ESSA KHAN vs NAWAB KHAN and another
This consolidated order resolved a criminal revision petition filed by an accused challenging an order of the Additional Sessions Judge cancelling his release and ordering him taken into custody, and a criminal original petition filed by the complainant challenging the Station House Officer's (SHO) action of releasing the accused on personal bonds. The accused had been nominated in a murder case, absconded for over a year, and upon appearing was arrested and simultaneously released by the SHO on personal bonds based on an unverified duty certificate. The High Court considered whether the police had lawful authority to release a directly charged murder accused on personal bonds, and whether an Additional Sessions Judge possessed jurisdiction under Section 497(5) of the Code of Criminal Procedure 1898 to cancel bail granted by the police. The High Court held that the SHO acted without legal authority and with ulterior motives, rendering the release unlawful under Section 561-A Cr.P.C. Further, Section 497(5) Cr.P.C. does not empower a Sessions Court to cancel bail granted by police on personal bonds, as such administrative actions are only reviewable under the High Court's inherent or constitutional jurisdiction. Consequently, the Additional Sessions Judge's order was set aside as without jurisdiction, but the accused was ordered into custody because his release on personal bonds was quashed.
- Does a Station House Officer have legal authority to release an accused directly charged with murder on personal bonds based on an unverified certificate of duty?
- Can a Court of Session cancel bail under Section 497(5) of the Code of Criminal Procedure 1898 when the accused was released by the police on personal bonds?
- Which court possesses the jurisdiction to set aside an unlawful order of a police officer releasing an accused on personal bonds?
- Section 204, Code of Criminal Procedure 1898
- Section 87, Code of Criminal Procedure 1898
- Section 88, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 497(5), Code of Criminal Procedure 1898
My this order shall dispose of two connected matters, one Cr. Rev. No. 206/2005 filed by Essa Khan where he has challenged the order dated 13.12.2003 of learned Additional Sessions Judge-V at Peshawar, who has ordered that Essa Khan be taken into custody immediately, while the second matter is Cr.O.P. No. 106/2006 where Nawab Khan complainant seeks setting aside of action taken by Respondent No. 2 i.e. SHO P.S Badaber, who had released Essa Khan respondent but on personal bonds.
2. Short facts of the case are that Haider was killed and for his murder Essa Khan, Karamat, Mir Nawaz and Israil were charged. In due course of investigation and after proceedings were initiated against the charged accused under Section 204 Cr.P.C. read with Sections 87/88 Cr.P.C., Mir Nawaz and Karamat accused were arrested. However, Essa Khan accused was released by the police on personal bonds on 6.8.2004 by the SHO of Police Station concerned.
3. It appears from the record that although Essa Khan was directly charged in the FIR made on 26.6.2003 but because he was serving in the Police Department, his arrest was postponed until on 7.7.2003, it was recorded in the Police Diaries that Essa Khan is a driver and presently posted/serving with the Chief Minister's Squad and that Security Chief of the Chief Minister's Secretariat had issued a certificate that Essa Khan accused remained on duty on 26.6.2003 till 10.00 p.m.
4. However, this certificate was never presented by the accused Essa Khan to the police but was only sent. Again the Police remained unconcerned about arrest of Essa Khan until on 6.8.2004 when Essa Khan allegedly appeared before the police in the Police Station and was then and there formally arrested but simultaneously released on personal bonds.
5. Whether or not the SHO of the Police Station concerned had the legal right to release Essa Khan on personal bonds when he was directly charged in the FIR and when he remained an outlaw for nearing one and half year & above and when SHO had not recorded any confirmatory statement of any other official to verify the certificate allegedly issued by Security Incharge of the Chief Minister's Secretariat, speaks in volumes of ulterior motives on the part of the SHO who had acted in utter disregard of law. He but in the circumstances vests with no legal authority to release Essa Khan on his personal bonds. Therefore, while exercising jurisdiction under Section 561-A Cr.P.C., High Court is constrained to hold that the order of the SHO releasing Essa Khan on personal bonds, is not liable to be sustained and that personal bonds were wrongly taken.
6. Now coming to the revision petition filed by Essa Khan against order of learned Additional Sessions Judge whereby Essa Khan has now been taken into custody as if his bail stands cancelled, such order of the learned Additional Sessions Judge is also not in consonance with law.
7. Under Section 497 (5) Cr.P.C. a Court granting bail or the Court of Sessions or the High Court, can recall an order of grant of bail but where bail is granted by the police, that too on personal bonds, would not be amenable to jurisdiction under Section 497(5) Cr.P.C. but to the jurisdiction of the High court either exercising inherent jurisdiction or jurisdiction vested in it under the Constitution.
Two judgments have been relied upon by the learned Additional Sessions cancelling bail of Essa Khan petitioner which are 1994 P.Cr.L.J.- 1166 and 1996 P.Cr.L.J 1987. Both these judgments are not relevant to the facts of the case because in the judgment reported as 1994 P.Cr.L.J1166, AIR 1933 Sindh 331 (2) was referred wherein the facts were totally different i.e. where pre-arrest bail was declined to the accused and the same accused later on was released by police on personal bonds, was held to be an act amounting to as if SHO had revised the order of the Sessions Judge.# It was set at naught by the High Court but under its inherent jurisdiction under Section 561-A Cr.P.C.
Applying case law as well as statutory law as referred to above i.e. Section 497 (5) Cr.P.C., the Additional Sessions Judge was not vested with jurisdiction to cancel the bail. Such order dated 13.12.2005 is set aside as without jurisdiction. However, from today onwards, he shall be deemed to be in custody under the orders of this Court for the reason that his release by the SHO on personal bonds has been set aside and for the reason that he is directly charged for the crime of murder, therefore, on merits too he wag not entitled to grant of bail.
'Record of the case be sent back to the trial Court for proceeding from the stage it was left.
'Both the petitions are allowed in the above terms.