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Women involved in non-bailable offences can be given bail in certain circumstances: Supreme Court

According to the judgement, the first proviso to Section 497(1) CrPC provides that the court “may direct that any person” under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.

ISLAMABAD: The Supreme Court said that women accused of offences, which are non-bailable under the relevant laws, are entitled to get bail, barring exceptional circumstances.

In a judgment written by Justice Syed Mansoor Ali Shah, the SC noted that irrespective of the category of offence, the court was authorised to grant bail to the accused involved in offences that fall within the prohibitory clause of subsection (1) of Section 497 of CrPC because they attract the principle that grant of bail was a rule and refusal an exception.

The bench was hearing the post-arrest bail of a woman who was involved in the offences punishable under Sections 395 and 412 of PPC.

According to the judgement, the first proviso to Section 497(1) CrPC provides that the court “may direct that any person” under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.

For non-bailable offences, Section 497 of the Code of Criminal Procedure (CrPC) provides that the accused shall not be given bail if there are “reasonable grounds for believing” that they are “guilty of an offence punishable with death, imprisonment for life or imprisonment for ten years”.

The judgment noted that the first part of Section 497(1) CrPC provides that if a person accused of a non-bailable offence is arrested, he may be released on bail. Since the enabling expression of “may be released on bail” is used in this part, read with the basic principles of criminal justice, the grant of bail in a non-bailable offence that does not fall within the second part of Section 497(1) CrPC is said to be a rule and refusal an exception.

“The second part of Section 497(1) CrPC provides that an accused shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. This part of Section 497(1) CrPC which prohibits the grant of bail in certain offences is popularly known as the prohibitory clause of Section 497(1) CrPC.”

However, the order said that the first proviso to Section 497(1) CrPC provides that the court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail.

The expression “such an offence” used in this proviso refers to the offence mentioned in the second part (prohibitory clause) of Section 497(1) CrPC, as for all other non-bailable offences the court is already empowered to release the accused on bail under the first part of Section 497(1) CrPC.

The first proviso has thus made equal the power of the court to grant bail in the offences of prohibitory clause alleged against an accused under the age of sixteen years, a woman accused and a sick or infirm accused, to its power under the first part of Section 497(1) CrPC.

“This means that in cases of women, etc., as mentioned in the first proviso to Section 497(1), irrespective of the category of the offence, bail is to be granted as a rule and refused as an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of Section 497(1) CrPC.

Exceptions

The apex court also noted that the exceptions for refusing bail in offences that do not fall within the prohibitory clause of Section 497(1) CrPC are therefore also applicable to the accused who pray for bail under the first proviso to Section 497(1) CrPC in an offence falling within the prohibitory clause.

Javed Mahmood
Written By

I am an experienced writer, analyst, and author. My exposure in English journalism spans more than 28 years. In the past, I have been working with daily The Muslim (Lahore Bureau), daily Business Recorder (Lahore/Islamabad Bureaus), Daily Times, Islamabad, daily The Nation (Lahore and Karachi). With daily The Nation, I have served as Resident Editor, Karachi. Since 2009, I have been working as a Freelance Writer/Editor for American organizations.

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