EMPEROR Vs. MIRZA MOHAMMAD IBRAHIM

JUDGEMENT

(1.) This is an application on behalf of the Crown for the cancellation of an order passed by me on December the 7th, 1931, granting bail to one Mirza Mohammad Ibrahim. The arguments on the application have given rise to the legal question of whether when the High Court has passed an order under Section 498, Criminal Procedure Code, granting bail, that order for bail may be cancelled without the accused person having done anything since the order to violate any condition on which bail was granted.

(2.) When an application for bail on behalf of Mirza Mohammad Ibrahim was made before me the position was that Mirza Mohammad Ibrahim was being prosecuted for offences under Secs.302 and 307, Indian Penal Code. The actual enquiry had not started, but both the enquiring Magistrate and me Sessions Judge had refused to release him on bail. I directed his release as appears from the order of 7 December, 1931, on grounds that might have been the basis of an order under Section 497, Sub-section (2) of the Criminal Procedure Code, but there can be no doubt chat the order was actually passed under Section 498. The discretion of this Court to release accused persons on bail under Section 498, Criminal Procedure Code, is not fettered in any way, but an order under that section must of course be passed for judicial reasons and not arbitrarily. The reasons given in my order amount to this that the case against Mirza Mohammad Ibrahim was one instituted on complaint, that the evidence according to the affidavit against the accused was scanty and that the application had not been opposed by the Crown. It is not possible to say definitely that these were the only reasons, but in so far as any reasons are expressed they amount to this that there were no reasonable grounds for believing that the accused had committed a non-bailable offence as expressed in Sub-section 2 of Section 497.

(3.) The Government Advocate has pointed out that the affidavit now filed on behalf of the Crown proves that the Magistrate's enquiry has been completed, that the accused including Mirza Mohammad Ibrahim have been committed for trial and that the Magistrate has expressed the opinion that a strong prima facie case has been made out against the accused. The position is therefore, radically different from that which existed when the bail order was passed. Mr. P.L. Banerji in opposing the application has pointed out that the bail Order was passed under Section 498, Criminal Procedure Code which contains no provi sion empowering the High Court to cancel a bail order passed under this section. The only section of the Criminal P. C. by which the High Court is empowered to cancel such an order is, it is argued,'s 561-A, viz: Nothing in this Code shall be deemed to limit or affect 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 any court or otherwise to secure the ends of justice.