Abdul Rahim and Others vs State

The petitionersaccused, namely, Abdul Rahim, Bashir Ahmed, Mushtaq Ahmed and Mohd Javed through the medium of revision petition had

challenged the order dated 17111995 passed by the learned Sessions Judge, Udhampur whereby he had refused to grant bail to them in

anticipation of arrest. The bail was sought on the registration of the case under section 436 RFC arisen under FIR No. 58/95 of Police Station,

Mahore. While rejecting the said application, the learned Sessions Judge had observed that an offence falling under section 436 RPC was a special

offence triable by a Special judge and the question of grant of bail could only be considered under section 497B Cr. P.C. and not under section

497A Cr. P.C. A direction was given to the following effect:

It will be only after the arrest of the accused that this court as the court of Special Judge will see whether the facts constitute prima facie the

alleged offence and in that eventuality the appropriate orders will have to be made.

The learned Sr. AAG raised preliminary objection regarding the maintainability of the revision petition and Mr. Qureshi, the learned counsel for the

petitioner prayed that the revision petition may be treated as an application made under the provisions of section 497B. He also stated that he

would cause the appearance of the applicantsaccused and sought an opportunity The prayer was accepted and the revision petition was treated as

an application made under section 497B Cr. P.C.

The counsel appearing for the parties were heard at length.

The learned Sr. AAG has contended that no court except the Special Judge appointed under the Code of Criminal Procedure for the trial of

offences which are special offences under the Code has the power to entertain an application for bail. In support of his contention he cited the case

of State V/s M/s K.C. Vanaspati, 1979 JKLR 655. However, at the outset he conceded that the High Court has the inherent power to entertain

such an application, but the same is exercised rarely. That in the present case only the Special judge can properly appreciate the facts and this

Court cannot be made as a substituted forum. In order to understand the scope of this argument, a combined reading of section 497B Cr. P.C.

and section 498 Cr. P.C becomes necessary. The opening words of section 497B to the effect, ""notwithstanding anything contained in this Code

but subject to the provisions of section 498 Cr. P.C....."" suggest that the latter section controls the operation of the former. Subclause (2) of

section 498 Cr. P.C. prescribes that ""the High Court or court of Session may cause any person who has been admitted to bail under section (1) to

be arrested and may commit him to custody."" Section 259A Cr. P.C. prescribes Special procedure for the trial of cases relating to the offences

specified and an offence under section 436 RPC is included therein Section 259B Cr. P.C enjoins that the provisions of the Code of Cr. P.C in so

far they may be applicable and in so far they are not inconsistent with the provisions contained in section 259A shall apply to all matters connected

with and arising from or consequent upon a trial under section 259A. The legal position which clearly emerges is that the inherent power of the

High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of the Court

or otherwise to secure the ends of justice have not been eroded or maimed but explicitly kept intact. The argument that such power may be used

sparingly is an argument of despair.

The learned Sr. AAG has contended that applicantsaccused herein cannot derive any benefit out of the proviso contained in section 497B which

enables an accused to the grant of bail in case the investigation is not completed within two weeks. According to him, the term 'investigation' used

herein is referable to the custody of the accused. That investigation in a case starts only when an accused is taken into custody.

The specious argument of the learned counsel loses its significance when a reference is made to clause (h) of section 4 of the Code which states,

investigation"" includes all the proceedings under this Code for the collection of evidence, conducted by a police officer or by any person (other

than a magistrate) who is authorised by a magistrate in this behalf."" The concept of granting bail on the basis of custody has found its place in

subclause 3A of amended section 497 Cr. P.C. which mandates that if in any case triable by a magistrate, the trial of a person accused of a

nonbailable offence is not concluded within a period of 60 days from the first date fixed for taking evidence in the case, such person which, if he is

in custody during the whole of the said period, be released on bail to the satisfaction of the magistrate, unless for reasons to be recorded in writing,

the magistrate otherwise directs. The intention of the legislature or the purpose of the 'statute' as can be gathered from the joint reading of section

259A and section 173 Cr. P.C is that the trial of these special offences as far as possible should be completed within a period of two months. The

provision engrafted on section 173 Cr. P.C enshrines that the investigation into offences enumerated therein has to be completed within two weeks

and if the investigation is not so completed the Investigating Officer shall have to report the causes of delay to the District Superintendent of Police,

who has to issue necessary instructions for the completion of the investigation. Nowhere, it is provided that the investigation into these offences will

commence only when the accused is taken into custody. Some laud thinking is required on the rationale of section 497 subclause 3A which has a

bearing only with the trial of the case and by no stretch of imagination with its investigation. The provisions of this section cannot be viewed out of

the frame work of the statute. I will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid

undesirable consequences. The argument that applicantsaccused will found entitled to the benefit of the provision of section 497B only after

remaining in custody for two weeks is devoid of any legal force and as such does not hold good.

Now, adverting to the facts of the present case, it is found that the case was registered on 7795 and one of the accused, namely, Mohd Farooq

S/o Abdul Rashid Rather was taken into custody on 5111995. The Investigating Officer has never taken any direction from the District

Superintendent of Police after making a report for the causes of delay. The requirement of law as per terms of section 173 Cr. P.C were observed

in breach rather than in observance. The defence counsel has shown an affidavit purporting to be duly sown in by Mst. Roshni who is alleged to be

in occupation of the house in question on behalf of brother at the material time. She is shown to have exculpated the applicantsaccused. It is for the

trial judge to see the evidentiary value of this affidavit and the same cannot be made a part of this record. The trial judge without the examination of

any record has straightway ordered the arrest of the applicantsaccused. Rather he has imposed a condition that their application under section

497B will be considered only after they are taken into custody. Such an order was made without the basis of any record. The object of law is the

protection of human interests in all relations of life and the methods by which rules of decision are deduced must satisfy at once the requirements of

legal science and substantial justice.

Taking stock of all these facts and circumstances, the application of the applicants is accepted and to secure the ends of justice, they are admitted

to bail subject to furnishing bail bonds and personal bonds in the sum of Rs 4000/ each to the satisfaction of learned Special Judge, Udhampur.

The applicantsaccused shall join the investigation within two weeks time and thereafter the Investigating Agency shall produce the challan within the

prescribed statutory period.