Scope and extent of section 5(6) of the said Ordinance and the constitutional jurisdiction of the High Court to grant bail.
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, 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.
Bail in offences that fall within the prohibitory clause of Section 497(1) CrPC may be granted under Section 497(2) CrPC if there are no reasonable grounds for believing that the accused committed the offence, but there are sufficient grounds for further inquiry into his guilt. The other grounds of bail in such offences is available under the first and third provisos to Section 497(1) CrPC, on the grounds of being a minor, or a woman or a person who is sick or infirm and undue delay in the conclusion of the trial.
Section 5(6) of the Ordinance has borrowed the language of the second part of Section 497(1) CrPC, which extends to offences falling under the prohibitory clause, and has made it applicable to all the scheduled offences under the Ordinance. However, the exceptions of prohibitory clause of Section 497(1) CrPC have not been so adopted and made applicable to the scheduled offences under the Ordinance. Therefore, the only ground for grant of bail in a schedule offence under the Ordinance is that which is provided in Section 497(2) CrPC, that is, if the court finds that there are no reasonable grounds for believing that the accused has committed the Scheduled Offence and that there are sufficient grounds for further inquiry into his guilt.
Thus, in appropriate cases, a High Court can grant bail on the ground of delay in conclusion of the trial, similar to that which is available under the third proviso to section 497(1) CrPC, under its inherent powers under Section 561-A CrPC to secure the ends of justice or to prevent the abuse of the process of court as held in Khalid Farooq but going further, a High Court also enjoys constitutional jurisdiction under Article 199(1)(c) of the Constitution for the enforcement of fundamental rights. This constitutional jurisdiction of High Courts cannot be abridged by any sub-constitutional legislation. So, while Section 5(6) of the Ordinance is binding on the Special Court, it is not so on a High Court which fashions its jurisdiction on the basis of the enforcement of the fundamental rights under the Constitution. Undue delay in the trial of the accused infringes his fundamental rights to liberty, fair trial and dignity under Articles 9, 10A and 14 of the Constitution, if the delay cannot be attributed to him.
“Delay in the conclusion of a criminal trial is antithetic to the very concept of a fair trial and due process guaranteed by Article 10A of the Constitution. The right to a fair trial is a cardinal requirement of the rule of law. If an accused cannot be tried fairly for an offence, he should not be tried for it at all. Conclusion of trial within a reasonable time is an essential component of the right to a fair trial. The prolonged pre-trial detention of the accused also defies the presumption of innocence, another essential element of the right to a fair trial, for an accused is presumed innocent until he is proven guilty by proof beyond reasonable doubt. Even before the addition of Article 10A in the Constitution, the right to a fair trial and due process was well-entrenched in our jurisprudence and considered to be a part of the right of access to justice enshrined in the constitutional right to be dealt with in accordance with law guaranteed by Article 4 and the fundamental right to life and liberty guaranteed by Article 9 of the Constitution.”
It is therefore underlined that a High Court while hearing a bail petition under Section 497/498 CrPC, other than possessing inherent jurisdiction under Section 561-A CrPC, also enjoys its constitutional jurisdiction as a guardian of the fundamental rights of the accused. This protective constitutional jurisdiction of the High Courts cannot be circumscribed by any sub-constitutional legislation, including Section 5(6) of the Ordinance. If a High Court while hearing a bail petition is of the view that the facts and circumstances of the case offend and impair the fundamental rights of the accused, it can grant bail in exercise of its constitutional jurisdiction without being limited by the legislation that regulates the grant of bail in the offence. If a High Court observes that the conclusion of the trial has been unduly delayed for no fault of the accused, thereby depriving the accused of his fundamental rights to liberty, fair trial and due process, it may, rather should, interfere to enforce these fundamental rights of the accused. In order to assess the reasonable time for the conclusion of the trial, the High Court may be guided by, and structure it discretion on the basis of, the statutory timeframe provided in the third proviso to Section 497(1) CrPC.
Under clause (a) of the third proviso to Section 497(1) CrPC, an accused is entitled to bail if there is a delay in the conclusion of the trial, for no fault of the accused, for a period exceeding one year, in cases of offences not punishable with death.
Bail After Arrest
Crl.P.636/2022
Syed Raza Hussain Bukhari v. The State through D.A.G. & another
Mr. Justice Syed Mansoor Ali Shah
10-08-2022
 Ordinance, 1984. ){kind=link}
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