(a) Supreme Court formulated the principles in relation to furnishing a bond under section 91, Cr.P.C, when an accused had been summoned by the Trial Court under section 204, Cr.P.C. to face trial in connection with a private complaint…) ---Police Rules (1934), Rr. 24.1, 24.4, 24.7, 25.2(1), 25.2(2), 25.2(3), 26.1, 26.2 & 26.9---Arrest of accused during investigation---Not necessary---Even in cases of the most heinous offences the police was under no statutory obligation to necessarily and straightaway arrest an accused person during an investigation as long as he was joining the investigation and was cooperating with the same.
(b) Supreme Court formulated the following principles in relation to furnishing a bond under section 91, Cr.P.C, when an accused had been summoned by the Trial Court under section 204, Cr.P.C. to face trial in connection with a private complaint:
(i) Issuance of process by a court through summons for appearance of an accused person before the court neither amounted to arrest of the accused person nor it could ipso facto give rise to an apprehension of arrest on his part and, thus, such accused person could not apply for pre-arrest bail.
(ii) A process was issued to an accused person under section 204, Cr.P.C. when the court taking cognizance of the offence was of the "opinion" that there was "sufficient ground" for "proceeding" against the accused person. Opinion of a court about availability of sufficient ground for proceeding against an accused person could not be equated with appearance of "reasonable grounds" to the court for "believing" that he "has been guilty" of an offence within the contemplation of section 497(1), Cr.P.C. Due to such differences in the words used in section 204 and section 497, Cr.P.C. the intent of the legislature became apparent that the provisions of section 91, Cr.P.C. and section 497, Cr.P.C. were meant to cater for different situations.
(iii) If the court issuing process against an accused person decided to issue summons for appearance of the accused before it then the intention of the court was not to put the accused person under any restraint at that stage. If the accused person appeared before the court in response to the summons issued for his appearance then the court may require him to execute a bond, with or without sureties, so as to ensure his future appearance before the court as and when required.
(iv) If in response to the summons issued for his appearance the accused person appeared before the court but failed to submit the requisite bond for his future appearance to the satisfaction of the court or to provide the required sureties then the accused person may be committed by the court to custody till he submitted the requisite bond or provided the required sureties.
(v) If the process issued by a court against an accused person under section 204, Cr.P.C. was through a warrant, bailable or nonbailable, then the accused person may be under some kind or form of restraint and, therefore, he may apply for his pre-arrest bail if he so choose which may or may not be granted by the court depending upon the circumstances of the case, but even in such a case upon appearance of the accused person before the court he may, in the discretion of the court, be required by the court to execute a bond for his future appearance, with or without sureties, obviating the requirement of bail.
SARWAR and others vs. The State
and others
(2014 SCMR 1762)
Mian Saqib Nisar, Asif Saeed Khan
Khosa, Sh. Azmat Saeed, Iqbal
Hameedur Rahman and Dost
Muhammad Khan, JJ
Criminal Appeal No. 19 of 2012
(Against the order dated 05.07.2011 passed by the Lahore High Court, Lahore in
Criminal Miscellaneous No. 7821-B of 2011)
Asif Saeed Khan Khosa, J.: The question as to whether after
having been summoned by a trial court under section 204, Cr.P.C. to
face a trial in connection with a private complaint the person so
summoned is required only to furnish a bond, with or without
sureties, under section 91, Cr.P.C. for his future appearance before
the trial court or he is to apply for pre-arrest bail under section 498,
Cr.P.C. is a question which has remained a subject of some
controversy in the past and, therefore, on 20.01.2012 this Court had
granted leave to appeal in some of the present matters so that the
issue may be conclusively resolved through an authoritative
pronouncement. The leave granting order (reported as 2012 SCMR
1912) passed by a 5-member Bench of this Court reads as follows:
“The question involved in these petitions is as to whether
upon his summoning by a trial Court in a case arising out of a
private complaint an accused person needs to apply for bail in terms
of sections 496, 497 and 498, Cr.P.C. or in such a situation he is
only to submit a bond for his appearance before the trial Court under
section 91, Cr.P.C. It appears that in different judgments different
notes have been struck by this Court on the subject and a reference
in this respect may be made to the cases of Syed Muhammad Firdaus
and others v. The State (2005 SCMR 784), Luqman Ali v. Hazaro and
another (2010 SCMR 611) and Criminal Appeal No. 56 of 1986
(Raham Dad v. Syed Mazhar Hussain Shah) decided by this Court on
14-1-1987). At different times different High Courts had also
rendered conflicting judgments on the issue. It is, therefore,
imperative that such conflicts should be removed or resolved at the
earliest so as to restore certainty in the matter for the guidance of all
the courts in the country. In this view of the matter leave to appeal is
granted in both these petitions and the Office is directed to fix the
appeals for regular hearing at the earliest possible, preferably within
a period of one month. The petitioners in Criminal Petition No. 549-L
of 2011 have already been admitted to ad-interim pre-arrest bail by
this Court vide order dated 11-8-2011. Their ad-interim pre-arrest
bail shall continue till the next date of hearing.”
2. In view of the legal controversy at hand we have deemed it
appropriate to resolve the legal issue first and then to leave the
present appeals and petitions to be decided by appropriate Benches of
this Court on the basis of their respective merits in the light of the law
declared through the present judgment.
3. We have heard the learned counsel for the parties, some of the
parties appearing in person and the learned Additional ProsecutorsGeneral, Punjab appearing for the State at some length and have also
attended to and perused the statutory provisions and the precedent
cases referred to and relied upon by them in support of their
respective submissions.
4. For a proper resolution of the legal question involved it may be
advantageous to reproduce the following legal provisions of the Code
of Criminal Procedure, 1898 relevant to the issue:
91. Power to take bond for appearance. When any person for
whose appearance or arrest the officer presiding in any Court is
empowered to issue a summons or warrant, is present in such Court,
such officer may require such person to execute a bond, with or
without sureties, for his appearance in such Court.
204. Issue of process. (1) 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. -------------
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496. In what cases bail to be taken. When any person other than
a person accused of a non-bailable offence is arrested or detained
without warrant by an officer in charge of a police station or appears
or is brought before a Court, and is prepared at any time while in the
custody of such officer or at any stage of the proceedings before such
Court to give bail, such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may,
instead of taking bail from such person, discharge him on his
executing a bond without sureties for his appearance as hereinafter
provided:
Provided further that nothing in this section shall be deemed
to affect the provisions of section 107, sub-section (4), or section 117,
sub-section (3).
497. When bail may be taken in case of non-bailable offence. (1)
When any person accused of any non-bailable offence is arrested or
detained without warrant by an officer in charge of a police station,
or appears or is brought before a Court, he may be released on bail,
but he shall not be so released if there appear reasonable grounds for
believing that he has been guilty of an offence punishable with death
or imprisonment for life or imprisonment for ten years: -----------------
----
(2) 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 a
non-bailable offence, but that 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. ---------------------
498. Power to direct admission to bail or reduction of bail. 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 be admitted to bail, or that the bail required by a police officer
or Magistrate be reduced.
498-A. No bail to be granted to a person not in custody, in Court
or against whom no case is registered, etc. Nothing in section 497
or section 498 shall be deemed to require or authorize a Court to
release on bail, or to direct to be admitted to bail, any person who is
not in custody or is not present in Court or against whom no case
stands registered for the time being and an order for the release of a
person on bail, or a direction that a person be admitted to bail, shall
be effective only in respect of the case that so stands registered
against him and is specified in the order or direction.
5. Before embarking upon any discussion on the legal issue
involved in these matters it may also be useful to refer to all the
reported cases on both sides of the legal divide. The reported cases on
the subject can be divided into two categories, the first category of
cases is that wherein it was held that after having been summoned by
a trial court to face a trial in connection with a private complaint the
person so summoned is required only to furnish a bond, with or
without sureties, under section 91, Cr.P.C. for his future appearance
before the trial court and in the second category of cases it was held
that such person is to apply for pre-arrest bail under section 498,
Cr.P.C. failing which he is to be taken into custody and lodged in jail
6. In the first category of cases, i.e., the category of cases wherein
it was held that after having been summoned by a trial court to face a
trial in connection with a private complaint the person so summoned
is required only to furnish a bond, with or without sureties, under
section 91, Cr.P.C. for his future appearance before the trial court the
pioneering and groundbreaking case was the case of Mazhar Hussain
Shah v. The State (1986 P.Cr.L.J. 2359). In that case while seized of a
private complaint a Sessions Judge recorded the statement of the
complainant and the evidence produced at the preliminary stage and
then issued process against the accused persons under section 204,
Cr.P.C. In response to the summonses issued by the Sessions Judge
the accused persons appeared before the Sessions Judge and filed
applications for pre-arrest bail but the same were dismissed by the
Sessions Judge with the observation that it was not a fit case for prearrest bail. The accused persons then approached the Lahore High
Court, Lahore for the desired relief and Muhammad Rafiq Tarar, J.
admitted the said accused persons to pre-arrest bail and observed as
follows:
“3. Section 204, Cr.P.C. provides that if the Court taking
cognizance of an offence is of the opinion that there is sufficient
ground for proceeding, it shall issue a summons if the case appears
to be one in which, according to the fourth column of the Second
Schedule, summons should issue in the first instance but 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 ....................
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