NAZIR vs AMIR DIN AND ANOTHER

1. HAMOODUR RAHMAN, J.--This appeal, by special leave, is directed against an order of a learned Single Judge of the High Court of West Pakistan cancelling the bail granted to the appel--lant herein by the Sessions Judge of Lyallpur on the 18th of April 1964.

2. The sole ground upon which the cancellation was made is that "one of the recovery witnesses, namely, Choto, made a report to the police that Nazir respondent was threatening him if he deposed against him".

3. Leave was granted in this case to consider whether the dis--cretion to cancel bail had been exercised on correct principles and after a consideration of the relevant material on the record.

4. The appellant herein was arrested by the police on the 24th of February 1964, in the course of investigation of a first informa--tion report lodged by the first named respondent herein on the 6th of February 1964, alleging that 7 persons armed -with weapons had burgled his house on the night between the 5th and the 6th of February 1964. In this report no culprits were named but it was said that the culprits could be identified if seen, although the houses of the present appellant and the complainant adjoined each other and they had been known to each other for over 17 years.

5. On the basis of this first information report the appellant, his father and brother were taken into police custody on the 24th of February 1964, but only the appellant's father and brother were challaned under sections 395, 397, 458, 148 and 149 of the Penal Code and shown as arrested on the 25th of February 1964. They were however, bailed out by the Sessions Judge of Lyallpur on the 7th of March 1964, but the appellant was not put up before any Court and remained in illegal custody of the police from the 24th of February 1964.

6. A habeas corpus petition under section 491 of the Criminal Procedure Code was then moved on his behalf before the High Court of West Pakistan at Lahore but this petition was withdrawn on the 6th of March 1964, on the Station House Officer, Jaranwala, appearing and stating that he had neither arrested nor detained the appellant. Ultimately the appellant was formally charge-sheeted and shown as arrested in the said case from 15-3-64. He was granted bail by a Section 30 Magistrate at Lyallpur on the 24th of March 1964, and was released from Jail on the next day, i.e. 25-3-64.

7. Thereafter on the application of the complainant that bail was again cancelled on the 4th of April 1964, on the ground that the appellant was threatening the prosecution witnesses and asking them not to depose against him and his co-accused. The alleged threat was said, in a report filed by the complainant with the police, to have been held out on the 25th of March 1964, and it was said that the appellant had reached his village on the 24th of March 1964.

8. From this order the appellant went up to the Sessions Judge of Lyallpur, who granted him bail on the 18th of April 1964 holding that the story of the alleged threat was clearly false, as the appellant was not released from Jail until the 25th of March 1964. The contention of the prosecution that certain stolen properties worth about Rs. 200 had also been recovered at the instance of the appellant on the 16th of March 1964, was also doubted, as this fact was not reported to the Court even up to the time when the bail was cancelled by the Magistrate on the 4th of April 1964.

9. Subsequently on 6-5-64 the complainant again moved the Sessions Judge of Lyallpur for the cancellation of the bail on the ground that he was threatening the prosecution witnesses. In support of this application the affidavits of some 4 of the prosecu--tion witnesses were also produced at the hearing to establish the alleged threat. The recoveries said to have been made at the pointing out of the appellant and evidence of an extra judicial confession were also relied upon for the cancellation of the bail. The affidavits, however, were not believed, as they were filed only at the time of the hearing in Court and no opportunity was given to the appellant to controvert the same. The learned Sessions Judge did not also attach any importance to the reco--veries and the extra judicial confession and rejected the application.

10. The complainant then moved the High Court in revision. In this revisional petition certain reports lodged with the police on the 22nd of September 1964, 15th of March 1965, and the 20th of March 1965, were relied upon to prove the threats said to have been held out by the appellant, his father and brother to the prosecution witnesses. This revision petition was admitted for hearing and notice was directed to issue only in respect of the present appellant. The revision petition was dismissed as against his father and brother.

11. The revision was filed on the 13th of May 1965, i.e. Almost a year after the order of the learned Sessions Judge was passed on the 26th of May 1964, and in this the threats relied upon were new threats and not those which had been relied upon before the learned Sessions Judge. There the threats alleged to have been held out were said to have been made on the 25th of March 1964. The copies of two of the reports referred to in the revision petition which have been filed before us (vide pages 59 to 61 of the record), show that they were lodged on the 22nd of September 1964, and the 15th of March 1965, respectively. In the report of the 22nd of September 1964, the threat complained of is alleged to have been held out on the 21st of September 1964, and in the report of the 15th of March 1965, the threat alleged is of the same date It is clear, therefore, that these reports were not before the Sessions Judge when he disposed of the application for the cancellation of bails granted to the appellant, his brother and father. The ground for the revision, was therefore, clearly based on new threats which could not have furnished a valid ground for the revision of an order made on the basis of some previous threats. If these were fresh grounds for the cancellation of the bail after the Sessions Judge had refused to do so on the 26th of May 1964, the complainant should have first moved the Sessions Judge and then come up in revision from his order if he refused to cancel bail. New grounds upon which the Sessions Judge had not applied his mind could not be the foundation for the revision of that order.

12. Learned counsel appearing for the respondent No. 1, however, contends that under subsection (5) of section 497 of the Criminal Procedure Code the High Court has also original power to cancel bail granted by a subordinate Court. The mere fact that the High Court was only moved under section 439 of the said Code to revise the order of the Sessions Judge did not invalidate the order of the High Court which was otherwise an order which the High Court had jurisdiction to make. Even if this be so, we are of the opinion that the Court which granted bail should first have been moved on the basis of the new grounds for the cancella--tion of such bail. It is only proper that the Court which is seized of a matter should first have an opportunity of considering whether its previous order should be cancelled or not. We cannot approve of the adoption of such a procedure of by-passing the original Court which has already dealt with the matter. The procedure adopted in the present case is, in our opinion, not justified. The High Court should not have been deprived of the opinion of the District Judge in respect of the new grounds set out in the petition of revision in the High Court.

13. It is clear from the facts and circumstances of the present case that the High Court had not invoked its jurisdiction under subsection (5) of section 497 of the Criminal Procedure Code but merely acted in the exercise of its revisional powers under section 439 of the said Code under the mistaken belief that the learned Sessions Judge had ignored the evidence of the threats mentioned in the revision petition, although the same were never placed before him. The High Court had clearly not applied its mind to the material on the record and in the circumstances cannot b-- said to have exercised its discretion to cancel bail either in a judicial manner or upon correct principles.

14. This appeal must, therefore, in our opinion, be allowed and the order of the High Court set aside.

15. The appellant will con--tinue to remain enlarged on the interim bail already granted to him until such time as the Sessions Judge of Lyallpur thinks it fit to cancel the said bail upon a proper application being made to him in that behalf.