Difference between the appellate jurisdiction of the Supreme Court under Article 185 (3) of the constitution in bail matters and the original jurisdiction of the High Court under Section 498 CrPC to grant bail highlighted.

Section 498, CrPC confers original and concurrent jurisdiction on the High Court and Court of Session to grant bail, by stating that “the High Court or Court of Session may in any case…direct that any person be admitted to bail”. That is why when a trial court, for instance, a Court of Magistrate, declines to grant post arrest bail under Section 497, CrPC to a person accused of having committed a non-bailable offence, the accused files a fresh petition under Section 498, CrPC in the Court of Session and, in case of failure to obtain the relief once again approaches the High Court. The Court of Session and the High Court have original jurisdiction to grant bail and they make their own independent orders on the said petitions without commenting upon and setting aside the order of the trial court. The power of the High Court and the Court of Session, under Section 498 CrPC, to grant post arrest bail is thus co-extensive and concurrent with that of the trial court under Section 497 CrPC, while the power to grant pre-arrest bail under the said Section is exclusive to them.

The appellate jurisdiction of this Court, under Article 185(3), in bail matters is quite distinct from the original jurisdiction of the High Court and Court of Session under Section 498, CrPC. The essential criterion of appellate jurisdiction is that it examines and if required corrects the errors, if any, of a lower forum. That being the nature of appellate jurisdiction, this Court examines the legality of the orders passed by the High Court in bail matters and corrects those orders in appellate jurisdiction under Article 185 (3) of the Constitution only when it finds that the High Court has exercised the discretion in granting or declining bail arbitrarily, perversely or contrary to the settled principles of law, regulating bail matters.

Crl.P.1050-L/2020
Muhammad Nawaz v. The State, etc
Mr. Justice Syed Mansoor Ali Shah
29-07-2021
26-07-2021