27/09/2026
PLJ 2026 CrC 729
It is trite that the court is not bound by the penal provision invoked by the police. It must tentatively examine the facts stated in the FIR and the material collected during the investigation to see what provision is prima facie attracted.
Sections 279, 320, and 322 PPC each have a different scope, and the precise distinction between them may, in a given case, require careful examination in the light of the facts ultimately established on the record. However, for the purposes of the present application, it is neither necessary nor proper to finally determine whether the occurrence would more appropriately fall under section 320 PPC or section 322 PPC. That question must depend on the facts that emerge during the investigation and the material eventually placed before the trial court.
That said, it is necessary to determine the effect of the relevant entries in Schedule II to the Code of 1898. Mr. Bhatti has drawn attention to the expression “may arrest without warrant”appearing in Schedule II in relation to both sections 320 and 322 PPC. That expression, appearing in Column 3 of the Schedule, simply denotes that both offences are cognizable, i.e., the police are empowered to arrest without a warrant and to investigate without prior magisterial sanction. It does not conclude the question whether anticipatory relief should or should not be granted. For present purposes, it is sufficient to observe that section 322 PPC, as invoked in the FIR, is expressly classified as non-bailable in Schedule II, andthat the grant of pre-arrest bail must be examined on its own settled principles.10. The Petitioner has argued that even the principal offence invoked by the police, namely section 322 PPC, entails only liability to diyat, not imprisonment, and that he should not be deprived of his liberty before conviction. However, there is a divergence of judicial opinion on this point. One view is that because the offence is cognizable and non-bailable, the accused may be arrested without a warrant and may remain in custody pending trial unless he makes out a case for bail. The mere fact that the punishment prescribed for the offence is diyat does not entitle him to release. The other view emphasizes that, since the liability under section 322 PPC is confined to diyat, incarceration before conviction amounts to punishment before trial. It may nevertheless be observed that, in post-arrest bail matters, the courts have generally adopted a liberal approach, as an offence under section 322 PPC does not fall within the prohibitory clause of section 497(1) Cr.P.C.
Crl. Misc. No. 4411/B/2026
Nadeem Abbas Vs The State and another
