This bail application under section 498, Cr. P. C. For anticipatory bail before arrest was moved by applicant Muhammad Amin on the following facts supported by an affidavit of the applicant.
2. That he is a proprietor of a Battery Cell Manufacturing Company, has been a permanent resident of Karachi since last 20years and comes from a respectable Qureshi family of Campbell pur, that he married one Mst. Parveen daughter of Muhammad Shareef Butt according to Sunni Muslim Law in Lahore in December 1971 by her own consent and consent and presence of her parents, and that nikah was duly registered by Union Committee Gulberg Lahore. That immediately after the marriage he and his wife came to Karachi and started living as husband and wife, The girl's maternal grandfather and maternal grandmother who had no means of subsistence accompanied the girl i.e. His wife to Karachi and were living with them, after few months, the applicant got fed up and refused to maintain them. Upon this they got furious, went to Lahore and threatened him that they would teach him a lesson.
3. That on 24-5-1972 in absence of the applicant, police from Gulberg Police Station Lahore, came to his house and inti--mated the house-mates that they would arrest him on a complaint lodged at Lahore dated 14-4-1972 filed by the maternal grand mother of Mst. Parveen (who is presently the wife of the applicant) under section 363/366, P. P. C. That due to genuine apprehension of being arrested by the police on a false complaint, he could not go to his house nor he is able to go to Lahore and get bail Won arrest from the Magistrate concerned because the police is shadowing him. With regard to the case it is stated that the case is absolutely false, has been filed in order to degrade him in the eyes of the people and community and cause him loss in his busi--ness and that the alleged offence is not, punishable with death or transportation and he is not likely to abscond or tamper with the prosecution evidence, is willing to furnish surety in this Court for bail before arrest to enable him to appear before the Magis--trate concerned at Lahore.
4. It may be noted that Mst. Parveen has filed an affidavit in this Court along with the bail application stating that applicant Muhammad Amin is her husband and the marriage took place in December 1971, and that she has been given in marriage by her parents and with her own consent to the applicant and that she is major about 18 years of age and legally wedded wife of the appli--cant, that she has not been kidnapped by her husband, this case has been filed by her maternal grand-father and maternal grand-- mother simply to take revenge from her and her husband because they refused to financially support them at Karachi. It is further stated that the complaint at Lahore has been filed in order to harm her husband's reputation and to blackmail him to extract money from him and cause him loss in business.
On the first date of hearing i.e. 26-5-1972 the applicant as well as Mst. Parveen his wife both were present in the Court, as I maintained some doubts with regard to the maintainability of this application on the point of jurisdiction of this Court I issued notice to the Advocate-General, Sind.
On 27-5-1972, when the case came again for hearing a request was made by the learned Advocate-General that before proceeding with his arguments, the girl may be examined with regard to her age and in the meanwhile be will ascertain as to with what offence the applicant is charged from the warrants if any allegedly presented at Liaquatabed Police Station, Karachi by Lahore Police and he requested for adjourn--ment of the case for this purpose, I thereupon, granted interim bail to the applicant on furnishing a personal bond for Rs. 5,000 up to the next date of hearing.
5. On the next date of hearing, the applicant appeared in Court along with Mst. Parveen and presented a medical certificate which is Exh. 1 issued by Dr. Muhammad Umar Khan, M.B.B.S, Police Surgeon, Karachi, wherein he certified that Mst. Parveen is about or above 18 years of age. This report was based both on clinically and radio logically vide X-Ray No. 5629 dated 25-5-1972. 1 may observe here that neither the warrants were produced before me nor the facts sworn in the affidavits referred above by the applicant and his wife Mst. Parveen have been disputed by the Advocate-General.
6. This matter was put before me finally for arguments on an order of the learned Senior Judge Mr. Justice Noorul Arlin on a request of the counsel for the applicant and I have heard Mr. M. M. Pirzada, Advocate for the applicant and Mr. Jamaluddin H. Ahmed, Additional Advocate-General who represented the State on 3-6-1972. The learned Additional Advocate-General from the outset contested this application on the ground that this Court has no jurisdiction to grant bail before arrest to the applicant against whom warrants of arrest are issued from a Court outside the jurisdiction of the Provinces of Sind and Baluchistan. He pleaded that powers under section 498, Cr.
P. C. Are exercisable by this Court with regard to applicants who are residents and who have committed offence within the territorial jurisdiction of this Court, as the offence is alleged to have been committed at Lahore; therefore according to Additional Advocate-General this Court cannot give any relief to the applicant. In support of his con--tention he referred to section 58, Cr. P. C.
Wherein it is laid down that "a police officer may, for the purposes of arresting without warrant any person whom he is authorised to arrest under this Chapter, pursue such person into any place in Pakistan," and stated that after the arrest of such person section 60, Cr. P. C. Comes into play and the alleged offender is to be produced by the police without unnecessary delay subject to provisions of bail, before the Magistrate having jurisdiction of the case or Officer-in--Charge of the police station. He next referred to section 167 (2), Cr. P. C. To elaborate his point of view, which is as under "167 (2) The Magistrate to whom an accused is forwarded under this section any, whether he has or has not jurisdiction to try the case from time to time authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole. If he has not jurisdic--tion to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction, provided that no Magistrate of the third class, and no Magistrate of the second class not specially empowered in this behalf by the Provincial Government shall authorise detention in the custody of the police."
He therefore, argued that even had warrants been executed and the accused arrested, the Court at Karachi have no jurisdiction except to transmit or send the accused to be produced before the Magis--trate at Lahore who has issued the warrants and only that Court can give relief to the applicant.
7. To supplement his argument that this Court has no juris--diction and the application is not maintainable the Additional Advocate-General referred me to Law Reforms Ordinance (Ordi-- nance XII of 1972). Item No. 31 which is as under: - "In section 86, in subsection (1) for the full-stop at the end a colon shall be substituted and thereafter the following further proviso shall be added namely Provided further that, if the offence is not bailable or no direction has been endorsed under section 76 on the warrant, the Sessions Judge of the Sessions Division in which the person is arrested may, subject to the provisions of section 497 and for sufficient reasons, release the person on an interim bail on such bond or security as the Sessions Judge thinks fit and direct the person to appear by a specified date before the Court which issued the warrant and forward the bond to that Court," and argued that the above amendment has been brought in section 86 to fill up the lacuna in the prevailing law and to give jurisdiction to the Sessions Judge to release an accused on interim bail on furnishing security to facilitate him to appear before a Court which has intitially issued warrants of arrest. Had there been any power in the Court of Sessions or this Court to give relief to an applicant for whose arrest warrants have been issued by a Court outside its jurisdiction, there was no necessity according to the Additional Advocate-General, for the Legislature to bring the above intended amendment; therefore, according to him even by implication it is obvious that this Court has no jurisdiction to entertain the application.
8. In support of his contention he relied on an unreported judgment of this Court in Criminal Bail Application No. 396 of 1971 by my learned brother Mr. Justice Mohammed Haleem. As the order is very short one, for sake of convenience and better understanding I would like to reproduce the same an toto "Mr. M. Shah for the applicant.
A: G. In person.
The applicant has applied for bail before arrest in a case registered at Police Station Railway at Lahore against him under sections 420, 468, 471 read with section 109, P. P. C. A non--bailable warrant was issued for his arrest and sent for execution to Karachi. The applicant has not been arrested but has applied for bail. The office objected to the maintainability of the application upon the ground that the offence was com--mitted within the territorial jurisdiction of the Punjab High Court but the learned counsel for the applicant answered it by saying that this Court has jurisdiction to grant interim protection to enable the applicant to appear before the con--cerned Court. I asked the learned counsel under what provision of law can this Court grant interim protection and he relied on section 498, Cr. P. C. This provision will only apply to a case where an offence is committed within the territorial limits of this Court as prescribed by par&. 3 (2) of the High Court Establishment Order, 1970 which is not the case here. In this particular case, the warrant has also not been executed. Accordingly the legality of detention cannot also be ques--tioned, under section 491, Cr. P. C. In this view of the matter the application is rejected as having been incompetently filed in this Court."
9. Additional Advocate-General was only able to refer to one more case reported as Muhammad Ayub v. Muhammad Yaqub and another (1) and submitted that according to this decision, provisions of section 498, Cr. P C. Only can come into play and give jurisdiction to this Court for its exercise, if offence is cammined within its jurisdiction, and in this case he stated that the alleged offence is committed beyond the jurisdiction of this Court and the applicant is to be arrested within the jurisdiction of this Court therefore, this Court has no jurisdiction. I am afraid I cannot agree with this argument and the interpretation put by the learned Additional Advocate-General because the main question far decision before their Lodership in the above sited was, whether and to what extent section 498 does not incharge categories of persons to whom bail can be granted under sec--tions 496 and 497. The question therefore, which has arisen before me in this case whether this Court has jurisdiction to, grant anticipatory bail to a person for whom warrants of arrest have been issued by Court of a different Province, did not arise before their Lordships of the Supreme Court, therefore, I am of the opinion that this case in no way advances the argument of the Additional Advocate-General with regard to the question of jurisdiction of this Court.
10. Mr. M. Pirzada, counsel for the applicant when called upon to meet the arguments advanced by the Additional Advocate----General and cite some case-law on the subject simply stated that in spite of his efforts he has not been able to lay hand, on a single case in support of his contention that this Court has jurisdiction, except section 498, Cr. P. Code which is as under: - "The amount of every bond executed under this Chapter shall be fixed with due regard to the circumstances of the case and shall not be excessive; and the High Court or Court of Session may, in any case, whether there be an appeal on conviction or not, direct that any person he admitted to bail, or that the bail required by a po4ce officer or Magistrate be reduced."
He laid great emphasis on the second portion of section 498, Cr. P. C. Particularly on the words "in any case" appearing in that section and submitted that the use of these words gives unlimited and unfettered powers to the High Court to give relief to the applicant even before the excitation of the warrants. His arguments were of a general nature. All he submitted was that as the applicant is under genuine apprehension of being arrested and he has surrendered himself before this Court and warrants from the Court of Lahore are yet to be executed within the territorial jurisdiction of this Court; therefore, this Court has jurisdiction to grant him interim bail. With regard to the merits of this case he submitted that the applicant has sworn an affidavit which is materially supported by another affidavit sworn by his wife that he was legally married at Lahore in December 1971 and that the girl has 'seen examined and is It years of age as per medical certificate could not be kidnapped by the applicant and the report filed at Lahore by maternal grand-father and maternal grand-mother is simply false and to humiliate the applicant and his wife before their friends, community member and to extract illegally money from them and he submitted that even on merits interim relief may be granted to the applicant. He further' submitted that the applicant is prepared to furnish reasonable surety in this Court for the purposes of appearance before the Magistrate at Lahore, and to stand trial there.
Apart from the question of jurisdiction raised by the Additional Advocate-General which I will presently answer I am of the opinion that on merits the applicant has made a strong case for grant of interim relief by this Court firstly the facts contained in the application and their affidavits with regard to t the marriage between the applicant and Mst. Parveen, have not been controverted by the Additional Advocate-General and the presumption therefore, is that Mst. Parveen is wedded wife of the applicant; therefore, the question of kidnapping does not arise. Secondly Mst. Parveen has been examined and according to the medical certificate and on appearance she is major and about 18 years of age; therefore, she has reached the age of puberty and is free to marry under the prevailing law, anybody whom she likes without any let or hindrance on the part of the parents, not to say of maternal grand-father and maternal grand-mother who are alleged to have filed criminal complaint at Police Station Gulberg, Lahore. Normally it is the right of the parents to file a case of kidnapping if at all any of their child has been kidnapped by a stranger, but applicant had alleged that the complaint has been filed at Lahore by maternal grand-father and grand-mother and the reason that they wanted to extract money, at least prima facie appears to me to be true particularly so when no copy of the F. I. R. Or of the alleged warrants against them, have been produced before me. The presence of Mst. Parveen on every date of hearing in this Court along with the applicant, although she is a pardanashin lady ends support to her statement at least prima facie that she has married the applicant on her own free will. The applicant is well to do person as stated in the application and is a perma--nent resident of Karachi owning some business concern, is not likely to avoid appearance or otherwise abscond and act as a fugitive from law, he showed his willingness to appear before the Court at Lahore. All he wanted was to be given protection from being humiliated and taken to Lahore under arrest on a R charge which he claims to be absolutely false and baseless.
With regard to objections of Additional Advocate-General that the intended amendment in section 85.Cr. P. C. In the Law Reforms Ordinance (Ordinance XII of 1972) cited above, was to remove the lacuna in the existing law. All I can say is firstly that Ordinance XII of 1972 is yet to be enforced as law; secondly I .Am of the opinion that the intended amendment, does not give new powers to Sessions Court or this Court to give interim bail before arrest to accused person. It only clarifies that in case where no endorsement is made on warrant under section 76. Cr. P. C. The Sessions Judge concerned can release a person on interim bail on furnishing security under section 497, Cr. P. C. In a fit case to enable the applicant to appear before the Court concerned; therefore, even intended amendment does "not give a new and wide power to the criminal Courts to give interim relief to the applicant. This amendment in its intents and Purposes is ancilliary to section 497, Cr. P. Code and not of the nature of giving extended and fresh powers to the Court.
13. It may be argued that the Legislature in fact not only being aware of the existing powers of the criminal Courts relief to the applicants in the circumstances as before me but it intends rather to give more powers to the Courts, which is shown by an additional section 86-A, Cr. P. C. In the Law Reforms Ordi--nance (Ordinance III of 1972) which is as under: -- "Procedure for removal in custody to Tribal Area.--Where a person arrested under section 85 is to be removed in custody to any place in the Tribal Areas, he shall be produced before a Judicial Magistrate within the local limits of whose jurisdiction the arrest was made, and such Magistrate in directing the removal shall hear the case in the same manner and have the same juris--diction and powers, as nearly as may be, including the power to order the production of evidence, as if the person arrested were charged with an offence committed within the jurisdiction of such Judicial Magistrate; and such Magistrate shall direct the removal of the arrested person in custody if he is satisfied that the evidence produced before him raises a strong or probable presumption that the person arrested committed the offence mentioned in the warrant."
From the above new amended section it appears that the Legislature in effect, gives more powers to the Judicial- Courts to grant relief to accused persons who are arrested under section 85, Cr. P.
C. And are to be removed to a place in the Tribal Area. I am therefore, of the opinion that the objection raised by the Addi--tional Advocate-General is of no help to him and in no way goes to show that this Court has no jurisdiction to grant relief to the applicant.
14. The main and perhaps strongest argument with regard to absence of jurisdiction of this Court advanced by Additional Advocate-General was his reliance on the judgment of my learned brother Mr. Justice Muhammad Haleem referred above, wherein it appears, he came to the conclusion that provisions of section 498, Cr. P.C. Will only apply to a case where an offence is committed within the territorial limits of this Court as pres--cribed by para. 3(2) of the High Court Establishment Order, 1970, because the warrants have not been executed. He went a step further by holding that the legality of detention also cannot be questioned under section 491, Cr. P. C. i.e. Even if a warrant has been executed even then this Court has no jurisdiction to grant relief to an applicant who moves a habeas corpus petition under section 491, Cr. P. C. Before giving my reasons to disagree with the point of view taken by my learned brother in the above case although with much regret I may observe, as is apparent from the judgment, that no elaborate arguments were addressed by coun--sel for the parties to enable him perhaps to have a contrary view. After giving my anxious thoughts on the question of jurisdiction of this Court to give relief to an applicant residing within the territorial jurisdiction of this Court under section 498, Cr. P. C. Before his arrest and under section 491, Cr. P.-C. After his arrest I am of the opinion that this Court has jurisdiction to give relief under the above sections to an applicant who presents himself and applies to this Court for grant of interim bail.
15. The powers of this Court to grant bail are mentioned in sections 106, 385, 426, 427, 535, 439, 466, 468, 476, 476-A, 176-8, 479=A, 482, 485, 486, 496, 497, 498, 516, 517, 520, 5260 562 and 563, Cr. P.
Code. Conflict of opinions of various Courts with regard to the extent of the inherent powers in matters of bail under section 561-A, Cr. P. C. Has been it appears set at rest by, their Lordships of the Privy Council in Lala Jairam Do v. King --Emperor (1) where their Lordships have laid down that sections 496 to 502 together with section 426 are and were intended to contain a complete and exhaustive statement of the powers of the High Court in India to grant bail and excluded the existence of any additional inherent powers in a High Court relating to the subject of bail. Section 561-A of the Code conferred no powers, it merely safeguards all the existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice.
16. The powers of the High Court and the Sessions Court under section 498 are of a concurrent jurisdiction of those of the trial Magistrate. Again the jurisdiction of the High Court itself is concurrent with that of the Sessions Court. It has been held that "it is desirable that the ordinary practice should be that the lower Court may first be moved in the matter especially because any expression of opinion by superior Count is likely to prejudice the trial in the lower Court but it is only in the exep--tional circumstances that an application for hail can be moved direct in the higher Court. It has been held in Indar Do v. State (2) that- "To justify such an application it has got to be shown that there were special circumstances which justifed the applicant in not moving the lower Courts but coming direct to the High Court for bail. If no such circumstances exist the application is liable to be rejected . . . . ."
As I have observed earlier that I am of the opinion that there are sufficient circumstances in favour of the applicant to move this Court direct for grant of bail because he would have been arrested by the Police in case he went to his house on -that date, had no relief been granted by this Court because the Police was awaiting for his arrest at his house.
17. The application of section 498, Cr. P. C. May be excluded by the particular provisions of a special law as it was held in Emperor v. Ghulam Kadir (3): "Under section 8 of the Sind Frontier Regulation ' an appli--cation for bail did not lie to the High Court, the Regulation being regarded as a special local law which did not permit the invoking of the provisions of the Code."
In the present case no specific provision exists in the Criminal Procedure Code to the effect that the provisions of section 498, Cr. P. C. Are excluded in, case of a warrant issued by a Magistrate of a different province for the arrest of a person residing in another province, therefore, even by implication it cannot be said that the powers under section 498, Cr. P. C. In the circumstances, are curtailed in any way. Excepting very rare cases even under special laws the Legislature has always been cautious .Not to curtail the powers of High Court with regard to grant of bail to the appli-- cants, that is why even in extradition proceedings in case of arrest under sections 4, 10 and 23 of the Extradition Act, provisions of Criminal Procedure Code to grant bail have been made appli-- cable. Obviously then the High Court in such cases has the juris--diction to grant bail or to give direction to the inquiring Magist--rates to grant bail. The question whether the High Court will have similar jurisdiction in case of an arrest or detention under some other provisions of the Act was held not free from difficulty. In Rudolf Stallman v. Emperor (12 Cr. L .J 358) it was held that "High Court in such cases has power to grant bail. Mr. Justice Woodroffe, however, in 1919 Cal. 444 doubted the jurisdiction of the High Court to grant bail in such cases although the application for bail was disposed of on merits in this case by the Chief Justice and thereby it was impliedly held that the Court had jurisdiction to go into the merits of the application. In Re: Shri Ram Sham 14 Dayol (AIR 1925 Bom. 104) the Bombay High Court gave certain directions to the Magistrate in connection with extradition proceedings. In some cases it was held that the High Court has power to revise the order of the Magistrate under section 439, Cr. P. C. 1n 14 Cr. L J 673, their Lordships of the Calcutta High Court observed: "Notwithstanding section 15 of the Extradition Act ousts the jurisdiction of the High Court to inquire into the propriety of the warrant issued under Chapter III of the Act, where it is sought to justify the order of a Magistrate under the authority supposed to be derived from the law, but, which order was in fact without jurisdiction, it must be assumed that the Magistrate has acted in his general jurisdiction and as such his order is open to revision by the High Court at the instance of the party whose liberty is affected.
18. Whatever be the position with regard to revisional powers of the High Court, the authorities are unanimous that the High Court has jurisdiction to issue writ of habeas corpus to cases arising under the Extradition Act. AIR 1939 Mad. 150 is a case out of many on the point.
19. Even the Pakistan (Exchange of Prisoners) Ordinance, 1948, though Special Act, under section 16 gives powers to the High Court to grant bail. It therefore may not be difficult to deduce, that the general powers of this Court unless and until specifically curtailed by the Legislature, do remain intact and C in fact even in most of the special Acts the Legislature always being conscious of the powers of this Court makes a provision to that effect, examples of the two Acts out of many cited above are in point.
20. To further support my point of view that this Court has jurisdiction to give relief under sections 491 and 498, Cr. P. C., to the applicant who presents himself before this Court and requests, for relief, I rely on P. K. Roy v. The State (AIR 1955 09. 277) a Division Bench decision, in this case a City Magistrate of Srinagar in a case under section 4245, Penal Code, issued warrant for the arrest of petitioner whose address was at 91 Theatre Road, Calcutta and sent the same for execution to the Chief Presidency Magistrate of Calcutta through the Government of West Bengal. As the place was outside the jurisdictional limits of the Chief Presidency Magistrate he forwarded the warrant for execution to the Commissioner of Police and ordered the accused to furnish bail for appearance before the Srinagar Magistrate. Held "(1) the case was governed by section 93-A, and therefore the Chief Presidency Magistrate, not being the issuing Court, had no jurisdiction, as an external Court, to get it executed through the commissioner of Police in a place outside his jurisdiction. The warrant was illegally executed and therefore the subsequent order of the Chief Presidency Magistrate directing the accused to furnish bail for appearance before the City Magistrate, Srinagar, was also bad, (2) that section 83, which conferred jurisdiction on the issuing Court to forward the warrant for execution to the Commissioner of Police did not apply to the case and the Chief Presidency Magistrate as internal Court on receipt of the warrant for eiecution issued by an external Court, had no such jurisdic--tion; (3) that section 186, also did not apply because the Chief Presideney Magistrate in this case did not purport to issue a warrant for aL offence committed beyond his local jurisdiction.
21. From the ratio of this case it appears to me that had the accused been living within the territorial jurisdiction of the Chief Presidency Magistrate, Calcutta his order with regard to endorsement and release of the applicant on bail and appearance at Srinagar would have been upheld by the High Court but due to lack of territorial jurisdiction in the Chief Presidency Magistrate the Court came to the conclusion that the warrant was illegally executed, so was the subsequent order of the Chief Presidency Magistrate for furnishing bail for appearance at Srinagar. This decision in my opinion goes to show that the High Court has the jurisdiction to go into the question of validity and propriety of a warrant issued by a Court of a different Province. If so, then High Court definitely can give relief to p genuine applicant on merits.
22. The next case in point is Tahilram Khanchand v. Emperor (1) a Division Bench decision wherein it was held that: "'Warrant of arrest under section 83, sent by Nasirabad Magistrate (in the then British Baluchistan) to a Magistrate in British India cannot be executed. Such procee4ings if taken can be quashed by the High Court under section 4 1."
In this case the applicant Tahilram Khanchand was arrested under the orders of the Additional District Magistrate, Karachi, purporting to act under provisions of section 86, Criminal Procedure Code on the strength of a warrant issued by the First Class Magistrate, Nasirabad sent to him far being executed. The applicant moved the then Judicial Commissioner's Court at Karachi for relief both under the provisions of section: 491 and 498, Cr. P. C. The proper section however applied in that case as held was section 491, Cr. P. C., because the warrant was executed. The learned Judges on question of jurisdiction came to the conclusion: "We find that there is a patent defect visible in the warrant under which the applicant is being detained in custody, that is to say the warrant purports to have been issued under the provisions of the Criminal Procedure Code by a Court which is outside British India and therefore, it could not be executed by the learned Additional District Magistrate, Karachi. We accordingly set aside the proceedings which have been taken in pursuance of this warrant and direct that the applicant be set at liberty and his bail bond stand cancelled."
23. From this judgment there is no doubt left in my mind that even after the execution of a warrant against an applicant this Court can look into the question of validity or otherwise of the warrant, even though the warrant was issued by a Court of different Province and it can quash the order if it comes to the conclusion that there is inherent jurisdictional or other legal infirmity manifest in the warrant.
24. The next case is reported as Emperor v. Karimbakhsh Rehmat Khan (I) wherein the applicability of sections 82 and 83, Cr. P. C., was considered in a case where a Magistrate exercising jurisdiction in Baluchistan Agency Territories for arrest of a person residing in British India was considered. The Full Bench approved its previous decision in AIR 1938 Sind 46 cited above and held that:- "The Baluchistan Agency Territories are not part of British India, but are areas in which by lease treaty or otherwise the Governor-General-in-Council, not to be replaced by the Crown Representative, has acquired jurisdiction. Hence a Magistrate exercising jurisdiction in those places cannot issue a warrant for the arrest of a person in British India, and require its execution under section 83, Criminal Procedure Code."
25. The next case is reported as In re: Sagarmal Khemraj (2), This is also a Division Bench decision.
In this case a revision application was moved before the High Court against an order passed by Presidency Magistrate Court No. 3, Bombay, directing that the two applicants be forwarded to Calcutta through the Commissioner of Police, Bombay, to stand their trial before the Chief Presidency Magistrate, Calcutta for the charges set out it the warrant. It appears that a robbery was committed in Calcuttf of some currency notes and one of those currency notes with numbers was subsequently, traced to the two applicants and the Bombay Police communicated this fact to the Calcutta Police Thereafter non-bailable warrants were issued by the Chief Presi dency Magistrate of Calcutta on 25th June 1940. Stating that the two applicants stand charged for the offences under section 392
(1) A 19 1941 Sand 20(2) A 19 1940 Bom. 397 I. P. C., that is to say, of robbery. The warrants were addressed to the "O. C. Concerned" and referred to the two applicants merely by their names, the first Sagarmal Khemraj and the other Kaluram Hirachand and in the margin of the warrants there was a note initialled by the Chief Presidence Magistrate, Calcutta to this effect: "Forwarded to the Third Presidency Magistrate, Bombay for favour of execution and return."
26. A Police Officer from Calcutta was therefore, sent to Bombay but he failed to identify the two accused as having had anything to do with the robbery. However, they were arrested because the notes had been traced to them and they were taken before the Presidency Magistrate Court No. 3, who held an enquiry purporting to do so under section 186, Cr: P. C. The police officer concerned with the matter in Bombay gave evidence to the effect that he bad satisfied himself that the two accused were in Bombay on the date of incident Le. I2th June and could there--fore, have taken no part in the robbery at Calcutta. The learned Presidency Magistrate though impressed with the evidence yet ordered that "I am bound to presume that the Chief Prasidency Magistrate, Calcutta, had sufficient grounds before him for issuing this process and that those grounds are riot before me," and accordingly he made the order complained of.
27. The learned Judge after exhaustively discussing the extent and applicably of sections 75 to 86 and 186, Cr. P. C. Went into the question of validity of the warrants issued by the Court at Calcutta and held that - "the warrants issued in this case are not sufficiently definite either in the name of the person to whom the warrant is addressed or in the description of the person to be arrested. That being so, the accused must be released. The property seized in search by the police belonging to the accused to be returned to the accused."
I may quote with benefit at length the observations in this case of Be4umont, C. J. As under "As a matter of fact, sections 85 and 86 do not apply within the City of Bombay, but the provisions of sections 97 to 99, Bombay City Police Act, are substantially in the same terms. It seems to me that the person arrested outside the local limits of the jurisdiction of the Court issuing the warrant has to be taken before a Magistrate or Commissioner or DistACt Super--intendent of Police, and such Magistrate or Commissioner or District Superintendent has to satisfy himself that the person arrested appears to be the person intended by the Court which issued the warrant, and when so satisfied ho is bound to direct the removal of the arrested person in custody to the Court which issued the warrant. In my opinion, the learned Magistrate was not entitled to institute an inquiry under section 186, Criminal P. C. That section deals with the case of a Magistrate seeing reason to believe that any person with a the local limits of his jurisdiction has committed an offence without such limits and in that case he can send the person to the Magistrate having jurisdiction to inquire into the offence. But that section is dealing with a case in which the Court which has jurisdiction, ea has not taken cognizance of the matter, and the offence is brought to the notice of a Magistrate who is not competent to try it, in which case he may send it to a Magistrate who is competent. In my opinion, that section does not override the provisions of sections 75 to 86 to which I have referred, which deal with the execution of warrants of arrest, and the only point, which the Magistrate was entitled to enquire into, was the question whether the arrested persons were those whose arrests were intended by the Chief Presidency Magistrate of Calcutta.
I need hardly point out that the power of directing the arrest of some person at a place outside the local limits of the jurisdic--tion of a Court, particularly when that place is far removed from the local limits, is one which should be exercised with the utmost circumspection. To arrest two merchants of Bombay and take them in custody all the way to Calcutta could only be justified if the Calcutta Court had substantial reason to believe that the Bombay people had committed the offence. The learned Chief Presidency Magistrate of Calcutta is, of course, a very responsi--ble officer, and I am quite sure that he would not act with any lack of a sense of responsibility. We do not know what materials he had before him, but on the materials elicited by the learned Presidency Magistrate, Third Court, Bombay, it does seem diffi--cult to suppose that these arrested persons committed robbery in Calcutta on June 12. Had we thought that the warrants were properly issued, we should probably have released the accused on bail in order to communicate further with the Chief Presidency Magistrate of Calcutta; but I think that if the learned Chief Presidency Magistrate had come to the conclusion that it was necessary that the applicants should be sent under arrest from Bombay to Calcutta, the Court in Bombay would have been bound so to order."
28. For the reasons given above I respectfully agree with the ratio in the weighty judgments cited above and follow them. The result is I hold that this Court has the jurisdiction to grant the applicant relief applied for on the question of jurisdiction as well as on merits. I accept the application and grant anticipatory interim bail to the applicant on furnishing surety in the sum of Rs. 5,000 and P. R.
In the like amount to the satisfaction of the Nazir of this Curt and direct him to appear before the concerned Court at Lahore within 15 days of this order.
29. As I have disagreed with the view taken by my learned brother Mr. Justice Muhammad Haleem for the reasons given above on the question of jurisdiction of this Court although with much regret, let the question of jurisdiction of this Court under sections 498 and 491, Cr. P. C. To grant relief to an applicant before; or after the execution of warrants issued by a Court outside this province, be put before my Lord the Chief Justice for referring it to a larger Bench.