ORDER SYED SHABBAR RAZA RIZVI, J.- The petitioner filed this application under Section 497(5), Cr.P.C, for cancellation of bail of the respondents.
2. The brief facts leading to filing the present writ petition are that on petitioner's complaint F.I.R. No. 75/05, dated 5.2.2005 was registered at P.S. Hajipura, District Sialkot. In the challan, names of the respondents Nos. 1 to 4 were placed in column No. 2. However, the respondents Nos. 1 to 4 were summoned by the learned Addl. Sessions Judge for 13.7.2005. On the said date, the learned Addl.
Sessions Judge directed them to submit bail bonds in the sum of Rs. 100,000/- with one surety, each in the like amount to the satisfaction of the Court. The complainant, petitioner herein, moved an application for cancellation of the bail and for issuance of non-bailable warrants on 2.8.2005, the said application of the petitioner was dismissed on 20.9.2005. The said order has been impugned herein mainly on the ground that the bail application for non-bailable offences could be considered under Section 497, Cr.P.C! The learned counsel submits that the respondent could only be released as contemplated under provisions of Section 497, Cr.P.C, instead of Section 91, Cr.P.C, In this regard, the learned counsel cited several judgments but mainly pinned his arguments on 2005 P.Cr.L.J. 768 and 2005 P.Cr.L.J. 505.
3. The comments were sought from the learned Addl. Sessions Judge. Sialkot. According to the comments, the case was fixed for framing of charge, the complainant of the F.I.R, moved an application to summon the accused/respondents herein. According to the learned Addl. Sessions Judge, the names of the respondents were mentioned in the F.I.R, as well as in the complaint submitted by the complainant. Since specific roles were attributed to the respondents in the F.I.R., the respondents were summoned by the Court. The respondents appeared in the Court, they were directed to submit the bail bonds in the sum of Rs. 100,000/- each in the like amount to the satisfaction of the Court. According to the learned Addl. Sessions Judge, the respondents had not moved any application for grant of bail as they were declared innocent during the investigation.
4. The main emphasis^of the learned counsel for the petitioner is that, since the respondents were named in the F.I.R, and they had committed non-bailable offences, therefore, they were required either to be taken into custody or released on bail following the procedure of Section 497, Cr.P.C.
According to him, Sectiorr91, Cr.P.C, to be read with Section 204, Cr.P.C, are applicable in a case of a private complaint filed under Section 200, Cr.P.C. These sections are not applicable in a criminal case instituted on the basis of an F.I.R. The learned counsel for respondents supported order of the learned ASJ.
5. I have heard the learned counsel, In my humble view, Sections 91 and 2Q4, Cr.P.C, are not restricted in their application to cases instituted on a private complaint under Section 200, Cr.P.C.
The provisions of Section 91, Cr.P.C, are general in nature and it is applicable to any person for whose appearance or arrest a Court is empowered to issue a summons or warrant. As happened in the instant case, after taking cognizance, the learned Addl. Sessions Judge, Sialkot was competent to issue summons or warrants which he did. On appearance of respondents, the learned Addl. Sessions Judge required them to execute bonds. This order is consistent with provisions of Section 91, CrP. C. Which does not mention that it is only applicable in cases based on a private complaint and not applicable in cases instituted on an F.I.R.
6. Similarly, the provisions of Sections 204 and 205, Cr.P.C, are out of Chapter XVI which relates to complaints to Magistrates, the said two sections fall in Chapter XVII and are applicable to all cases.
They are not restricted to cases instituted on complaints. The first sentence of Section 205, Cr.P.C, is sufficient to understand the intention of the law-maker, it starts with these words, "if in the opinion of a Court taking cognizance of an offence". The words "taking cognizance of an offence" are significant, which do not mention taking cognizance of an offence in a complaint case in an F.I.R, case, it simply reads 'taking cognizance of an offence'. Cognizance may be taken in a complaint case or in an F.I.R. Likewise, no distinction Is expressly or impliedly mentioned in Section 204, Cr.P.C.
7. Similarly, the provisions of Section 91 mention power of a Presiding Officer of a Court, who is competent to issue summons or warrants for the presence of an accused person to require such person to execute bonds where he is present in the Court. I think I can make myself more clear if I suggest reading of Section 91 with Section 190, Cr.P.C.
8. It is true that case-law referred to by the learned counsel for the petitioner supports his point of view. However, I will not discuss all the cases for the purpose of brevity; I will discuss cases of Muhammad Yousaf ulla v. Malik Muhammad Iqbal and 17 others. The judgment was delivered by a Division Bench of this Court, In the said case respondents Nos. 16 and 17 were required to furnish bail bonds. The request to cancel their bail was refused by the Trial Court. The said order of refusal was challenged before this Court which was decided by a Division Bench.' The learned Division Bench noted the arguments of the learned counsel for the petitioner that the reliance of the learned Anti-Terrorism Court (Trial Court) upon the case of Mazhar Hussain Shah v. State (1986 P.Cr.L.J. 2359 Lah.) was not an patas that case evidently was a complaint case and for the same procedure for appearance of the accused was issued under Section 204, Cr.P.C. The learned Division Bench noted in para 43 of the report as under:- "Section 204, Cr.P.C, deals with question of issuance of process to accused when a Court taking cognizance of an offence in a complaint case is of the opinion that there is sufficient ground for proceeding further with matter. This in no* way deals with an offence, the cognizance of which is taken on a report made by a police officer of facts constituting an offence."
9. The Court noted that in the said case cognizance was taken by the Trial Court on the police report instead of in a complaint. Therefore, according to the learned Division Bench, the law laid down in 1986 P.Cr.L.J. 2359 was not applicable, requiring respondents Nos. 16 and 17 to furnish bail bonds. The learned Division Bench set aside the order of the ,Trial Court in above context in the following words:-- "We, therefore, accept the petition (Crl. Misc. No. '3264-BC of 2004) of the complainant and set aside order dated 29.1.2004 to the extent of requiring respondents Nos. 16 and 17 to furnish bail bonds and the order dated 24.4.2004 and accept the application of the petitioner/complainant to cancel their bail and declare the acceptance of their such bonds to be invalid."
10. Undisputedly, in the above judgment of the learned Division Bench, the cognizance was taken in the F.I.R., however, it is respectfully pointed out that interpretation of Section 91, Cr.P.C, by the learned Division Bench was not approved by the Hon'ble Supreme Court. Referring to respondents Nos. 16 and 17, the Hon'ble Supreme Court observed as under:-- "A perusal of above order indicates that prima facies learned Trial Court failed to take into consideration that the case of petitioners, Raja Munawar Hussain, Amjad Javed Saleemi is also at par with the case of Dr. Muhammad Azam, therefore, they have also not been summoned and once the Court decided to proceed against them, then their bail should have not been cancelled, as they were liable to be dealt with under Section 91, Cr.P.C, in view of the judgment in the case of Mazhar Hussain Shah v. The State (1986 P.Cr.L.J. 2359)."
11. The matter decided in this case (1986 P.Cr.L.J.) arose in a complaint case; however, the learned Single Bench of this Court interpreted provisions of Section 91 and Section 204, Cr.P.C, without observing that provisions of these two sections apply in a F.I.R, case or in a complaint case. Another aspect needs consideration; simple reading of Section 91 makes it abundantly clear that it is applicable not only to accused persons;. It is equally applicable to witnesses also. For the same reason, word "any person" is used in Section 91 instead of "any accused". Para 3 of 1986 P.Cr.L.J. 2359 is reproduced in support of my above view as hereunder:-- "Section 204, Cr.P.C, provides that if the Court taking cognizance of an offence is of the opinion that there is sufficient ground for proceeding, it shall issue a summons if the case appears to be one in which, according to the fourth column of the Second Schedule, a summons should issue in the first instance but if the case appears to be one in which according to that column, a warrant should issue in the first instance, it may issue a warrant, or, if it thinks fit, a summons, for causing the accused to be brought or to appear before it. According to fourth column a warrant should ordinarily issue in the first instance in a case under Section 302, PPC but in this case the Court chose to issue a summons. Section 91, Cr.P.C, lays down that when any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such office may require such person to execute a bond, with or without sureties, for his appearance in such Court. Under this section a bond with or without sureties may be taken from an accused person or from a witness for his appearance. The learned Sessions Judge was empowered to issue warrant or summons for causing the accused to be brought to or appear before him and exercising that power he issued summons to the petitioners in response to which they appeared before him. He was, therefore, required to proceed under Section 91, Cr.P.C., and to direct them to execute bonds with or without sureties for their appearance in Court. This section by necessary implication also empowers the Court to commit the person present in Court to custody if he fails to give security for his attendance, it is nobody's case that the petitioners were asked to execute bond and they had failed to do so.
Process is issued to the accused when the Coart taking cognizance of the offence is of the opinion that there is sufficient ground for proceeding. Such opinion is not to be equated with the existence of reasonable ground for believing that the accused was guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years, In the circumstances, I feel inclined to the view that the petitioners are entitled to bail. The interim bail is, therefore, confirmed."
12. Despite the fact that Muhammad Yousaf ulla v. Malik Muhammad Iqbal and Malik Muhammad Iqbal and others v. State originated on basis of an F.I.R., the learned Supreme Court observed that Section 91, Cr.P.C, was applicable in view of Mazhar Hussain Shah v. State (1986 P.Cr.L.J. 2359). That means, the said judgment of the learned Single Bench has been approved by the Hon'ble Supreme Court against judgments referred to by the learned counsel for the petitioner.
13. Section 88 of the Code of Criminal Procedure, 1973 (India ) is verbatim in language to Section 91, Cr.P.C. For convenience, it is reproduced hereunder:-- "When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue summons or warrant, is present in such Court* such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court or any other Court to which the case may be transferred for trial."
The purpose of this section is to ensure or demand presence of such person who is directed by the Court to execute the bonds. For the same reason, these provisions are applicable to a person who is present in Court and is free. If a person is already under arrest and in custody, provisions of Section 91, Cr.P.C, are pot applicable, In this regards two judgments from Indian jurisdiction are referred Singh v. State (AIR 1970 Delhi 155) and Madhu Umaye v. S.D.M. (1971 P.Cr.L.J. 1720 and AIR 1971 S.C. 2486).
14.. Therefore, in view of the above discussion, this Crl. Misc. No. 7524/BC/2005 is dismissed and order dated 8.7.2005 and 13.7.200$ passed by the learned Addl. Sessions Judge, Sialkot are upheld.