For detailed reasons to be recorded later, this petition for pre-arrest bait under section 498, Cr. P. C., was allowed by short order dated 11th April 1973. I proceed to give the reasons.
2. The grievance made is that the petitioner being a worker of a. Particular political party, on account of facts alleged in paras. 4 and 5 of the petition, is being victimised by involvement in false criminal cases. Instances of several allegedly false cases are mentioned in paras. 6 to 9. In one case, the petitioner was allowed interim bail before arrest by this Court (Criminal Miscellaneous No. 719/B-73) but subsequently, on a statement made on behalf of the State that he was not going to be arrested, then petition was dismissed as withdrawn. Two days later, though, he was arrested in another case. He remained in custody for four days whereafter the learned Sessions Judge allowed him bail. In yet another case, it is. Alleged, the petitioner was arrested and kept in custody for four days and then was released on bail by the same learned Court. It is averred in para. 10 of the petition that the petitioner was in Lahore in connection with his business when he "learnt that the Multan Police has now registered another criminal case under sections 162 and 165-A, P. P. C." against him. It is further alleged that "the Multan Police is also involving the petitioner in a large number of criminal cases in order to harass him, for having different political views than the party in power". In para. 12 of the petition, it is explained that "the petitioner would have moved the learned Sessions Judge, Multan in the matter but it is apprehended that he might be arrested before he has any chance to do so". When the matter came up before me for motion hearing on 10th April 1973, learned counsel further explained that the police being politically motivated against the petitioner, in view of their past tactful conduct, he would not be allowed a chance to move the learned Sessions Court at Multan. It was also stated by him that the petitioner was not aware as to how many other cases have been registered against him. Therefore, this petition for anticipatory bail has been filed directly in the High Court.
3. Serious specific complaints with concrete instances having been made against the police in the petition and the affidavit together with the explanation offered by the learned counsel, in the circumstances of this case, were enough for entertaining and admitting the petition to regular hearing directly in the High Court subject, of course, to any objection by the State. By my order dated 20th April 1973, the learned Advocate---General was asked "to place on record information about the allegations, made in the petition as also information about all the cases in which the-- police wants to arrest the petitioner". The case was adjourned to next day.
4. There was uncertainty (on account of , previous conduct of the police) on the question of apprehension of imminent arrest, therefore, I could not accept the offer of surrender of the petitioner to the custody of this Court ; and if there is no such surrender interim pre-arrest bail' cannot be allowed in law. In these unusual circumstances, in face of a serious apprehension of likelihood of abuse of process of this Court, in order to give effect to the above direction to the learned Advocate General for obtaining information, and otherwise also to secure the ends ,of justice, in exercise of powers of this Court under section 561-A, Cr. P. C.s, I directed that in the meanwhile (i.e., for about 24 hours) if the petitioner stayed at Lahore, "he shall not be arrested". This of course, was done on the learned counsel for the petitioner taking responsibility that the petitioner shall not abscond during this one day's time.
5. At the time of final hearing, though no formal objection has been raised with regard to the procedure adopted by me at the limine stage, it is well-known that this Court has, in a number of cases, followed this practice. Moreover, I am of the view that the direction prohibiting the arrest for very limited period, for the purposes, as are mentioned in section 561-A, Cr. P. C. This course is permissible under the law. If such a protection is not afforded to a petitioner in a case like the present one, there could be a serious possibility (of course, depending upon the circumstances of each case) that when the Court is yet in the process of obtaining information from the State/Advocate-General, the police might frustrate the entire proceedings and this might lead to injustice and/or further complicate the proceedings. Therefore, it is not only for the purpose of giving effect to an order of this Court relating to the collection of material for disposal of a petition pending before it but also for the purpose of preventing the abuse of its process as also for securing the ends of justice that in such like situations, which though would develop only rarely, this Court is competent to pass proper orders and give consequential directions under section 561-A, Cr. P. C.
6. The learned Assistant Advocate-General vehemently opposed the request for pre-arrest bail. He was assisted by an A. S. I. From Multan who had brought the records.
7. It has been asserted on behalf of the State that the police has received more than one complaints of cognizable offences against the petitioner but it might not register all the cases because some of them might not be strong enough for trial while in the case of complaint of one Ghulam Farid they (police) might register a case and arrest the peti--tioner, in connection with which he has already been summoned to appear at the police station but he has not appeared so far to answer the allegations of Ghulam Farid. This position has been adopted by the learned Assistant Advocate-General on instructions given to him by the police.
8. After hearing both the parties, it has become certain that the arrest of the petitioner in the matter of complaint made by Ghulam Farid is imminent and he, for that reason, is under virtual restraint. I am further satisfied that in the circumstances of this case the technique of keeping the formal registration of the case in abeyance has been developed by some ingenius mind in the police investigating agency in an attempt to prevent the Courts exercising jurisdiction, on the technical plea of non-registration of the case' and/or `lack of proof' of imminent arrest. The rule of law as also its arm in this country is not so ineffective as to permit parties frustrate lawful procedures and remedies in this manner. The conditions with their underlying principles laid down by the superior Courts for pre-arrest bail have been misunderstood by the police. The formal registration of a case is not a sine qua non for arrest of an accused and/or for investigation of a cognizable case. Section 54, Cr. P. C., and other provisions in this behalf are ciear and need no comment.
See also Ghulam Muhammad v. Muzammal Khan (PLD1967SC317and Muhammad Hayat v. Chief Settlement and Rehabilitation Commissioner (PLD 1970 Lab. 679For filing of pre-arrest bail petition, it would be enough, notwithstanding the absence of formal registration of the case, issuance of warrants of arrest C. Or other similar formalities, if the arrest is otherwise proved to be imminent and the accused is under virtual physical restraint. This condition as held above, is satisfied in this case.
9. The general principles on pre-arrest bail laid down in precedent law can be found in Muhammad Ayub v. Muhammad Yaqub (PLD 1966 SC1003), Sadiq A.I v. The State (PLD 1966 SC 589), The Crown v. Khushi Muhammad (PLD 1953 FC 170), Muhammad Bashir v. Crown (PLD 1952 Lab. 253) and Hidayat Ullah Khan v. The Crown (PLD 1952 Lab. 21).
10. The main conditions to be satisfied before exercise of jurisdiction to allow pre-arrest bail under section 498, Cr. P. C., are-----
(a) that there should be a genuine proved apprehension of imminent arrest with the effect of virtual restraint on the petitioner ;
(b) that the petitioner should physically surrender to the Court ;
(c) that on account of ulterior motives, particularly on the part of the police, there should be apprehension of harassm ent and undue D irreparable humiliation by means of unjustified arrest ;
(d) that it should be otherwise a fit case on merits for exercise of discretion in favour of the petitioner for the purpose of bail. In this behalf the provisions contained in section 497, Cr. P. C.
Would have' to be kept in mind ;
(e) that unless there is reasonable explanation, the petitioner should) have earlier moved the Sessions Court for the same relief;; under section 498, Cr. P. C.
11. I have already held that there is an apprehension of imminent arrest of the petitioner and he is under virtual restraint. He has, before the arguments started, surrendered to the custody of this Court. Sufficient material has already been noticed to provide prima facie support to the allegation that he is likely to be arrested for ulterior motives. Every person, unless shown otherwise, is presumed to be respectable and, by unjustified arrest he suffers in reputation. The humiliation and harassm ent thus caused is ordinarily irreparable. On merits, there have not been much arguments and it is not at all denied that it is a fit case for bail. Apart from the weaknesses in the complaint of Ghulam Farid including the fact that it is delayed by more than a year, in similar circumstances the petitioner has been allowed bail in other cases by the learned Sessions Court. Thus there is no dispute left with regard to the conditions (a) to (d) enumerated in the preceding paragraph, for grant of anticipatory bail in this case. The remaining condition mentioned at (e) in respect of which serious contest has been raised by the learned Assistant-Advocate----General relates to the failure of the petitioner to move the learned Sessions Court before filing the petition directly in the High Court. He has vehemently contended that it has become a matter of course with the accused persons to file pre-arrest bail applications directly in the --High Court. This not only hinders the progress of investigation but, according to him, is also against the accepted principles that when two Courts have concurrent jurisdiction the subordinate Court should be moved in the first instance so that the superior Court has the advantage of the findings and/or views of the other Court.
12. The question whether it is necessary to move the lower Courts for the same or similar relief before moving the High Court under the Criminal Procedure Code in matters of concurrent jurisdiction has been commented upon in many decided canes. Some of them are quite recent. In Abdul Ghana Khan v. The State (1973 P Cr. L J 163the application for anticipatory bail directly made in the High Court was dismissed on the ground that the Sessions Court had not been moved in the first instance although it was observed that in special circumstances the High Court may exercise its jurisdiction under section 498, Cr. P. C. Despite the fact that lower Court was not so moved.
Though it was observed that all the circum--stances, in which the High Court would exercise this power on a direct application, could not be spelled out, yet one such circumstance was assumed in the observation that "it is not the case of the petitioners that they were at that time in Karachi or that they are ordinarily resident in Karachi or in any other district outside Hyderabad". In Sh.
Muhammad Hussain v. The State (1971 P Cr. L J 1117) it was observed that "no compelling reasons have been shown for not approaching the learned Sessions Judge of the District in the first instance for this purpose. This practice of by-passing the lower Courts is on the increase day by day and to encourage it would be setting an unhappy precedent". Reliance in this ruling was placed on Nasir-ud-Din Shah and another v. The State (PLD 1963 Lab. 516), Riaz Ahmad v. Toba Tek Singh Co-operative Mortgage Bank (1968 P Cr. L J 1940and, an unreported case Muhammad Nawaz v. The State (Criminal Miscellaneous No. 8116 of 1970). The petition was dismissed with an observation that the petitioner might approach the Sessions Court in the first instance. In Syed Mazahir Hussain' Naqvi v. The State (1970 P Cr. L J 188), it was observed that normally the High Court does not directly entertain applications for bail unless in the first place remedy before the Court of Session is exhausted. The cited case, however, was treated as an exceptional one because "the applicants complained that without considering the prima facie aspect of their applications the learned Sessions Judge issued notice to the prosecution "and this, it was --considered "substantially amounted to refuse to exercise jurisdiction in matters of great urgency particularly when respectable citizens are accused of serious crimes". With regard to the procedure adopted by the learned Sessions Judge, in which no protection was afforded to the applicant while issuing notice to the State, it was observed that "if the learned Sessions Judge was to act in this manner as a matter of course, it is quite likely that many deserving applicants might be subjected to arrests and harassm ent". In the case of Nasir-ur-Din Shah (PLD 1963 Lab. 516), the only ground that "the police was on the track of the petitioners" and they "could not approach the local Courts" was not considered as sufficient reason f,)r by-passing the lower Courts in matter of anticipatory bail. In Syed Pir Mohi-ud-Din Lal Badsha v. Emperor (AIR 1938 Lab. 762), a preliminary objection that under section 498, Cr. P. C. Both the Sessions Judge and the High Court having, concurrent jurisdiction the petition for bail should have been moved in -the first instance before the Sessions Judge was noted with the remark that "no direct authority was quoted in support of this objection and counsel was unable to refer to any rule on the subject". Keeping in view the analogy of petitions for revision and petitions for transfer, in which the High Court has concurrent jurisdiction with lower Courts, .The normal rule being that the lower Court should first be moved, it was observed that "although there is no hard and fast rule, it is desirable :that the ordinary practice should certainly be that the lower Court should first be moved and this is particularly desirable in a bail application, where the appropriate Court to deal with the matter is the Court which is going to try the case and where an expression of opinion by a superior Court is likely to prejudice the trial in the lower Courts but it was held that in special circumstances there was no bar to the High Court directly entertaining and deciding a bail matter. In that case the exceptional circumstances, which was considered as sufficient for such a course, was :that the High Court had earlier disposed of a bail matter in the same case. Almost to the same effect are two cases from foreign jurisdiction: Indar Dass v. State (AIR 1951 Him. Pra. 31and Abdul Karim Khan v. State of Madhya Pradesh (AIR 1960 Madh. Pra. 54).
Reference may also be made to Note No. 2 under rule 14 .Of Chapter 10 of Rules and Orders of Lahore High Court, Volume III, wherein it is specifically noted that "except in very special cases, the Judges of the High Court decline to entertain applications for bail unless the Sessions Judge or the Court trying the case has already been applied to and has rejected application."
13. As in the case of Syed Pir Mohi-ud-Dan Lal Badshah reference is made to other matters subject to concurrent jurisdiction of two Courts under the Criminal Procedure Code, therefore, it will not be out of place to cite the following cases in which it was held that the High Court would not normally exercise revisional jurisdiction if the Sessions Judge or the District Magistrate having concurrent jurisdiction has not been moved tin the first instance:-- Muhammad Ehsan v. The State PLD 1968 Lah. 451 ; Muhammad Farooq v. Rais Hassan Khan PLD 1960 Kar. 42 ; Shah Zillur Rahman Mutawalli v. The State PLD 1959 Dacca 192 ; Debi Singh and others v. Emperor through Raj Kumar Singh AIR 1941 Oudh 268 and Muhammad Hashim v. Notified Area Moghal Sara! AIR 1933 All. 283.
Same principle, on basis of the reasoning in the above precedent law, should apply also to petitions filed directly in the High Court under sections 491 and 526, Cr. P. C. When same or similar remedy is available before the lower Courts under section 100 and/or sections 552 and 528, Cr. P. C.
But it needs to be noticed that this principle has not been consistently followed in old precedent law particularly in the petitions under section 491 vis-a-vis remedy under sections 100 and 552, Cr.
P. C. Or under Guardians and Wards Act. In matters qua petitions for transfer undersection 526, Cr.
P. C., even the High Court Rules and Orders, Volume III, Chapter 26-A, rule 2, as amended up-to- date, emphasize that filing of transfer application under section 528, Cr. P. C. Before a lower Court "will serve as a check on frivolous applications for transfer which areat times made to High Court merely to delay the case and defeat the ends of Justice". The recent practice of this Court however, in all these matters particularly since parties have started moving frivolous petitions directly in the High Court, is to insist on the petitioner moving the lower Court if the same remedy is available under the law, unless, of course, there is a reasonable explanation to depart from this practice or the case is of exceptional nature. In transfer matters, however, sometimes the circumstance that the Magistrate trying the case is not obliged to stay the proceedings (if the information conveyed to him is for moving the District Magistrate) is treated as a good explanation for not filing an application under section 528, Cr. P. C. In the first instance. The sum total of the above discussion is that in all these matters the usual principle, namely, that ordinarily where there is concurrent jurisdiction vested in two Courts, it is proper in the first instance to approach the Court of inferior jurisdiction for relief before applying to the higher Court, would apply. I have intentionally avoided discussing the same principle qua the extraordinary and constitutional jurisdiction of this Court or of the Supreme Court. The two relevant subjects for discussion could be exercise of writ jurisdiction by the High Court when other available remedy has not been availed of and the original jurisdiction of the Supreme Court to enforce fundamental rights when the High Court is not moved in the first instance for the same relief. On the latter aspect, the Supreme Court of India in slightly different circumstances, in the case of M. K. Gopalan v. State of Madhya Pradesh (AIR1954SC36;) has deprecated the practice of a direct approach to it tinder Article 32, except when there are good reasons for so doing.
14. After carefully considering the legal objection raised by the learned Assistant Advocate-General and going through the case-law on this point and taking note of the recent trend followed by this Court, I am of the view that a petition, relating to any matter in which a lower Court has concurrent or same jurisdiction under the Criminal Procedure Code, shall not ordinarily be entertained directly by this Court. The exceptional circum--stances, in which petitions might directly be entertained in the High Court, would depend upon several factors which might be of general type or those relating to a particular case. The general factors might, amongst others, include war, natural disasters and calamities, general political unrest including riots and socio-economic upheaval which might further include disturbance of lawful authority of temporary failure thereof. These general considerations from their very nature, it is clear would be relevant and material only very rarely. In ordinary times, the factors relatable to particular circumstances of each case would have to be considered in order to find out whether it (case) is so exceptional as to warrant to direct move, by petition, in the High Court. All of these factors cannot be enumerated nor can they be laid down with any exact specification. But it will not be out of place to visualise some broad outlines in this behalf, for example :-------
(a) where the High Court has earlier dealt with any matter which has p direct relevancy to the subject-matter of the petition (for bail, revision, etc.) filed in the High Court, the petitioner might not be compelled to first move the lower Court of concurrent jurisdiction ;
(b) where the presiding officer of the lower Court is not available and his substitute it is either difficult to locate or even if locatable is unable to give substantial relief in a matter ; as sometimes, it happens when the Sessions Judge is on leave and the District Magistrate is exercising some of his powers under the Criminal Procedure Code ;
(c) where the Presiding Officer of the lower Court for any personal disqualification is unable to deal with the matter and during the time that the matter goes before another presiding officer of co-- ordinate jurisdiction, there might be likelihood of irreparable damage or loss to the petitioner ;
(d) where the petitioner is physically incapacitated to go to the Court concerned and seek redress ; e.g., if a person is ill or under genuine fear of bodily harm and travel up to the lower Court concerned is not without serious peril to his person he may move the High Court directly ;
(e) if there is serious and genuine apprehension of political victimisation at any level and the atmosphere at the lower Court level is so vitiated against the petitioner that the lower Court would be embarrassed or prevented from giving relief, the High Court may be moved, directly instead of an approach to the lower Court ;
(f) where the case is such that it combines several questions in some off which the High Court and the lower Court have concurrent jurisdiction but in others, the lower Courts have no jurisdiction ; e.g., if the matter requires exercise of jurisdiction under any specific provision of Criminal Procedure Code as also under the inherent power of the High Court under section 561-A the matter may directly be moved in the High Court ;
(g) where cases are spread over several districts and/or there is dispute or doubt about jurisdiction.
As earlier emphasized, the above situations are neither of general applica--t4on nor they exhaust the list. In a particular case, even if prima facie any one of these consideration is attracted, its peculiar circumstances might still not justify filing a direct petition in the High Court. It is further clarified that the above attempt at giving certain examples should not and cannot be treated as laying down the conditions to be applicable to every case. In each petition in these matters to be filed directly in the High Court, it would be for the party and the counsel to give reasonable and acceptable explanation in the circumstances of that case for not moving a lower Court in the first instance. In this behalf I cannot do better than refer to the following observations by their Lordships of the Supreme Court in bail matters :---- "Of late, we have witnessed a growing tendency of applications for bail and anticipatory bail being brought in the High Court and the Supreme Court almost as a matter of routine. As repeatedly laid down by this Court, grant or refusal of bail in non-bailable cases is a matter of discretion with the primary Court, which is inquiring into or trying the case."
See Nisar Ahmad v. The State (PLD1971SC174). It is unfortunate that in some cases the above observation, which can' also be treated as a warning, is not being paid full attention by some parties and their learned counsel while moving the petitions for bail before or after arrest.
15. In this case, there are three important circumstances which have weighed with me to treat it as an exceptional one and decide it on merits, despite the fact that the learned Sessions Court has not been moved. They are;---
(i) The background of the case, particularly that aspect of it which shows that the police has been carefully watching the attempts of the petitioner in securing bail orders and then arresting him soon thereafter in fresh cases with the result and effect so as to effectively prevent him from approaching the Court well in time for making an application for anticipatory bail. In two matters, the police succeeded in keeping him in custody for four days each. This coupled with the allegations made in the petition, show that it might be a case of political victimization, and serious doubts in this behalf undoubtedly have arisen about the conduct of the police ;
(ii) The petitioner was at Lahore when he learnt about the case in' which he has sought bail before arrest. Again keeping in view the background and the facts of the case as disclosed by the learned Assistant Advocate-general, I have come to the conclusion that m this case there is a serious apprehension that if the petitioner goes to Multan to file a bail. Petition his effect will be frustrated by arresting him before he is able to do so ;
(iii) As has been demonstrated from the information laid before this Court with regard to the present position of the police, when the petitioner moved this Court, it was impossible for him to have ascertained the actual position of registration or otherwise of the case and/or the intention of the police to arrest him. There being serious allegation of political victimisation, if the, petitioner would have moved the Sessions Judge and for any technical reason he was unable to give him protection of interim bail, it would not have been possible for him to protect the petitioner against apprehend--ed arrest as he had no such inherent power as was exercised by this Court under section 561-A, Cr. P. C.
16. For the above reason, I overrule the objection raised by the Assistant Advocate-General and hold that in this case there are sufficient reasons to treat it as an exceptional one so as to consider and decide the petition for anticipatory bail directly in the High Court, despite the fact that the petitioner has not moved the learned Sessions Court in the first instance.
17. As all the conditions for grant of anticipatory bail were satisfied in this case, therefore the same was allowed to the petitioner by my order dated 11-4-1973.
18. It needs to be observed that as this order has been passed in bail proceedings, therefore, nothing said therein shall influence the decision on merits of the case by the learned trial Court, which obviously will have to be based on the evidence that would be led before it.
…and 14 more citing cases