This is a petition for bail under section 498, Cr. P. C., in a murder case. In the same case the petitioners had earlier moved a petition for bail which was dismissed by my order, dated 31st March 1970, passed in Criminal Miscellaneous No, 1888 of 1970.
2. The ground of delay in conclusion of commitment proceedings which has now been urged in support of this petition was also urged to in the earlier bail matter. Dealing with this ground I had observed as follows : - "4. The question of delay as a ground of bail in a murder case was commented upon by their Lordships of the Supreme Court in a recent case Dost Muhammad and another v. The State (P. S. L.
A. No, 140 of 1969, decided on 12th June 1969). The following observations by their Lordships apply to this case also :- `The learned Judge following the decision in Mohammad Nawaz and others v. The State rules out the contention that mere delay in the disposal of a criminal case is not in itself a ground for granting bail to a person accused of an offence punishable with death.
We are in agreement with the learned Judge and further find that the delay in the completion of the commitment proceedings is due to the summoning of the record in the High Court in connection with the bail application and in connection with the appeal arising from Cr. P. S. L. A. No, 219 of 1968 in this Court.'
However, I have considered this question on merits also. On my enquiry, the learned counsel stated that there are two grounds for delay : (i) that the complainant filed a transfer application and got a stay order ; and (ii) that the complainant failed to produce the witnesses before the learned committing Magistrate. Even if it be accepted as true that the complainant filed a transfer1 application which ultimately was dismissed ; and during the pendency of which, the proceedings before the learned committing Magistrate were stayed, this, by itself, cannot be considered as an abuse of process of the Court. In our system of laws, which of course is based on rule of law, nobody can be stopped from approaching the forum which is competent to give a redress. If the transfer application was moved and a stay order was passed, the responsibility is not entirely of the complainant but also of the forum which entertained the application and granted the stay order. So far as the non-production of the witnesses is concerned, learned counsel states that only two or three witnesses are now to be examined. All others have already been examined. If it would have been due to the machination of the complainant that the witnesses were not produced, this must have been asked from the witnesses in their cross-examination. And if there would have been a response favourable to the petitioners, it must have been brought to the notice of the learned Sessions Judge or to this Court. Nothing has been done in that direction. Therefore, I find no merit in this contention either. The petition is consequently dismissed in limine."
The ruling of the Supreme Court in the case of Dost Muhammad was given in case Dost Mohammad and another v. The State Criminal Miscellaneous No, 5324-68, decided by me on 18th April 1969. I had in that case discussed at some length the question of delay in Criminal cases vis- a-vis the subject-matter of quashment and bail. Some, well-known, rulings were cited and discussed. It is important to note that while deciding the question of delay in the case of Dost Muhammad their Lordships did not treat the long delay, occasioned by summoning of file in the High Court and the Supreme Court, as abuse of process of Court.
3. When the present petition came up before me on 23rd October 1970, learned counsel for the petitioners argued that the commitment proceedings had not been concluded by then, there. fore, the petitioners were entitled to bail on ground of delay. When I asked him as to whether the learned committing Magistrate was in any way directly responsible for this delay, he could not give any definite reply because he was not in possession of the copy of the order sheet. The case adjourned to 17th November, so that the learned counsel may place the relevant material on the file and in the meanwhile the learned Magistrate was directed to proceed with the case expeditiously. When the matter again came up before me for final hearing, the learned counsel informed that despite the direction of this Court no appreciable progress was made in so far as the commitment proceedings were concerned. On enquiry however, it was found out that the direction of this Court may not have reached the learned Magistrate well in time. I, therefore, wanted to give another direction to the learned Magistrate for expeditious disposal of the case, but the learned counsel insisted that the petition for bail should be decided on merits so that if the order of this Court is not favourable to the petitioners, they may seek further remedy. After hearing the learned counsel on merits, I came to the conclusion that no justification was made out for releasing the petitioners on bail on ground of delay in conclusion of the commitment proceedings.
4. From the material placed on record by the learned counsel, it is amply clear that the learned Magistrate is not in any way directly responsible for the delay in the commitment proceedings.
According to the learned counsel, the file of the case had been summoned in the Court of the learned Additional Sessions Judge in connection with some proceedings, presumably revisional. .The order sheet of the learned Magistrate shows that on some occasions he did make efforts to procure the file and on other hearings he adjourned the case for short dates in expectation that he might receive the file. The reading of the order sheet shows, that the learned Magistrate has been anxiously waiting for the return of the file. On some occasions which are very small in number, however, the case was adjourned due to the absence of the learned Magistrate which absence, it is neither urged nor it appears, was for any unreasonable cause. I have also gone through the order sheet of the learned Additional Sessions Judge. From that also it does not appear that the learned Judge intentionally delayed the disposal of the matter. The adjournments, granted after2 March 1970, from time to time were for reasonable cause. On consideration of all these facts I am satisfied that the delay which was occasioned after my last order (i,e,, March 1970), cannot be termed as due to any abuse of process of the Court and the observations made by me in my order, dated 31st March 1970, which have been quoted above, are fully attracted even to the present petition.
5. Learned counsel for the petitioners, however, very vehemently contended that his clients are not at all responsible for the delay, therefore they should not be allowed to suffer. This being a murder case is covered by the prohibition in subsection (1) of section 497, Cr. P. C. Therefore unless the case falls under the proviso to that section or unless the delay amounts to abuse of process of the Court, the petitioners cannot be released on bail. It is no doubt true that in such like cases the accused persons, if they are not responsible for the delay, suffer a prolonged detention unnecessarily. The delays in disposal of criminal cases have now become proverbial. Many cases, even of murders, with delay of several years have come to my notice. As observed by me in the earlier order, in our system of law, which of course is based on rule of law, nobody can be stopped from approaching the forum which is competent to give a redress. If by conducting the proceedings in different Courts delay is occasioned, it cannot be said that it is due to abuse of process of the Court because some amount of delay in such circumstances is, as already noted, inherent in the prescribed procedures. At the same time I am conscious that due to various proceedings in a case which may not have been moved by an accused person and for which he may not be directly responsible, certain amount of delay may take place, for which he may suffer, without' any fault on his part. It has already been ruled by their Lordships of the Supreme Court that delay per se is no ground for bail in a case covered by the prohibition contained in section 497 (1)
Cr. P. C. Indeed the Court in a case of delay simpliciter, when it does not amount to abuse of process of the laws and Court is helpless and cannot release a person, accused of an offence punishable with death or transportation for life, on bail even if it comes to the conclusion that the delay is inordinate. Cases of Muhammad Nawaz and Dost Mohammad are again, with respect, referred. The same conclusion is reached if in these circumstances the Court is of opinion that the accused is not at fault and that he should not be allowed to suffer. Probably when the Code was enacted, there was no possibility of such delays in disposing of criminal cases of serious nature as are covered by the prohibition contained in section 497 (1), Cr. P. C. In view of the changed circumstances it may be desirable for the Legislature to consider the question of amending the proviso to subsection (1) of section 497, Cr. P. C., so as to cover such like hard cases. Unless that is done, the law is clear on the point, that in a case like the present one an accused person cannot be released on bail on the simple ground of delay. And in all cases of considerable delay it will not be possible to give a finding that it was due to abuse of process of the Court.
6. With the above remarks this petition is dismissed because the delay, though it is not for any fault of the present petitioners, is not due to abuse of process of the Court : and per se it is not a sufficient ground for releasing on bail a person who is charged of an offence punishable with death or transportation for life.
7. Notwithstanding the dismissal of this petition the learned Magistrate is directed to dispose of the commitment proceedings without any avoidable delay. He is further directed to comply with my order, dated 23rd October 1970. 1968 SCM R 683 PLD 1971 Lah. 381 1 2