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(a) Criminal Procedure Code (V of 1898)-- Ss. 497, 498 & 190(3)-Penal Code (XLV of 1860), Ss. 302/307/149

& 148 Bail-Fresh grounds for re-opening of bail matter-Challan case-Plea that challan had not been filed in trial Court but was still with Magistrate, held, could hardly furnish a fresh ground for reopening bail matter already disposed of-Interval of ten days between disposal of first petition for bail and filing of second, held further, could not be said to amount to delay in trial of , as being fresh grounds for re-opening bail matter-No proper or fresh ground, therefore, existed for making or entertaining second bail petition, Supreme Court converted petition into appeal and set aside bail granted.

The challan in a case triable by a Court of Session is submitted by the police to the Magistrate who under section 190(3), Cr. P. C. has to send the case to the Court of Session without recording any evidence. The challan is not to be submitted directly to the Court of Session. I hat being the legal position, the plea that the challan had not been filed in the trial Court but is still with the Magistrate could hardly furnish a 'fresh ground for re-opening of the bail matter disposed of. Nor could the interval of ten days between the disposal of the first petition and the filing of the second, be said to amount to delay in the trial of the case.

(b) Criminal Procedure Code (V of 1898)

---- Ss. 497 & 498--Bail-Practice and procedure-Bail petition should be placed before same Judge who had dealt with earlier petition-Withdrawing a petition from before one Judge and then making a fresh petition soon thereafter so that same be dealt with by another Judge disapproved by Supreme Court.-[Practice and procedure]. [p. 342]B

Kh. M. Yousaf Saraf, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate-on-Record (absent) for Petitioner.

Raja M. Akram, Advocate Supreme Court for Respondents Nos. 1 to 7.

K. E. Bhatti, Advocate Supreme Court for the State.

Date of hearing : 6th May, 1984.

M. S. H. QURAISHI, J.-The petitioner, who is the complainant in the case, is aggrieved by the order of the Lahore High Court, Rawalpindi Bench, dated 15-2-1984 granting bail to respondents 1 to 7 who alongwith others are accused in a case under sections 302/307/149 and 148, P.P.C. of P.S. Chakwal, District Jhelum. The accused including the respondents had first moved the High Court through Criminal Miscellaneous No. 430/13 of 1983 for grant of bail but on the statement made by the counsel appearing for the State that the challan had since been filed in the trial Court, the accused's counsel did not press the petition stating that "if the bearing of the case is delayed he would make a fresh petition for grant of bail". The learned Judge (Muhammad Ilyas, J.), thereupon, disposed of the petition on 4-2-1984 as having not been pressed. The accused, however, moved another petition (Criminal Miscellaneous No 51/B of 1984) on 14-2-1984. The petition was put up on 15-2-1984 before another learned Judge of the High Court (Muhammad Munir Khan, J.) who felt satisfied in entertaining the same for the reason that the challan had actually not been filed before the trial Court as had been stated on the previous occasion by the State counsel but the same was still with the Magistrate who was to send it to the trial Court. He, thereupon, decided the case of the accused on merits and granted bail to the seven respondents by the impugned order.

2. Since Mr. Raja M. Akram, A.S.C. is present on behalf of respondents 1 to 7, we have heard both sides. The challan in a case triable by a Court of Session is submitted by the police to the Magistrate who under section 190(3), Cr. P. C. has to send the case to the Court of Session without recording any evidence. The challan is not to be submitted directly to the Court of Session. That being the legal position, the plea that the challan had not been filed in the trial Court but is still with the Magistrate could hardly furnish a fresh ground for re-opening of the bail matter disposed of on 4-2-1984. Nor could the interval of ten days between the disposal of the first petition and the filing of the second, be said to amount to delay in the trial of the case. Normally a bail petition should be placed before the same Judge who had dealt with the earlier petition. We are told that the learned Judge who had dealt with the earlier petition had returned to Lahore. Even so, the petition could have been sent to Lahore for bearing by the sum learned Judge. The practice of withdrawing a petition from before one Judge and then making a fresh petition soon thereafter so that the same be dealt with by another Judge cannot be approved. We are satisfied that no proper or fresh ground existed for making or entertaining the second bail petition.

We, therefore, convert this petition into appeal and allow it. The impugned order granting bail to respondents 1 to 7 is set aside.

M. Z, M. Appeal allowed.

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