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 Bail to woman accused.

Scope and extent of the first proviso to section 497(1) Crpc.

The first part of Section 497(1) CrPC provides that if a person accused of a non-bailable offence is arrested, he may be released on bail. Because of the enabling expression, “may be released on bail”, used in this part, read with the basic principles of criminal justice,1 the grant of bail in a non-bailable offence that does not fall within the second part of Section 497(1) CrPC is said to be a rule and refusal, an exception. The second part of Section 497(1) CrPC provides that an accused shall not be released on bail 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. This part of Section 497(1) CrPC which prohibits the grant of bail in certain offences is popularly known as the prohibitory clause of Section 497(1) CrPC.

However, the first proviso to Section 497(1) CrPC provides that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail. The expression “such an offence” used in this proviso refers to the offence mentioned in the second part (prohibitory clause) of Section 497(1) CrPC, as for all other non-bailable offences the Court is already empowered to release the accused on bail under the first part of Section 497(1) CrPC. The first proviso has thus made equal the power of the Court to grant bail in the offences of prohibitory clause alleged against an accused under the age of sixteen years, a woman accused and a sick or infirm accused, to its power under the first part of Section 497(1) CrPC.

This means that in cases of women, etc., as mentioned in the first proviso to Section 497(1), irrespective of the category of the offence, bail is to be granted as a rule and refused as an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of Section 497(1) CrPC. .

The exceptions for refusing bail in offences that do not fall within the prohibitory clause of Section 497(1) CrPC are therefore also applicable to the accused who pray for bail under the first proviso to Section 497(1) CrPC in an offence falling within the prohibitory clause. These exceptions are well settled by several judgements3 of this Court. They are likelihood of the accused: (a) to abscond to escape trial; (b) to tamper with the prosecution evidence or influence the prosecution witnesses to obstruct the course of justice; or (c) to repeat the offence keeping in view his previous criminal record, nature of the offence or the desperate manner in which he has prima facie acted in the commission of offence.

Bail After Arrest
Crl.P.910/2022
Mst. Tahira Batool v. The State thr. A.G. Islamabad and another
Mr. Justice Syed Mansoor Ali Shah
19-08-2022.