' RAHMAT HUSSAIN JAFFERI, J.--- The petitioner has filed the present petition to challenge the order, dated 10-9-2009, passed by the learned High Court of Sindh Bench at Sukkur, by which respondent Nol. (hereinafter referred to as "the respondent") was released on bail in the sum of Rs,1,00,000 without granting him bail as required under the law with a prayer that the respondent may be remanded to custody to IA be dealt with in accordance with law.
2. The brief facts of the case are that the respondent was involved in the murder case of deceased Abdul Razzaq with the allegation that he along with Noor Hassan and Abdul Hameed co-accused, fired from their kalashnikovs at the deceased, who after receiving injuries fell down on the ground.
The petitioner, who is the complainant of the case, had also involved accused Hanif, Islam, Aitebar, Ali Anwar, Noor Hassan, Abdul Hameed and Hazoor Bux. The police after usual investigation submitted the Challan showing accused Hanif and Islam on bail whereas accused Aitebar, Ali Anwar, Noor Hassan, Abdul Hameed and Hazoor Bux as absconders. However, Hazoor Bux (respondent) and Suleman were let off and their names were put in Column No,2. Subsequently, the petitioner moved an application for joining the respondent and Suleman in the case as accused persons. The learned trial Court, vide order, dated 17-6-2009 joined the respondent in the case and ordered to issue non-bailable warrants, whereas Suleman was not joined as accused in the case.
3. The respondent approached the High Court of Sindh Bench at Sukkur, by filing Criminal Bail Application No,52 of 2009 and the learned High Court instead of granting him bail converted the non-bailable warrants into bailable warrants. The respondent again approached the learned High Court with a complaint that his surety papers were not accepted by the trial Court. The High Court called the explanation from the trial Court, which reported that the respondent did not appear or furnish surety papers. Therefore, on 2-9-2009, the learned High Court directed the respondent to approach the trial Court and submit surety. It was further ordered that the learned trial Court should pass orders in accordance with law keeping in view the earlier orders passed by the High Court. On 5-9-2009, the respondent appeared and offered surety before the trial Court. After the surrender of the respondent, the trial Court remanded him to judicial custody on the ground that he could not be released without granting him bail on an application filed by him as prima facie he had committed the murder with active role of firing at the deceased. The respondent again approached the learned High Court, where the impugned order was passed. A relevant portion of the said order reads as under:--- "I, for the above reasons, in the first place, direct the applicant to furnish surety before this Court in the sum of Rs,1,00,000 (Rupees one lac) with P.R. Bond in the like amount to the satisfaction of the AdditionaPRegistrar of this Court and the applicant shall be released forthwith on furnishing such surety. Secondly, I withdraw the case of the applicant from the Court of 2nd Additional Sessions Judge, Sukkur and assign it to the Sessions Judge, Sukkur. Thirdly, the 2nd Additional Sessions Judge, Sukkur shall furnish explanation as to why disciplinary proceedings should not be initiated against him for 'wilful defiance of the orders of this Court mentioned hereinabove, and unuautorizedly remanding the applicant to jail when there were clear directions of this Court that the applicant shall furnish surety. This criminal review is allowed and the impugned order is set aside. Copy of this be sent to the Sessions Judge, Sukkur and the explanation should reach this Court within span of two days."
4. We have heard the learned counsel for the petitioner the respondent as well as the State Counsel, perused the record and relevant law on the subject. Learned counsel for the petitioner has stated that when the learned trial Court joined the respondent as an accused person, his name was appearing in Column No,2 of the Challan as such the learned trial Court was required to issue process as required under section 204, Cr.P.C. Therefore, non-bailable warrants were issued as required by Fourth Column of Second Schedule of Cr.P.C. Because the offence was non-bailable; that the process under section 204, Cr.P.C. Is to be issued to procure the attendance of the accused so as to face the trial and thereafter the trial Court was required to grant bail on an application filed under section 497, Cr.P.C. And after its grant the accused can be released otherwise not. He has further stated that the learned trial Court has relied upon the decision of the High Court of Sindh reported as Noor Nabi v. State 2005 PCr.LJ 505 under which detailed discussion has been made on the subject involved in the case which was applicable to the facts and circumstances of the case. He has further stated that no bail application was filed or pending before the High Court for grant of bail; that the earlier bail application bearing No,52 of 2009 was disposed of when non-bailable warrants were converted into bailable warrants; that without passing a bail order the learned High Court was not justified in releasing the accused in the present manner. He has added that release of the respondent under the impugned order is illegal, therefore, he may be remanded to the judicial custody to be dealt with according to law.
5. Conversely, the respondent, who has appeared in person has argued that he has been falsely involved in the case; that the police had found him innocent, hence his name was put in Column No,2 of the Challan; that the learned trial Court has illegally, remanded him to judicial custody in spite of the fact that the learned High Court had ordered for his release and thereafter, accepting surety in the sum of Rs,1,00,000 and that his release on the order of the learned High Court was legal and proper.
6. The learned State Counsel has not supported the impugned order and argued that the learned High Court was not justified in releasing the accused merely on accepting surety without passing a judicial order of grant of bail within the scope of section 497 read with section 498, Cr.P.C., that an accused person in a non-bailable offence can be released on bail only on the grounds mentioned in section 497, Cr.P.C. And that the order of the learned trial Court was in accordance with law and is supported by a decision of the High Court of Sindh in the case of Noor Nabi (supra). He has further argued that after the accused was joined as an accused, after removing his name from Column No,2 of the challan the only course left with the trial Court was to issue process, as provided under section 204, Cr.P.C., which was done; that initially the learned High Court in Criminal Bail Application No,52 of 2009 did not grant him bail though such request was made but converted non-bailable warrants into bailable warrants, which had lost its effectiveness after the respondent had surrendered before the trial Court, therefore, the learned trial Court had no option but to remand him to custody unless bail was granted to him, which has not been done so far. He has adopted the arguments of learned counsel for the petitioner and stated that the respondent may be remanded to the judicial custody as he is involved in committing the murder of the deceased with specific role of firing at the deceased.
7. Having heard the learned counsel for the parties, the respondent and perusing the record of the case very carefully, we find that the point involved in the case is interpretation of section 204, Cr.P.C. As the name of the respondent was put in Column No,2 of the Challan because the police found him innocent but the respondent was joined as an accused person under the orders of the trial Court which has not been challenged anywhere as such it has attained finality. Thus, the respondent was an accused in a murder case which is punishable with death or imprisonment for life.
8. In this case, after submission of Challan, the Judicial Magistrate took cognizance as provided under section 190, Cr.P.C. And sent up the case to the Court of Session where the cognizance was also taken as required under section 193(1), Cr.P.C. The case was assigned to IInd Additional Sessions Judge, who issued the process to the respondent mentioned in Column No,2 of the Challan after joining and making him as an accused. The process in the shape of non-bailable warrants was issued to procure his attendance so as to commence the proceedings against him.
The scheme of Criminal Procedure Code envisages three steps (i) initiation of proceedings which can be initiated after fulfilling one of the conditions, as proded under sections 190 to 199-B of Chapter XVB, Cr.P.C.; (ii) commencement of proceedings as provided under Chapter XVII, Cr.P.C.
Containing only two sections viz. 204 and 205; and (iii) the trial as provided under Chapters XX or XXII or XXII-A, etc. Cr.P.C. One of the conditions for initiation of proceedings is to take cognizance as required under section 190 of Chapter XV-B, Cr.P.C. The heading of Chapter XV-B reads as under:-- - "B- Conditions requisite for initiation of proceedings."
' Thus, under this Chapter, the cognizance is one of the conditions for initiation of proceedings.
Once the proceedings are initiated then the same are required to be commenced which can only be done under section 204, Cr.P.C. Of Chapter XVII, heading of which is as follows:--- "Of the commencement of proceedings before Courts."
9. It will be advantageous to reproduce section 204, Cr.P.C. To understand the scope of the said provision of law:--- "204. Issue of process.--- 11) If in the opinion of a Court taking cognizance of an offence there is sufficient ground for proceeding, and 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, {it} shall issue its summons for the attendance of the accused. 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 at a certain time before such Court or if it has no jurisdiction itself some other Court having jurisdiction.
(2) Nothing in this section shall be deemed to affect the provisions of section 90.
(3) When by any law for the time being in force any process fees or other fees are payable, no process shall be issued until the fees are paid, and if such fees are not paid within a reasonable time, the Court may dismiss the complaint."
' Under subsection (1), if the Court, which is taking cognizance of the offence (under sections 190, 193, 194 and 200 etc., Cr.P.C.) finds sufficient grounds for proceedings, then it can issue process according to ColumnNo,4 of 2nd Schedule to Cr.P.C. If the case is such where summons is required to be issued under 4th Column then summons shall be issued for attendance of the accused and if the case appears to be one in which according to said Column warrants should be issued then the Court may in the first instance issue warrants or if thinks fit summons can be issued for causing the appearance of the accused before the Court on certain date or if it has no jurisdiction then direction can be issued to appear before such other Court. Under subsection (2), the provisions of section 90, Cr.P.C. Would not come in the way.
10. Thus, the purpose of section 204, Cr.P.C. Is to procure the attendance of the accused by issuing the required process. If the accused is in custody then such process can be issued by issuing production order to the jail authorities and if the accused is absconding then the process can be issued in the shape of warrants. It is pointed out that if the accused is absconding or released then the name of accused of both the categories are required to be mentioned in Column No,2 of the Challan with red and blue ink, respectively. Therefore, the process is to be issued to the accused, who is absconding and similar process can also be D issued to an accused whose name is in Column No,2 with blue ink after he is made an accused in the case. It will be noted that warrants are addressed to the Police Officer to arrest the person and produce him before the Court on a particular date. Thereafter the said warrants become ineffective unless extended or re-issued by the Court. Similar is the case with the bailable warrants under which the Police Officer is required not to arrest the accused if he furnishes surety before him for his appearance before the Court on the date mentioned in the warrants. After appearance of the said accused before the Court the said order ceases to exist unless the accused is released in accordance with law.
11. In such a situation when the accused appears in pursuance of process under section 204, Cr.P.C.
Either through summons or warrants or bailable warrants or on his own and if the offence is non- bailable then the provisions of section 497, Cr.P.C. Would be attracted and accused could only be released after moving such application and grant of the same. If no such application is moved or no bail is granted by any competent Court either under section 497 or 498, Cr.P.C., as the case may be, then the accused is required to be remanded to judicial custody till the time a proper order is passed either by the trial Court or by the superior Court.
12. We have examined the order of the learned Additional Sessions Judge and find that the same is well-reasoned, based upon correct interpretation of relevant provisions of law and relying upon the case of Noor Nabi (supra). We have also examined the said judgment and found that the learned High Court examined in depth all the required provisions of law and interpreted the same in its true perspective. We have examined the impugned order of the learned High Court but are unable to persuade ourselves to agree with the finding arrived at by the learned High Court particularly releasing the accused without the grant of bail. Such release of the accused was unwarranted, illegal and against the provisions of sections 497 and 498, Cr.P.C., therefore, the said order IF cannot be sustained.
13. In the light of what has been discussed above, the impugned order passed by the learned High Court is set aside and the remarks recorded against the learned Additional Sessions Judge are expunged. The respondent is directed to surrender before the trial Court immediately. However, he may move an application for grant of bail under section 497 or 498, Cr.P.C., as the case may be, which shall be decided in accordance with law and merits of the case.
14. Consequently, the petition is converted into appeal and allowed in the above terms.