06/11/2021
P L D 2021 Supreme Court 886
Criminal Procedure Code (V of 1898)---
----S. 498-A---Pre-arrest bail petition---Accused not present before the Court at the time of hearing of his pre-arrest bail petition---Effect---In case the petitioner-accused was not personally present in Court, the Court was not authorized to grant him (pre-arrest) bail and the petition was to be dismissed for his lack of presence in Court---However, in case some explanation was furnished for his non-appearance, the Court may, if it found that explanation to be satisfactory, exempt his presence for that day and adjourn the hearing of the petition for a short period---Court could not, in the absence of the personal appearance of the petitioner, travel further into the case and examine the merits of the case---Abdul Rehman v. State 1981 PCr.LJ 61; Salima Bibi v. State 2000 PCr.LJ 138; Abdul Rashid v. State 2006 YLR 2058 and Tariq Hanif v. State 2021 PCr.LJ 250 not approved.
After the insertion of section 498-A of the Code of Criminal Procedure, 1898 ("Cr.P.C.") if the accused, seeking pre-arrest bail, was not present before the Court, the Court was not authorized to grant bail to such an accused and therefore, the (bail) petition was liable to be dismissed in the light of the said statutory provision.
Section 498-A, Cr.P.C. created a statutory fetter or a statutory precondition requiring the presence of the petitioner (accused) in person in Court for the exercise of jurisdiction by the court for granting pre-arrest bail. In case the petitioner was not personally present in Court, the Court was not authorized to grant him bail and the petition was to be dismissed for his lack of presence in Court. However, in case some explanation was furnished for his non-appearance, the Court may, if it found that explanation to be satisfactory, exempt his presence for that day and adjourn the hearing of the petition for a short period. The Court could not, in the absence of the personal appearance of the petitioner, travel further into the case and examine the merits of the case. In fact the examination of the merits of the case in the absence of the accused totally defeated the intent and purpose of the section 498-A, Cr.P.C. This was because once the Court proceeded to examine the merits of the case, then the Court had the option to either dismiss or allow the bail petition, while under section 498-A, Cr.P.C. the Court was not authorized to admit the accused to bail in his absence.
In case the petition was dismissed for non-appearance of the accused in a pre-arrest bail matter under section 498-A, Cr.P.C., the petitioner could file a fresh bail petition before the same Court provided that he furnished sufficient explanation for his non-appearance in the earlier bail petition and the Court was satisfied with his said explanation. But if he failed to furnish any satisfactory explanation, his second bail petition was liable to be dismissed on account of his conduct of misusing the process of Court disentitling him to the grant of discretionary relief of pre-arrest bail.
Ad interim bail granted in a pre-arrest application on the first hearing was to simply ensure that the petitioner was present on all the subsequent dates of hearing in the pre-arrest bail matter. Petitioner's presence was, therefore, required throughout the proceedings of the pre-arrest bail petition and the fact that he appeared on the first date when ad interim bail was granted did not in any manner lessen the rigours of section 498-A, Cr.P.C. or absolve the responsibility of the accused from appearing in person before the court.
