Find a Lawyer

Criminal Miscellaneous No.1228‑B of 1984, decided on 25th November, 1984.

‑‑‑S. 497(1)‑‑Penal Code (XLV of 1860), 5.165‑A‑‑Offence not .falling within prohibitory clause of S.497(1), Cr.P.C.‑‑Accused sent to judicial lock‑up following completion of investigation and no further recovery was to be effected‑‑Court disallowing bail to accused on ground that offence was to be viewed seriously so that public itself should restrain from offering bribe money to public servant‑‑Case of accused, fell under first part of S.497(1), Cr.P.C. which gave discretion to Court in matter of granting bail‑‑Court, disallowing bail to accused, held, did not exercise its discretion upon sound judicial principles in circum stances‑‑Accused was, therefore, entitled to bail‑‑Bail granted.

Abdul Rashid v. The State 1969 S C M R 693; Ijaz Akhtar v. The State 1978 S C M R 64; Hay Wali Muhammad v. The State 1968 P Cr. L J 192 and Meraj Din v. The State 1983 P Cr. L J 91 ref.

Athar Rehman Khan for Petitioner.

A Warabandi case of Wali Muhammad father of the petitioner was pending before the Sub‑Divisional Officer Irrigation Department. The petitioner is alleged to have offered a sum of Rs.2,000 as bribe to the said S.D.O. for showing favour to his father in the Warabandi case. The S.D.O. refused to accept the same and reported the matter to the police who arrested the petitioner and took into possession the currency notes.

2. The petitioner applied for bail to the learned Special Judge, Multan but his application was dismissed on 30‑10‑1984. The operative part of the order reads as under:

"No doubt, the offence is not punishable with death or with imprisonment for life or with imprisonment upto ten years, but this Court is of the opinion that the case is not fit for the grant of bail. The reason being that it is to be viewed seriously so that the public itself shall restrain from offering bribe money to the public servants."

3. Bail is claimed on the ground that the offence under section 165‑A, P.P.C. is punishable with three years' R. I. only and does not fall within the prohibitory clause of section 497(1), Cr.P.C. and further that the challan has not been submitted in the Court as yet despite the fact that the case was registered on 30‑8‑1984 and the alleged recovery had been effected on the same day. He has cited a number of precedents in support of his contention that unless there are exceptional circumstances bail should ordinarily be granted to the persons accused of offences not falling within the prohibitory clause of section 497(1), Cr.P.C. In Abdul Rashid v. The State 1969 S C M R 693 the Supreme Court observed "that section 497, Cr.P.C. gives a discretion to the Court in the matter of granting bail, but this discretion, like all other judicial discretion has to be exercised on sound judicial principles. In the said case a basic democrat was charged with having allegedly accepted a bribe of Rs.200 for assisting the complainant in getting back his wife. He was refused bail by the High Court on the ground that since he was a member of the Basic Democracy his enlargement on bail would not be proper in a case in which the tainted money had been recovered by the Magistrate supervising the trap. The Supreme Court declared the order of the High Court as ex facie arbitrary based upon irrelevant considerations and expressed the opinion that upon the grounds mentioned in the order of the High Court it ‑could not be said that the High Court had exercised its discretion under section 497, Cr. P. C. upon sound judicial principles and in consequence confirmed the ad interim bail granted to the accused Learned counsel has further relied upon Ijaz Akhtar v. The State 1978 S C M R 64, Haji Wali Muhammad v. The State 1968 P Cr. L J 192 and Meraj Din v. The State 1983 P Cr. L J 91. In Ijaz Akhtar v. The State (Supra), it was observed by the Supreme Court that the fact of amount allegedly embezzled by the accused being large was by itself no ground for refusing bail. In Haji Wali Muhammad v. The State (Supra) the Supreme Court allowed bail to an accused not involved in an offence falling within the prohibitory clause of section 497(1), Cr.P.C. It was a gold smuggling case and the lower Court had declined bail on general grounds, e.g., "the anti‑State and anti‑social activities alleged", and "the fact that smuggling was a heinous offence which was gaining acceleration and which needed to be checked with vigilance and firmness". The Supreme Court did not approve of these grounds and observed that the general ground of seriousness of menace of smuggling etc., should not have been allowed to prevail against the accused not charged with the offence falling within the prohibitory clause of section 497(1), Cr.P.C.

4. The offence with which the petitioner is charged is not punishable with death, imprisonment for life or 10 years' R.I. and as such does not fall within the prohibitory clause of section 497(1), Cr.P.C. The case of the petitioner falls within the first part of section 497, Cr.P.C. which gives a discretion to the Court in the matter of granting bail.

5.I have considered the grounds which prevailed with the learned Special Judge in refusing to grant bail to the petitioner. I do not think that the learned Special Judge has exercised his discretion upon sound judicial principles.

6. The petitioner has been sent to the judicial lock‑up following the completion of investigation and no further recovery is to be effected from him and the offence being not falling within the prohibitory clause of section 497(1), Cr. P. C., I consider the petitioner entitled to bail and order accordingly. He shall be released provided he furnishes surety bonds in the sum of Rs.10,000 with two sureties in the like amount to the satisfaction of A.C. Vehari.

M. Z. M. Bail granted

Find a Lawyer Near You

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