The petitioners-accused, namely, Abdul Rahim, Bashir Ahmed, Mushtaq Ahmed and Mohd Javed through the medium of revision petition had challenged the order dated, 17-11-1995 passed by the learned Sessions Judge, Udhampur whereby he had refused to grant bail to them in anticipation of arrest. The bail was sought on the registration of the case under section 436 RPC arisen under FIR No. 58/95 of Police Station, Mahore. While rejecting the said application, the learned Sessions Judge had observed that an offence falling under section 436 RPC was a special offence triable by a Special judge and the question of grant of bail could only be considered under section 497-B Cr. P.C. and not under section 497-A Cr. P.C. A direction was given to the following effect: -

"It will be only after the arrest of the accused that this court as the court of Special Judge will see whether the facts constitute prima facie the alleged offence and in that eventuality the appropriate orders will have to be made."

The learned Sr. AAG raised preliminary objection regarding the maintainability of the revision petition and Mr. Qureshi, the learned counsel for the petitioner prayed that the revision petition may be treated as an application made under the provisions of section 497-B. He also stated that he would cause the appearance of the applicants-accused and sought an opportunity. The prayer was accepted and the revision petition was treated as an application made under section 497-B Cr. P.C.

The counsel appearing for the parties were heard at length.

The learned Sr. AAG has contended that no court except the Special Judge appointed under the Code of Criminal Procedure for the trial of offences which are special offences under the Code has the power to entertain an application for bail. In support of his contention he cited the case of State V/s M/s K.C. Vanaspati, 1979 JKLR 655. However, at the out-set he conceded that the High Court has the inherent power to entertain such an application, but the same is exercised rarely. That in the present case only the Special Judge can properly appreciate the facts and this Court cannot be made as a substituted forum. In order to understand the scope of this argument, a combined reading of section 497-B Cr. P.C. and section 498 Cr. P.C becomes necessary. The opening words of section 497-B to the effect, "notwithstanding anything contained in this Code but subject to the provisions of section 498 Cr. P.C....." suggest that the latter section controls the operation of the former. Sub-clause (2) of section 498 Cr. P.C. prescribes that "the High Court or court of Session may cause any person who has been admitted to bail under section (1) to be arrested and may commit him to custody." Section 259-A Cr. P.C- prescribes Special procedure for the trial of cases relating to the offences specified and an offence under section 436 RPC is included therein Section 259-B Cr. P.C enjoins that the provisions of the Code of Cr. P.C in so far they may be applicable and in so far they are not inconsistent with the provisions contained in section 259-A shall apply to all matters connected with and arising from or consequent upon a trial under section 259-A. The legal position which clearly emerges is that the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice have not been eroded or maimed but explicitly kept intact. The argument that such power may be used sparingly is an argument of despair.

The learned Sr. AAG has contended that applicants-accused herein cannot derive any benefit out of the proviso contained in section 497-B which enables an accused to the grant of bail in case the investigation is not completed within two weeks. According to him, the term investigation used herein is referable to the custody of the accused. That investigation in a case starts only when an accused i

Click Here to Read the rest of this document