' SYED SHABBAR RAZA RIZVI, J.--- The learned counsel filed this application under section 497(5), Cr.P.C. For cancellation of bail order delivered on 12-12-2008 by the learned Additional Session Judge, Wazirabad. By the impugned order respondents Nos.1 to 4 were granted pre-arrest bail.
2. Briefly, according to the F.I.R., the complainant Maqsoodan Bibi contended that she was present along with her daughter in her house, that respondents Nos.1, 2,. 3 and 4 armed with Sotas entered into the house of the complainant. They abused and gave beating to the complainant and her daughter and also torn the clothes of Fakhira Bibi.
3. According to the learned counsel for the petitioner, the respondents were nominated in the F.I.R.
Which was promptly lodged; that the respondents caused injuries to women mentioned in the F.I.R.
And the allegation is corroborated by the M.L.Rs, and the impugned order has been delivered in clear violation of law on the point of bail before arrest which is an extra-ordinary concession.
According to him, pre-arrest bail can only be granted in exceptional circumstances and on repeatedly illustrated grounds by the superior Courts of this country. The impugned order does not conform to the criteria laid down by our superior Courts. On the other hand, according to the learned counsel for the respondents, both the parties entered into a fight and at this stage it is not possible to know who was the aggressor. The complainant party was also granted pre-arrest bail and for the same reason respondents were also granted bail. It is added that order of the learned Additional Session Judge is well reasoned and consistent with the, requirements of the law.
4. I have considered the above contentions and also perused the impugned order. The grounds for impugned order are mentioned in para.8 of the impugned order which reads as under:- "As regards, the accused persons of the main F.I.R., the allegation against the accused persons is that they caused injuries to three injured womenfolk with their Sotas. Perusal of record reveals that Investigating Officer recorded Case Diary No,3, dated 28-11-2008 and concluded that Abdul Aziz petitioner/ accused came at the spot after the occurrence and Amjad and Kashif petitioners/accused caused the injury to the injured of main F.I.R. Perusal of record further reveals that recovery of weapon of offence has been effected from Amjad Farooq petitioner/accused. The offences applied against the petitioners/ accused except the offence under section 337-A2, P.P.C.
Are bailable and the general allegation of causing injury has been levelled. It is not brought on record that who is the aggressor in the instant case and Investigating Officer has not been able to attribute the injury under 337-A2, P.P.C. To any of the accused persons and the record is silent on this aspect."
5. The reading of the above quoted paragraph shows that pre-arrest bail was confirmed by the learned Additional Session Judge on grounds:--- That recovery was effected only from one accused Amjad Farooq; that all offences were bailable except 337-A2, P.P.C.; that a general allegation of causing injuries was levelled; that it was not established by the Investigating Officer as who was the aggressor; and that injury under section 337-A2 was not attributed to any accused specifically.
6. Apparently, these reasons are not relevant to grant pre-arrest bail, they may be relevant or sufficient for post-arrest bail. Considerations for pre-arrest bail and post-arrest bail are entirely different. Prima facie, the learned Additional Session Judge failed to appreciate that distinction in the instant case. It was held that "power to grant pre-arrest bail is available in cases of exceptional nature and that power has to be exercised when pre-conditions laid down by the superior Courts are satisfied". (1999 PCr.LJ 200). It was observed by the Honourable Supreme Court that "in order to make out a case of anticipatory bail the following conditions were to be satisfied:---
(i) Arrest being for ulterior motive such as humiliation and unjustified harassment;
(ii) prosecution motivated to cause irreparable injury to reputation and liberty;
(iii) motivation of police on political consideration". (PLD 1983 SC 82).
' This Court also observed in another case as below:--- "Basic conditions are that the accused apprehends arrest due to some ulterior motive or mala fides on the part of authorities or other influential persons or there are some peculiar features of the case e.g. Accused enjoyed good name and his arrest may humiliate him in public eyes which would justify the exercise of this discretionary power." (PLD 2003 Lah. 403).
' This Court also held that:--- "Provisions of section 498, Cr.P.C. Are intended to be used sparingly in exceptional cases where mala fide is patent or even latent. Such provisions cannot be used for circumventing normal procedure of arrest and investigation after arrest." (1999 PCr.LJ 200).
' Besides above grounds, pre-arrest bail can also be granted where falsity of involvement of the accused is visible on the record. It was held:--- "Pre-arrest bail is an extra-ordinary concession which is to be extended to accused who has been implicated falsely." (2000 PCr.LJ 1605).
7. In the impugned order the learned Additional Session Judge himself recorded that recovery of weapon of offence was effected from Amjad Farooq accused/respondent No,2. He also observed that offences against the respondents are of bailable nature except 337-A2, P.P.C. In other words he did not believe false involvement of the respondents. Moreover, he did not even mentioned that respondents were involved with mala fide and ulterior motive on part of the complainant or the police.
8. In view of the above discussion, this application is allowed and impugned order passed by the learned Additional Sessions Judge is set aside and declared unlawful being inconsistent with the criteria laid down by the superior Courts of this country as discussed above. Office is directed to send a copy of this order to the concerned learned Sessions Judge and the learned Additional Sessions Judge.