AN ANALYSIS
OF EXERCISES OF JURISDICTION IN DECIDING THE BAIL APPLICATIONS.
By:
FAIZ JALBANI
Advocate
We remain in the state of disposing the things of!
Ah, perfidity the effect of change!
No feeling of rest ensuing to think through the things!
Judgments melted into decisions; the losers of spirits!
Wao! Compulsions being named "Norms"!
The habit of taking the things in routine way
subjects the situations to be stuck to inertia.
Obviously, inertia means the status quo. The
status quo is nothing but an anti progression element, though, one may take and
apply it upon any aspect or field of life.
No doubt the process of thinking is painful; therefore,
we always prefer to choose trodden paths. The trodden paths never gift us
something new to be employed in the process of progression.
This habit of remaining under the state of
status quo and rushing over trodden paths keeps us far from picking-up the
disconnections in the already so-called connected connections.
I venture to rebel!
I get to take the situation of status quo
scratched off from within; 1 tread on and on the untrodden,
the new, without referring to any scapegoat of "norms"; just to
unearth the disconnections in the provisions of the law so-called connected.
At the very outset, it necessitates here to
refer the Section 4 of the Code of Criminal Procedure 1898, which provides
definitions of some words employed in the different provisions of the Code of
Criminal Procedure 1898. The clause (b) of the said section provides that bailable offence means an offence shown as bailable in the schedule II, or which is made bailable by other law for the time being in force; and non-bailable offence means any other offence. The clause (f) of
the same section provides that cognizable offence means an offence for, and
cognizable case means a case in which a police officer, may, in accordance with
the schedule-II or under any law for the time being in force, arrest without
warrant. Likewise the clause (n) of the said section provides that
non-cognizable offence means an offence for, and non-cognizable case in which a
police officer may not arrest without warrant.
The description of the terms as
afore-narrated gets it needful to provide some detail about the schedule II of
the Code of Criminal Procedure. The Schedule II being the part of enactment
provides a tabular statement of offences. The said Schedule consists of 8
columns. The column (1) describes the Sections of the Pakistan Penal Code,
column (2) provides about the offences under the sections mentioned in the column
(1); column (3) provides whether the offence mentioned in the column (2) is
cognizable or non-cognizable; column (4) provides about the issuance of process
to the accused, column (5) describes as to whether the offence mentioned in
column 1&2 is bailable or non-bailable;
column (6) provides whether the offence is compoundable or not compoundable;
the column (7) describes the punishment provides for the offence mentioned in
column 2 and column (8) of the Schedule II provides as to which Court has
jurisdiction to try the offence as mentioned in Paras
1 & 2.
Now in view of the above details it is easier
to comprehend what I am attempting to bring you round to my view regarding
sections 496, 497, 498 of Cr.P.C. The relevant parts
of the said three sections of the Code of Criminal Procedure are reproduced
herein below:--
Section
496.--When any person other
than a person accused of a non-bailable offence is
arrested or detained without warrant by an officer in charge of a
police-station, or appears or is brought before a Court, and is prepared at any
time while in the custody of such officer or at any stage of the proceedings
before such Court to give bail, such person shall be released on bail; Provided
that such officer or Court, if he or it thinks, may, instead of taking bail
from such person, discharge him on his executing a bond without sureties for
his appearance as hereinafter; Provided, further that nothing in this section
shall be deemed to affect the provisions of Section 107, sub-section (4), or Section
117, sub-section (3).
Section
497.--(1) When any person
accused o any non-bailable offence is arrested or
detained without warrant by an officer in charge of a police station, or
appears or is brought before a Court, he may be released on bail, but he shall
not be so released if there appear reasonable grounds for believing that he has
been guilty of an offence punishable with death or imprisonment for life or
imprisonment for ten years
..
Section
498.--The amount of every
bond executed under this Chapter shall be fixed with due regard too the circumstances of the case, and shall not be
excessive; and the High Court or Court of Sessions may, in any case, whether
there be an appeal on conviction or not, direct that any person be admitted to
bail, or that the bail required by the police officer or Magistrate be reduced.
After viewing the above quoted provisions
prudently, it become clear that Section 96 deals with the offences which are bailable.
The basic concept of bail is release of a
person from the custody of police and delivery into the hands of surety, who undertakes
to produce him in Court whenever required to do so. The law of bails occupies
an important place in the administration of Criminal Justice. In a primitive
society there was no conception of bail. Man's thought on the rights of bail
dates back to the 17th Century. The schools of thought came into existence that
a man has natural and inalienable rights and that it is the function of the
state to recognize those rights.
The law of bails is not a static law but is
growing all the time moulding itself according to
what seems expedient in the face of the exigencies of time.
The offences, for the purpose of bail have
been classified into bailable offences and non-bailable offences. Section 497 Cr.P.C
deals with the non-bailalbe offences while Section 498
Cr.P.C, as practice, deals with the bail before
arrest.
The opening Para of Section 497 Cr.P.C considers the exercise of jurisdiction, where the
offence is non-bailable and person is arrested or
detained without warrant i.e. the offence which is non-bailable
as well as cognizable. This is exact point wherefrom my anxiety starts.
The proposition is that under what provisions
of Cr.P.C the Court will exercise jurisdiction to
grant bail in the offences which are described as non-bailalbe
as well as non-cognizable in the schedule 11 of the Cr.P.C
i.e. following Sections of PPC;
Sections
of PPC
1. 506,
PPC 14. 227 PPC
2. 507
PPC 15. 222 PPC
3. 508
PPC 16. 194 PPC
4. 495
PPC 17. 195 PPC
5. 493
PPC 18. 188 PPC
6. 472
PPC 19. 121 PPC
7. 466
PPC 20. 122 PPC
8. 396
PPC 21. 123 PPC
9. 387
PPC 22. 124 PPC
10 388 PPC 23. 125
PPC
11 389 PPC 24. 126
PPC
12 355 PPC 25. 127
PPC
13. 295-A
PPC 26. 128 PPC
I have epitomized the proposition in the
preceding
At this stage, we may rush to Section 498 Cr.P.C. It becomes obvious from a bare perusal of the
second part of the Section 498 Cr.P.C., that the High
Court or Court of Session may, in any case, where there be an appeal on
conviction or not, direct that any person be admitted to bail, or that the bail
required by a police officer or Magistrate be reduced. The words "in any
case" employed in this section retain a magnitude of significance. This
part of the section confers open-ended power on the High Court and the Court of
Session in granting the bail, irrespective of any condition of the offence
being bailable or non-bailable
and cognizable or non-cognizable.
To the extent of offences which are
exclusively triable by a Court of Magistrate, still I
feel handicap to give an exact answer because in such situation, the question
haunts the mind i.e. Would a person apply for post-arrest bail under Section
498 Cr.P.C to the Court of Sessions or High Court,
even in the case triable by a Court of Magistrate?
(My reference is towards non-bailalbc as well as
non-cognizable offences).
I deliberately keep my
self from answering the above narrated question in either way and leave
the same on the Hon'ble Superior Courts to decide
what aptly suits the situation, facts propriety, expediency and law, keeping in
view the express provisions relating to bails in the Cr.P.C.
and their implications.
Another argument may be placed on different
lines in this pursuit. It must not be taken as volte-face on my part but it is
just a practical manifestation of volatile sense. This act of angling the
proposition is a driving force to make me maintain that when a person is
arrested in a case with the allegations of commission of offences, some of
which are non-bailable as well as non-cognizable, he
may be presumed to be arrested in the said non-cognizable offences. In this
given situation the Court may exercise its jurisdiction under Section 497 Cr.P.C to grant the bail in the offences which are non-bailable as well as non-cognizable. Here again this line of
argument seems just a boomerang because once again the question haunts the mind
that when a person is presumed to be validly arrested in a non-bailable as well as non-cognizable offence, Would it be
sufficient for a Court to assume the power to grant bail under Section 497 Cr.P.C or when a person is arrested in accordance with law,
Would a non-cognizable offence become advisable to be dealt with as cognizable?
Lastly, I confidently state here that neither
I surrender at this juncture nor I let the said proposition flat-line. Rather I
claim to be successful in angling and dilating upon the subject of my article
because, surely, this article is claimed to make quite a stir in the minds who are addicted to think through the legal proposition stumbled
upon!!!