BACHAL Versus THE STATE

ORDER

The petitioners are involved in a case under section 395/382, P. P. C. initiated on the First Information Report lodged by one Ali son of Dino Bozdar, who was the karao appointed on the land of Dr. Ghulam Hussain Shah, in Survey No. 145, Deh Daud Shah, Taluka Tando Allahyar, District Hyderabad. The owner of the land had filed certain proceedings against the petitioners, who are his haris on the land, as they were not delivering zamindari share of produce, and in these proceedings the Mukhtiarkar Tando Allahyar was appointed as the receiver of the land. The receiver in turn had appointed the first informant Ali as karao on 6-9-72 to look after the land. It was complained by the karao in the F. I. R. that about 5 p.m. on the 21st September 1972, the petitioners came armed with hatchets and lathis, and forcibly took away 70 maunds of cotton-pods worth Rs. 3,300 lying in the khara under his receivership.

2. The petitioners had, in the first instance, applied to the Sessions Judge, Hyderabad for anticipatory bail before arrest which request was rejected on 16th October 1971 in these words :---

"Heard Mr. Ismail and D. P. P. The accused ate alleged to have committed theft of cotton-pods from the khara in custody of karao appointed by the receiver. No case made out for anticipatory bail. Application rejected."

Thereafter, the petitioners approached this Court in Criminal Bail Application No. 484 of 1972 which Was also rejected with the following order on the 19th October 1972;

"Mr. Mohd. Usman Pirzada for applicants and Assistant Advocate-General for State.

The applicants are alleged to have committed theft of cotton-pods from the land of Zamipdar Dr. Ohulam Hussain Shah.

Names of applicants appear in F. I. R. This is not the stage for grant of anticipatory bail. There is thus no merit in this application and it is dismissed."

However, after all these requests for grant of bail were rejected, the petitioners then approached the Civil Judge and F. C. M., Tando Allahyar who granted bail to them by the order dated 26th October 1972 to the following effect :--

"I. have heard the learned Advocate for the accused and P. S. I for the State. Police papers have not been received in this case. It is alleged in the F. I. R. that the accused are harts of the land of which the produce is alleged to have been taken by them. The offence with which they are charged is not punishable with death or transportation for life. I, therefore, grant the bail to all the accused, for whom application is made, in the sum of Rs. 3,000 each and P. R. bond in the like amount."

3. An application for cancellation of the bail was moved before the learned Civil Judge and the F. C. M., Tando Allabyar, but he rejected it observing that he would not comment on the nature of the offence alleged to have been committed by the accused as it might prejudice any party, but since he had granted the bail which he was empowered to do, he would not cancel it.

4. The first informant Ali son of Dino then moved the Sessions Court for the cancellation of the bail, which application was allowed by the First Additional Sessions Judge, Hyderabad by the order dated 11th January 1973, with the result that the bail granted to the petitioners was cancelled and they were remanded to custody. It is in these circumstances that they have now moved the present bail application before this Court.

5. It was vehemently argued by the learned counsel for the petitioners that the learned Civil Judge and F. C. M., Tando Allahyar granted the request of the petitioners for bail in exercise of his powers under section 497, Cr. P. C. and the earlier orders passed by the Sessions Court and the High Court rejecting petitioners' request for anticipatory bail before arrest were neither binding nor relevant. It may be said that the learned Magistrate was quite aware of both the earlier orders as he was informed accordingly. It may also be stated at this stage that although the F. I. R. was registered for offence under section 382; P. P. C., but later on the police submitted final challan report before the Magistrate pointing out that the offence committed by the accused clearly fell under section 395, P. P. C. which it more serious.

6. No doubt offence of section 395 is not punishable with death or transportation, but it cannot also be said that bail must be granted to all undertrial prisoners involved in offences punish able with the lesser penalties. If that were so, the framers of the Code of Criminal Procedure would not have made distinction of bailable and non-bailable offences that are punishable in lesser degree than death or transportation for life. The facts of the present case are that the petitioners were aware that the Court of Law had appointed the Mukbtiarkar as the Receiver of the land, and crop was under his charge, which they are alleged to have taken away after fully arming themselves. The offence committed by the petitioners not only involves flagrant violation directed against the authority of the Court of law, but also serious one punishable under section 395, P. P. C. Indeed even the offence in the lesser degree under section 382, P. P. C. is equally serious in the circumstances of the case. The learned First Additional Sessions Judge, Hyderabad, has considered all the contentions raised before me in a well discussed order, and I agree with him that the learned Civil Judge and F. C. M., Tando Allahyar has not acted properly in this case.

7. I may however record two more contentions raised by the learned counsel for the petitioners. The first one was that on the: day when the High Court rejected the bail application, the petitioners were already under arrest, and they being not present before the High Court in connection with their request for antici patory bail before arrest, the application under section 498, C. P. C. had become infructuous and no order could be passed on the merits of the case. If is true that the petitioners had already been arrested and they were not present in the High Court, the learned counsel appearing on their behalf should have pointed out this fact that to the learned Judge hearing the case. The omission on his part to do so amounts to a deliberate attempt to take an advantage from the Court.

8. The second contention was that only four out of seven petitioners had applied for the grant of bail, and the order passed against them cannot be utilised against the non-applicants. It is true that only four petitioners had applied to this Court for grant of bail before arrest, but before the Sessions Court, Hyderabad, there were six. This argument cannot, however, be of any avail to those who had not earlier approached this Court or the Sessions Court as the prosecution case against them is not distinguishable.

9. For these reasons, I find no merit in this Bail Application. It is accordingly dismissed.

Petition dismissed.