From which date period for statutory ground of delay in conclusion of trial shall be counted and answer to this question is very simple that the date on which petitioner was arrested shall be considered for calculating period for considering statutory ground of bail due to delay in conclusion of trial.
Petitioner remained absconder for a considerable period but again question does arise that if petitioner is claiming bail on statutory ground of delay in conclusion of trial and particularly when he is behind the bars for more than five years for no fault on his part regarding delay in conclusion of trial then whether abscondence can create any hurdle in the way of grant of bail on statutory ground of delay in conclusion of trial, to the petitioner.
Perusal of Section: 497 Cr.P.C. reveals that in its sub-Section (1) word “May” has been used i.e. the person may be released on bail …….., similarly in first proviso of sub-Section (1) again word “May” has been used i.e. that Court may direct any person under the age of sixteen years or woman or any sick or infirm person accused of such an offence be released on bail ……., however in third proviso, the word “Shall” has been used i.e. that the court shall except where the delay in the trial has been occasioned by an act or omission of the accused or any other person acting ………; similarly in sub-Section (2) of Section 497 Cr.P.C. the word “Shall” has been used i.e. the accused shall, pending such inquiry, be released on bail …... Therefore, if case for grant of bail on the ground of delay in conclusion of trial under 3rd proviso of sub-Section (1) of Section: 497 Cr.P.C. or on the ground of further inquiry under sub-Section (2) of Section 497 Cr.P.C. has been made out, then bail is to be granted to the accused as a matter of right and not as concession.
It is by now well settled that when accused becomes entitled for grant of bail as a matter of right, then he cannot be declined such relief due to abscondance which is matter of propriety. There is a plethora of case law that when case of the prosecution requires further inquiry and falls within the ambit of subsection (2) of Section 497 Cr.P.C., then he is granted bail as a matter of right and cannot be declined said relief due to his abscondance which is a matter of proprietary.
On the same analogy, when trial has not concluded within stipulated period and accused is entitled to grant of bail as a matter of right and not as concession, then, said relief cannot be declined due to abscondance which is matter of propriety. Even otherwise in murder case, accused usually disappears after registration of the case either involved rightly or wrongly
Crl. Misc.
40039/22
Riaz Shah Vs The State etc.
Mr. Justice Farooq Haider
27-10-2022
2022 LHC 7296
0 Comments