IHSAN Versus THE STATE

san with three other petitioners herein, are accused in a murder case registered at Police Station Kunjah, District Gujrat, under FIR No. 46 dated 27-3 1987. Their bail application was pending in the Court of Additional Sessions Judge-I1. Learned Sessions Judge, Gujrat transferred it to his file and after hearing learned District Attorney for the State and Ch. Muhammad Aslam, Advocate, counsel for the petitioners, granted them bail on 16-9-1987. On 23-9 1987 complainant's counsel made a grievance to the Sessions Judge that the bail granting order had been passed without hearing him. At this, learned Sessions Judge issued notice to Ch. Muhammad Aslam, Advocate, and the District Attorney for the next day and "recalled and set aside" his order dated 16-9-1987 and sent petitioners' bail application to the Court of Additional Sessions Judge II for disposal with following observation:

"Contention of counsel of the complainant is upheld. Counsel for the complainant should have been heard. Hence the order dated 22-9-1987 about the bail applications of Ehsan, Sarwar, Hayat, Zafar and that of Shaukat is recalled and set aside. The bail petitions are hereby transferred to the successor of Mr. Zulfiqar Ali Khan learned ASJ II who is scheduled to take over on 1-10-1987."

Feeling aggrieved thereby the petitioners have filed instant revision challenging legality of the above-quoted order.

2. It is submitted that learned Sessions Judge was not legally competent to recall/cancel his order granting bail to the petitioners simply because it was passed without hearing the complainant's counsel. Elaborating the point he submitted that the complainant or his counsel cannot be heard as of right in a bail application therefore omission to hear him before deciding petitioners' bail application did not constitute an illegality or material irregularity making the order so passed as defective. The prosecution no doubt, is entitled to a notice under second proviso to section 497(1), Cr.P.C. before an order granting bail to the accused is passed and in this case also District Attorney representing the prosecution was present and was heard before the order dated 16-9-1987 was passed for releasing the petitioners. He concedes that a Court which grants bail to an accused can cancel the same but on the grounds judicially recognized e.g., where the accused abuses/misuses the concession of bail; where the bail order had been obtained fraudulently or by misrepresenting the facts; or where more evidence is subsequently collected furnishing reasonable grounds for believing that accused is guilty of committing a non-bailable offence or where bail granting order suffers from lack of jurisdiction etc. but in this case no such ground was either available or pressed into service by the complainant party, therefore, the impugned order being absolutely illegal merits to be struck down. Replying, learned counsel for the complainant/respondent submitted that the complainant's counsel is invariably heard by the Courts in criminal cases including bail applications and this practice is so consistently followed that it has attained the character of a legal right, therefore, a bail granting order passed without hearing the complainant's counsel would be treated as suffering from rule of natural justice. Next contended that a bail order is not judgment in the meaning of section 369, Cr.P.C., therefore, it can be competently reviewed, modified and reversed by the same Court, hence the impugned order is not open to exception. He, however somewhat conceded that the learned Sessions Judge should have given more reasons particularly touching merits of the case justifying recalling of his earlier order granting bail to the petitioners. He suggested that by setting aside the impugned order learned Sessions Judge should be asked for rewriting a detailed order.

3. I have carefully considered the contentions of the learned counsel for the parties.

4. There is no dispute that a Court which grants bail to an accused is empowered under subsection (5) of section 497, Cr.P.C., to cancel the same, of course, for reasons recognized in law. As far as the impugned order is concerned, learned Sessions Judge has withdrawn the bail granting order dated 16-9-1987 merely because the complainant's counsel was not heard before passing that order.

5. The question, therefore, is whether an order passed by a Court, releasing an accused on bail without hearing the complainant or his counsel would be defective in the eye of law? Needless to say that in police challan cases, the State and the accused are necessary parties. The Legislature in its wisdom under proviso second to section 497(1), Cr.P.C provided that the "Prosecution" shall be l given a notice before releasing an accused on bail but no such notice is provided for the complainant. A similar question arose before me in Criminal Miscellaneous No. 1935-B/87 when learned Additional Advocate-General raised an objection that without his instructions the complainant's counsel cannot address the Court for hearing a bail application of the accused and in that case 1 had observed as follows:

"In bail petition, however, the prosecution is entitled to a notice under section 497, Cr.P.C. This being a State case, learned Additional Advocate-General in response to the notice appeared on behalf of State. The complainant is not entitled to notice in this case under the law, therefore; he cannot address the Court as of right. He plays the second fiddle. Proceedings in bail petition are judicial in nature end a Court can call upon complainant's counsel for placing the facts before it in case it is considered proper and desirable in a particular case. It may be observed that where there is conflict between the public prosecutor and the complainant's counsel, the right of State would prevail. In this case, however, their interests do not clash. I would therefore hear complainant's learned counsel in the interest of justice and then decide the main petition for pre-arrest bail."

"Prosecution" is represented in police cases by a Public Prosecutor. In this case District Attorney, who acted as Public Prosecutor was present and was heard before the order dated 16-9-1987 was passed. It may be observed that complainant's counsel, if in attendance, can address the Court, of course, with permission of the Court. I am, therefore, of the view that omission to hear complainant's counsel in this case who was not present in Court on 16-9-1987 did not constitute a legal infirmity in the said order and the learned Sessions Judge could not therefore recall it by his subsequent order dated 24-9-1987. Consequently the impugned order is hereby set aside. However, it is observed that in case the complainant party feels aggrieved of the bail granting order-dated 16-9-1987 it can apply to the proper forum for cancellation of that order in accordance with law.

SA./1-54/L. Petition accepted.