent to release a person accused of an offence under section 326, P. P. C. on bail without giving any reasons.

The distinction drawn by the learned Magistrate between an offence under section 307, P. P. C., and an offence under section 326, P. P. C. is a distinction without any difference. He has completely overlooked the fact that as regards the punishment provided by the law for the two offences, they are at par with each other, inasmuch as both are punishable with transportation for life or in the alternative 10 years' R. I., etc. etc. He is mistaken, if he thinks that whereas he cannot release on bail a person charged with an offence under section 307, P. P. C. he can do so in case of an offence under section 326, P. P. C. The law does not warrant any such distinction.

Further whether the complainant was injured with a spear" or with any other "sharp-edged weapon" as is implied in the evidence of the Doctor, will make no difference, whatsoever, so far as the nature of the offence is concerned, because in both cases the offence would fall under section 326, P. P. C.

Had the learned Magistrate carefully read section 497, Criminal P. C. he would have felt no difficulty in appreciating the legal aspect of the question of bail. A person accused of an offence under section 326, P. P. C. can be released on; A bail, if at all, only under subsection (1) of section 497,, Criminal P. C. But the Magistrate is bound to give reasons.

This is clear from subsection (3), which provides that, "An officer or a Court releasing any person on bail under subsection (1) or subsection (2), shall record in writing his or its reasons for so doing". In the present case the learned trial Magistrate did not give any reason whatsoever, when he released on bail either 7 of the accused on 18^th May 1956, or the remaining 8th accused, Sikandara, on 31^st May 1956. Under the law it was incumbent on the trial Magistrate to have given some reasons in support of his order.

But the facts set out above did not alone create apprehension in the mind of the petitioner. The worst part of the matter is that the trial Magistrate released Sikandra also on bail, after a transfer application was made to the A. D. M. and another application was submitted to the Magistrate two days earlier to stay the proceedings till the final decision of the transfer application. Now normally perhaps, one might not have objected to the release of Sikandra on bail, but the manner in, and the time at, which the accused was released, certainly must create some apprehension in the mind of the opposite party.

The question as to what constitutes a sufficient ground for the transfer of a case is to my knowledge not governed by any hard and fast rules. Every case has to depend on its own merits. But it must be stated with some emphasis that it is not sufficient for a Court to conduct proceedings in a just and impartial manner. It is also absolutely necessary that the Court should give impression to the parties that justice will be done. What is of paramount importance in such cases is the feeling created in the mind of the parties that the proceedings will be conducted in a just and impartial manner. It is this basic psychological aspect of the matter which the Courts must always bear in mind while conducting the proceedings. When a transfer application is made to a higher authority and at the same time an application is presented to the trial Court to stay the proceedings pending the decision of the transfer application and the Court thereafter passes an order unfavourable to, and against the interests of, the opposite party without assigning any reason in utter disregard of the mandatory provisions of law, the action of the Court cannot fail to create genuine appre hension in the mind of the other party that he would not get a fair and impartial trial.

The action of the trial Court in the present case is certainly one which has made the petitioner apprehensive about the impartiality of the trial and as such transfer of the case would be perfectly justified.

For the reasons discussed above, I direct that the record of the case should be forwarded to the District Magis trate, Mianwali for entrusting it to some other competent Court for trial.

K. B. A. Orders announced.

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