ISLAMABAD: The Supreme Court Tuesday declared that pre-arrest bail of a petitioner could not be dismissed on merits for non-prosecution due to his personal absence.
A two-judge bench, comprising Justice Mansoor Ali Shah and Justice Aminuddin Khan, passed the judgment against the Lahore High Court (LHC) order dated 28.09.2020.
The High Court had dismissed the pre-arrest bail petition of Shahzaib for non-prosecution, as well as, on merits.
The petitioner approached the Supreme Court as the High Court decided his petitions on merits. The apex court set aside the LHC order, which dismissed the petition on merit.
It stated that the High Court could not have dismissed the petition on merits for non-prosecution due to the personal absence of the petitioner.
The judgment authored by Justice Mansoor Ali Shah noted that after the insertion of Section 498-A1 of the Code of Criminal Procedure, 1898 (CrPC) if the accused, seeking pre-arrest bail, is not present before the Court, the Court is not authorised to grant bail to such an accused and therefore, the petition is liable to be dismissed in the light of the said statutory provision.
The judgment said, however, the Section 498-A CrPC creates a statutory fetter or a statutory precondition requiring the presence of the petitioner in person in Court for the exercise of its jurisdiction for granting pre-arrest bail. In case the petitioner (accused) is not personally present in Court, the Court is not authorised to grant him bail and the petition is to be dismissed for his lack of presence in Court.
However, in case some explanation is furnished for his non-appearance, the Court may, if it finds that explanation to be satisfactory, exempt his presence for that day and adjourn the hearing of the petition for a short period. The Court cannot, 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 defeats the intent and purpose of the Section 498-A.
The Supreme Court also clarified that in case the petition is dismissed for non-appearance of the accused in a pre-arrest bail matter under Section 498-A CrPC, the petitioner can file a fresh bail petition before the same Court provided that he furnishes sufficient explanation for his non-appearance in the earlier bail petition and the Court is satisfied with his said explanation.
"But if he fails to furnish any satisfactory explanation, his second bail petition is 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," said the judgment.
The judgment said that the petitioners are free to file a fresh bail petition, if so advised, before the High Court by giving explanation for their absence before the Court in their first bail petition and if the Court is satisfied with their explanation, it would decide their petition on merits.
The apex court also clarified that ad interim bail granted in a pre-arrest application on the first hearing is to simply ensure that the petitioner is present on all the subsequent dates of hearing in the pre-arrest bail matter.
The petitioner's presence is, 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 does not in any manner lessen the rigours of Section 498-A CrPC or absolve the responsibility of the accused from appearing in person before the court.
Copyright Business Recorder, 2021
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