The sole question that needs consideration and determination by us, in the present case, is: whether an accused person may be treated as a hardened, desperate or dangerous criminal, within the meaning of that expression as used in the fourth proviso to Section 497(1) CrPC, on the basis of the facts and circumstances of the case, when he applies for bail on the statutory ground of delay in conclusion of the trial, or there must necessarily be some previous criminal record of the accused to form such an opinion by the court about him.
Condition (i) denies the relief of statutory bail to the accused because of his previous conviction for an offence punishable with death or life imprisonment. Condition (iii) is also self-explanatory and is attracted when the petitioner is accused of an act of terrorism punishable with death or imprisonment for life. So while condition (i) is about the past conviction of the accused and condition (iii) deals with the specific act of terrorism, it is condition (ii) which allows the court to make a contemporary assessment of the character of the accused to arrive at an opinion whether he is a hardened, desperate or dangerous criminal.
The word “criminal” in the phrase “hardened, desperate or dangerous criminal” of the fourth proviso to Section 497(1) CrPC, as held by a five member bench of this Court in Moundar v. State, is not to be construed in the technical sense for a person who has been adjudged guilty of a charge in a Court of law, i.e., a convicted person; it has rather been used in its ordinary sense for a person who violates the law of the land and is accused of committing a crime. Further, the fourth proviso to section 497(1) CrPC deals with the previously convicted offenders separately. Therefore, in order to bring an accused within the compass of a hardened, desperate or dangerous criminal, it is not necessary to prove that he has a previous criminal record of conviction. It is thus obvious that the previous criminal record of convictions or of pendency of other criminal cases, though may be taken into consideration as a supporting material, is not an exclusive deciding factor to form an opinion as to whether the accused is a hardened, desperate or dangerous criminal. Such an opinion is to be formed by the court mainly on basis of the facts and circumstances of the case, borne out from the material available on record, wherein the bail is applied on the ground of delay in conclusion of the trial, by considering inter alia, the nature of the offence involved, its effects on the victims or the society at large, the role attributed to the accused, the manner in which the offence was committed and the conduct of the accused. Needless to mention that the formation and recording of such opinion as to the character of the accused, like the opinion as to reasonable grounds for believing his involvement in the commission of the offence, is of tentative nature, and is thus open to reexamination and final determination on conclusion of the trial.
The meaning and scope of the phrase “hardened, desperate or dangerous criminal” have also been explained in Shakeel Shah, wherein this Court held that the words “hardened, desperate or dangerous” point towards a person who is likely to seriously injure and hurt others without caring for the consequences of his violent act and can pose a serious threat to the society if set free on bail, and such tentative opinion as to the character of the accused is to be formed by the court upon careful examination of the facts and circumstances of the case. We are of the considered view that the court may also refer to any previous criminal record, if available, for forming such opinion but it matters little if the accused does not have a previous criminal record. The very gravity and severity of the act alleged to have been committed by the accused, even though for the first time, may be sufficient to attract the fourth proviso to section 497(1) Cr.P.C. in the peculiar facts and circumstances of a case and may lead the court to form opinion that the accused is a hardened, desperate or a dangerous criminal.
Bail After Arrest
Crl.P.440/2022 Allah Wasaya v. The State through Prosecutor General Punjab and another
Mr. Justice Syed Mansoor Ali Shah
22-06-2022
 CrPC..){kind=link}
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