1. ' The applicants are facing trial for the offences punishable under section 302/34, P.P.0 in the Court of learned Ind Additional Sessions Judge, Nawabshah.
2. ' The relevant facts are that the complainant Ahmed Khan lodged F.I.R. At Taluka Police Station Nawabshah on 4-5-2001 at 15-00 hours, alleging that at 13-45 hours, applicants Gul Bahar and Gulzar caught hold of Din Muhammad brother of complainant from his arms and co-accused Ghulam Rasool, their third brother, stabbed Din Muhammad with dagger, which hit Din Muhammad on left side of his heart. The victim succumbed to his injuries on way to Civil Hospital, Nawabshah.
3. ' Learned counsel for the applicant has submitted that the applicants were empty-handed and they have not caused any injury to the deceased and the question of their vicarious liability is a matter of further inquiry, which is to be determined at the trial. He has further submitted-that the applicants were initially arrested but were released on bail under section 497, Cr.P.C. By the S.H.O., and at the time of submission of challan in Court, they were re-arrested and remanded to custody.
4. He has argued that when the S.H.O. Deemed it, a fit case for grant of bail, the applicants are entitled to be released on bail.
5. ' In support of his contentions, that, when no active role is attributed to an accused person and there is a question of vicarious liability only, it is a case of further inquiry and the accused should be released on bail, the learned counsel for the applicant has placed reliance on the following judgments:--
(1) 2000 PLJ 578; (2) 2000 M LD 1193; (3) 2001 PCr.LJ 1707 (4) 2002 M LD 9.
6. ' On the other hand, the learned A.A.-G. Has opposed the bail application contending that F.I.R. Has been promptly lodged ,and the present applicants have been attributed active role in the commission of murder. He has submitted that it is specifically stated in the F.I.R. That the present applicants caught hold of the deceased and their third brother accused Ghulam Rasool gave fatal blow to the deceased with the dagger. The learned A.A.-G. Has submitted that if the present applicants would not have caught hold of the deceased, their third brother Ghulam Rasool would not have committed the murder with such ease and comfort. He has contended that the present applicants facilitated the commission of murder by their overt act of making the deceased helpless and as such it cannot be said that no overt act is attributed to the present applicants. In support of his contention he has placed reliance on the judgment, reported as 1999 PCr.LJ 343.
7. ' I have considered the contentions, raised by the learned Advocates and have perused the judgment on which the learned Advocates have placed reliance. So far the role assigned to the present applicants is concerned, there is no dispute, that, according to the F.I.R. The present applicants caught hold of the deceased and their third brother accused Ghulam Rasool, who was accompanying them, gave dagger blow to the deceased which proved to be fatal. Thus, the only point for consideration is, whether on the basis of the allegations in F.I.R., the applicants have been attributed active role for the commission of murder or not. I am persuaded to agree with the submissions of learned A.A.-G. And the ratio of judgment, reported as 1999 PCr.LJ 343. So far the judgments, on which learned counsel for the applicants has placed reliance, are concerned, they are not attracted to the facts of the present case, because the facts of the cited case are distinguishable.
8. ' I am of the considered opinion, that, if the present applicants would not have made the deceased helpless, by holding him from his arms, the third brother of applicants would not have succeeded so easily in committing the murder. The role attributed to the present applicants can be termed as an active role in commission of murder and it clearly amounts to facilitating the commission of murder. There is no ambiguity in the role assigned to the present applicants and there is no question of any further inquiry as envisaged in section 497(2), Cr.P.C.
9. ' It appears that subsection (2) of section 497, Cr.P.C. Is the most misinterpreted and most misapplied provision in the entire Criminal Procedure Code. It provides that, "if it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed non-bailable offence, but, there are sufficient grounds for further inquiry into his guilt, the accused, shall, pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
10. ' A bare perusal of the above provision shows that the condition precedent for invoking this provision is that it should appear to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are no reasonable grounds for believing that the accused has committed non-bailable offence, and on the fulfilment of this condition only this provision can be invoked. It appears that merely second part of subsection (2) of section 497, Cr.P.C. Is normally considered, which is against all the principles of the interpretations of statutes. It is an established principle of the interpretation of the statutes that no section is to be considered ignoring the other provisions of section. It is also established principle of the interpretation of statutes, that every section of a law, is to be considered in the totality of the scheme and keeping in view all other relevant provisions, and not in isolation likewise, any part of a section, ignoring the other parts of the section, are not to be considered or applied without keeping in view the entire section in totality.
11. ' Now reverting to subsection (2) of section 497, Cr.P.C. I find that it provides that after fulfillment of the condition precedent, that, there are no reasonable grounds for believing that the accused has committed a non-bailable offence, it has to be examined if there are sufficient grounds of further inquiry into his guilt, and if so, the accused shall, pending such inquiry, be released on bail, or at the discretion of the such officer or Court on the execution by him a bond without sureties for his appearance as provided in subsection (1). The illustration of such situation may be when an accused person is produced before the Court by police seeking remand and the Court is of the opinion that by that time there is no material with the police from which reasonable grounds may be inferred for believing that he has committed the non-bailable offence, he may be released on bail or furnishing surety bond, provided there are sufficient grounds for further inquiry into his guilt.
12. It means, that, if there are no reasonable grounds for believing that the accused has committed the non-bailable offence, he shall not be kept in detention/ custody but he shall not be absolved finally of the allegations, if the prosecution can show that there are sufficient grounds for further inquiry into the guilt and pending such further inquiry, he shall be merely released on bail or on furnishing bond without sureties for his appearance in inquiry or trial. This provision has been enacted to maintain the balance, keeping in view the liberty of a person, as well as, for providing opportunity to the prosecution to hold further inquiry into the guilt of the person alleged to have committed the non-bailable offence. This provision is not meant for application, when there are reasonable grounds for believing, that, an accused person has committed a non-bailable offence.
13. The way in which subsection (2) of section 497 is being applied, it makes the provisions contained in subsection (1) of section 497, redundant, nugatory and inoperative. It is specifically provided in subsection (1) of section 497, Cr.P.C., that when any person accused of any non-bailable offence is arrested or detained without warrant by an offence is arrested or detained without warrant by an Officer Incharge of police station or appears or is brought before a Court he may be released on bail, but he shall not be so released if their appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. (underlining is mine). Now if there are reasonable grounds for believing that an accused person is guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years and such person is released on bail merely for the reason that there are grounds for further inquiry, without adverting to the fact that there are no reasonable grounds for believing that the accused had committed the non-bailable offence, then it cannot be done without doing violence to the language of law.
14. ' However, the above discussion does not mean that any person alleged of having committed non- bailable offences is not to be released on bail. It only means that before releasing the accused on bail, the Court is require to apply its mind keeping in view the provisions contained in subsection (1) of section 497 and subsection (2) of-section 497, Cr.P.C. In its totality and the sine qua non, for releasing the accused on bail is that the Court should come to the conclusion that there are no reasonable grounds to believe that he has committed a non-bailable offence as provided in subsections (1) and (2) of section 497, or to prevent the abuse of the process of Court or to do justice, keeping in view the particular B facts of each case. The bail in the cases of commission of non-bailable offences and particularly falling in the prohibitory clause in subsection (I) of section 497, Cr.P.C. Is not to be granted as a matter of course, with a simple sentence that it is a case of further inquiry and without keeping in view the entire provisions of section 497, Cr.P.C. As discussed above.
15. Applying the above principles to the facts of the present case I find that according to the F.I.R. a very active role has been attributed to the present applicants, whereby they made the victim helpless and facilitated the third accused to take away the life of deceased just with one dagger blow which the third accused could land at any point at his will. The single dagger blow given by the third accused landed at the heart of the deceased and it became sufficient to cause his death.
16. If the present two applicants would not have made the deceased helpless, he could have resisted, he could have struggled to save his life, he could push the assailant, he could have snatched dagger, he could have run away from the place of incident and in the process he might have received minor injuries or at the most such injuries which would not have been fatal. All this could not be done because the present two applicants caught hold of the deceased making him a total prey to the design of third accused and the innocent sole was done to death. The only tentative assessm ent which can be made at this stage is that the applicants acted in 'furtherance of the common intention of all. If such act cannot be termed as active role in the commission of murder of deceased, then hardly there can be any other act which can be termed as active role in the commission of murder. By virtue of provision contained in section 34, P.P.C. Each person is liable for criminal act done in furtherance of common intention of all, as if it was done by each one of them alone.
17. For the foregoing reasons I am of the opinion that it is not a fit case for bail and consequently, the bail application stands dismissed.
18. ' Before parting with this order, I would like to clarify that all the observations made in this order are tentative in nature and shall have no bearing on the final disposal of the case by the trial Court. The trial Court should decide the case on the basis of evidence brought on record at the time of trial without being influenced by any observation contained in this order.