ISHTIAQ AHMAD vs THE STATE

ORDER

' M. BILAL KHAN, J.---Petitioner Ishtiaq Ahmad son of Mukhtar Ahmed seeks his post-arrest bail in case bearing F.I.R. No,381 of 2003 dated 12-8-2003 registered under section 337-F(iii), 337-L(2) and 379/34, P.P.C. With Police Station Phalia District Mandi Bahaud Din, at the instance of Mukhtar Ahmad son of Nadir Khan.

2. The allegation as contained in the F.I.R. Is that the petitioner along with his co-accused who were variously armed with Dandas assaulted the complainant party as a result of which the complainant received injuries. The injuries attributed to the petitioner were allegedly received on the wrist of the complainant. Similarly according to the F.I.R. Gulfam Ahmad and Saifullah caused injuries to the complainant as also to the P.Ws. Mentioned in the F.I.R. The motive behind the occurrence was stated to be an altercation which took place between the parties two/three days ago.

3. Petitioner applied for his post-arrest bail which was dismissed by the learned Additional Sessions Judge, Mandi Bahaud Din vide his order dated 1-10-2003. Hence this petition.

4. In support of his plea for post-arrest bail the learned counsel for the petitioner submits that section 379, P.P.C. Has been deleted whereas the remaining sections i.e, 337-F(ii) and 337-L(2), P.P.C. Are bailable, as the said sections entail maximum punishment of three years; that the trial has not commenced and that since the offences with which the petitioner is charged, do not attract the prohibitory clause of section 497(1), Cr.P.C. And he did not act in an unusual manner according to the F.I.R. Itself, therefore, the petitioner is entitled to the concession of bail.

5. Mr. Suhail Tariq Advocate learned State counsel opposed the grant of bail on the plea that the challan has been submitted in the Court and trial is likely to commence at any time, therefore, the petitioner is not entitled to the concession of bail.

6. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties.

7. The offences charged with do not attract the prohibitory clause of section 497, Cr.P.C. Although the challan has been submitted in Court yet the trial has not commenced. The petitioner is in custody since 18-8-2003 and no more required for the purpose of investigation. It is now an established legal position that mere submission of challan or even the commencement of trial would not prevent the Court from granting bail to a petitioner who otherwise is entitled to the same on merits. The petitioner cannot be detained as a measure of punishment.

8. Consequently this petition is allowed and the petitioner is admitted to bail provided he furnished bail bond in the sum of Rs,30,000 with one surety in the like amount to the satisfaction of the learned trial Court.