The Code
of Criminal Procedure, 1973 - Section 437 (1) - A bail once granted cannot be
cancelled on the off chance or on mere suppositions. [Para 15]
IN
THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY,
THE 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940
Crl.
MC.No. 8826 of 2018 IN CMP NO.5301/2018
ON
THE FILES OF J.M.F.C.-I, KANJIRAPPALLY CRIME NO.1528/2018 OF MUNDAKAYAM POLICE
STATION, KOTTAYAM
PETITIONER
/ ACCUSED:
JERI
CHERIYAN
BY
ADVS. SRI.B.RAMAN PILLAI (SR.) SMT.MANJU E.R. SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR
SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM SRI.THOMAS
SABU VADAKEKUT
RESPONDENT
/ COMPLAINANT:
STATE
OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
KOCHI -682031.
BY
SR. PUBLIC PROSECUTOR SRI.AMJAD ALI
THIS
CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.12.2018, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
O R
D E R
The
petitioner herein was granted bail under Section 437 (1) of the Code of
Criminal Procedure, 1973 ( the “Code” for brevity) by the learned Magistrate on
23.11.2018 after he was arrested in Crime No.1528 of 2018 registered at the
Mundakkayam Police Station on 17.11.2018 under Sections 354 and 354A of the IPC.
2. While
the petitioner was enjoying the liberty granted as above, he was served with
Annexure-J notice dated 14.12.2018 directing him to appear before the Court
below on 17.12.2018. The terse order passed by the court below reads as
follows:-
“Heard.
On perusal of the CD filed and arguments of counsel and APP , it is clear that
prima facie offence under Section 376 IPC is made out. Hence, accused shall
appear on 17.12.2018.”
3.
The above order is under challenge in this petition filed under Section 482 of
the Cr.P.C. The apprehension evidently is that the learned Magistrate has
concluded that if prima facie offence under Section 376 of the IPC is made out,
he would be remanded to on his appearance.
4.
A brief resume of the facts emerging from the case diary needs to be narrated
to have an idea of the events which led to the passing of the above order by
the learned Magistrate.
5. On
17.11.2018 at about 8.30 p.m., the de facto complainant was sitting on the
ladies' seat of a crowded KSRTC bus on her way to Kumarakom. The petitioner
herein, who was a copassenger, is alleged to have inserted his penis through
her armpit in an attempt to masturbate. She alleges that she got up and pushed
him away. She further alleges that the petitioner managed to ejaculate on her
clothes. Whether any such incident happened or not or whether the allegations
are improbable need not be delved into detail at this stage as the bone of
contention raised in this petition is with regard to the jurisdictional
competence of the learned Magistrate to summon the petitioner suo motu.
6. The
learned Senior counsel would contend that at the stage of investigation, there
is no power or authority available to the Court either by virtue of any
statutory provision or by way of judicial precedent to hold that a prima facie case
is made out under Section 376 of the IPC when no application for cancellation
of bail has been filed by the prosecution. The learned Senior counsel would
also refer to the order passed by the learned Magistrate and it was submitted that
the Court had taken note of the prosecution allegation that it was a case of
rape. However, in view of the fact that the incident had taken place in a
crowded bus and taking note of the improbability of the version, the learned
Magistrate had decided to grant bail to the petitioner. The petitioner was in
custody from 17.11.2018 till 23.11.2018 and it was thereafter that bail was granted
on stringent conditions. Essentially, the contention is that bail having been
granted in a non bailable offence, further addition of a graver offence will
not clothe the Court below to issue an order as has been done in the instant
case.
7. I
have heard the learned Public Prosecutor, who submitted that there is no reason
for this Court to interfere under Section 482 of the Code. It is submitted that
the learned Magistrate was well justified in directing the petitioner to appear
as the Section 437(5) would clothe him with the powers to issue an order as rendered
in the instant case.
8. I
have anxiously considered the submissions advanced.
9.
There cannot be any doubt that if under Chapter XXXIII of the Code (in short,
"the Code"), once bail is granted, it shall be in force unless the
same is cancelled by the appropriate court. Sub section (5) of Section 437 of
the Code provides that any Court which has released a person on bail under
sub-section (1) or sub-section (2), may, if it considers it necessary so to do,
direct that such person be arrested and commit him to custody. The object of
Section 437(5) of the Code is to enable the court on sufficient materials being
placed before it to cancel the bail granted or to direct that such person be
arrested and committed to custody. This sub-section contemplates a situation
where a person enlarged on bail has misused the freedom granted or has
disobeyed the conditions imposed or has imperiled the smooth course of
investigation or has done such acts, as, in the opinion of the court, are
sufficient to cancel the bail already given. Section 437(5) does no contemplate
a formal application to be filed by the investigating officer.
10. In
Prahlad Singh Bhati v. NCT,
Delhi and Another [(2001) 4 SCC
280], more or less a similar question had arisen before the Apex Court. In that
case, a case was registered against the accused under Sections 306 and 498 A of
the IPC. After the investigating officer recorded the statements of the witnesses
under Section 161 of the Cr.P.C, the accused moved an application for grant of
anticipatory bail under Section 438 of the Cr.P.C. The learned Additional
Sessions Judge granted interim bail observing that if on facts, a case under
Section 302 of IPC is made out against the accused, the State shall be at
liberty to arrest him. Subsequently, a charge sheet was filed against the
accused under Sections 302, 406 and 498A of the IPC by the investigating agency
and the accused was directed to appear before the Metropolitan Magistrate. As
he failed to appear before the Court, non-bailable warrants were issued against
him. In the meanwhile, the accused filed a petition before the High Court under
Section 482 of the Cr.P.C, suppressing the fact that a charge sheet under
Section 302 of the IPC had been laid. While the matter was pending
consideration, the accused moved an application under Section 438 of the Cr.P.C
before the learned Additional Sessions Judge and a direction was issued to the
accused to surrender before the Magistrate after holding that no ground was
made out for cancellation of bail. The accused appeared before the learned
Magistrate and he was admitted to bail by the learned Magistrate. This order
was challenged by the father of the deceased before the Supreme Court. The Apex
Court held as follows:
6.
Even though there is no legal bar for a Magistrate to consider an application
for grant of bail to a person who is arrested for an offence exclusively triable
by a Court of Session yet it would be proper and appropriate that in such a
case the Magistrate directs the accused person to approach the Court of Session
for the purposes of getting the relief of bail. Even in a case where any
Magistrate opts to make an adventure of exercising the powers under Section 437
of the Code in respect of a person who is suspected of the commission of such
an offence, arrested and detained in that connection, such Magistrate has to specifically
negate the existence of reasonable ground for believing that such an accused is
guilty of an offence punishable with the sentence of death or imprisonment for
life. In a case where the Magistrate has no occasion and in fact does not find,
that there were no reasonable grounds to believe that the accused had not
committed the offence punishable with death or imprisonment for life, he shall
be deemed to be having no jurisdiction to enlarge the accused on bail.
7. Powers of the Magistrate, while
dealing with the applications for grant of bail, are regulated by the punishment
prescribed for the offence in which the bail is sought. Generally speaking if
punishment prescribed is for imprisonment for life and death penalty and the
offence is exclusively triable by the Court of Session, the Magistrate has no
jurisdiction to grant bail unless the matter is covered by the provisos
attached to Section 437 of the Code. The limitations circumscribing the
jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction
to entertain the application is distinguishable from the exercise of the
jurisdiction.
8. The jurisdiction to grant bail has to
be exercised on the basis of well-settled principles having regard to the
circumstances of each case and not in an arbitrary manner. While granting the
bail, the court has to keep in mind the nature of accusations, the nature of
evidence in support thereof, the severity of the punishment which conviction
will entail, the character, behaviour, means and standing of the accused,
circumstances which are peculiar to the accused, reasonable possibility of securing
the presence of the accused at the trial, reasonable apprehension of the
witnesses being tampered with, the larger interests of the public or State and
similar other considerations. It has also to be kept in mind that for the
purposes of granting the bail the legislature has used the words “reasonable grounds
for believing” instead of “the evidence” which means the court dealing with the
grant of bail can only satisfy itself as to whether there is a genuine case
against the accused and that the prosecution will be able to produce prima
facie evidence in support of the charge. It is not expected, at this stage, to
have the evidence establishing the guilt of the accused beyond reasonable doubt.
9. In the instant case while exercising
the jurisdiction, apparently under Section 437 of the Code, the Metropolitan
Magistrate appears to have completely ignored the basic principles governing
the grant of bail. The Magistrate referred to certain facts and the provisions
of law which were not, in any way, relevant for the purposes of deciding the
application for bail in a case where the accused was charged with an offence
punishable with death or imprisonment for life. The mere initial grant of
anticipatory bail for lesser offence, did not entitle the respondent to insist for
regular bail even if he was subsequently found to be involved in the case of
murder. Neither Section 437(5) nor Section 439(1) of the Code was attracted. There
was no question of cancellation of bail earlier granted to the accused for an
offence punishable under Sections 498-A, 306 and 406 IPC. The Magistrate
committed an irregularity by holding that “I do not agree with the submission
made by the learned Prosecutor inasmuch as if we go by his submissions then the
accused would be liable for arrest every time the charge is altered or enhanced
at any stage, which is certainly not in the spirit of law”. With the change
of the nature of the offence, the accused becomes disentitled to the liberty
granted to him in relation to a minor offence, if the offence is altered for an
aggravated crime. Instead of referring to the grounds which entitled the
respondent-accused the grant of bail, the Magistrate adopted a wrong approach
to confer on him the benefit of liberty on allegedly finding that no grounds
were made out for cancellation of bail.
(emphasis supplied)
11.
In other words, it was held that with the change of the nature of the offence,
the accused becomes dis-entitled to the liberty granted to him in relation to a
minor offence, if the offence is altered to an aggravated one. It is further
held that the approach of the learned Magistrate conferring bail to the accused
without referring to the grounds which entitled the accused to grant of bail was
erroneous.
12. In
Hamida v. Rashid @ Rasheed and others, [2007 (6) Scale 517], the Hon'ble Supreme Court
had occasion to consider the question as to whether the High Court was
justified in entertaining a petition under Section 482 to permit the accused to
be in bail to enable him to be on bail. That was a case, wherein the accused
were released on bail when the case was initially registered under Sections
324, 352, 506 of the IPC. Subsequently, the injured died and an offence under
Section 304 of IPC was added. The accused then moved a petition under Section
482 of the Code before the High Court secured an order that the accused shall
continue to remain on bail. While deprecating the practice, it was held as follows:-
“In
the case in hand, the accused respondents could apply for bail afresh after the
offence had been converted into one under Section 304, IPC. They deliberately
did not do so and filed a Petition under Section 482, Cr.P.C in order to
circumvent the procedure whereunder they would have been required to surrender
as the Bail Application could be entertained and heard only if the accused were
in custody. It is important to note that no order adverse to the accused
respondents had been passed by any Court nor there was any miscarriage of
justice or any illegality. In such circumstances, the High Court committed
manifest error of law in entertaining a Petition under Section 482, Cr.P.C and
issuing a direction to the Subordinate Court to accept the sureties and bail
bonds for the offence under Section 304, I.P.C The effect of the order passed by
the High Court is that the accused after getting bail in an offence under
Sections 324, 352 and 506, IPC on the very day on which they were taken into
custody, got an order of bail in their favour even after the injured had
succumbed to his injuries and the case had been converted into one under
Section 304 IPC without any Court examining the case on merits, as it stood
after conversion of the offence. The procedure laid down for grant of bail
under Section 439 of Cr.P.C, though available to the accused respondents,
having not been availed of, the exercise of power by the High Court under
Section 482, Cr.P.C is clearly illegal and the impugned order passed by it has
to be set aside.
13. In
Ahmed Basheer v. Sub Inspector of Police [2013 (4) KHC 58], a similar question had cropped
up for consideration. A crime was registered against the accused for bailable
offences and in the course of investigation non bailable offences were
incorporated. While the offences were bailable, the accused was granted bail by
the police after execution of bond. When graver offences were added, an
application was filed under Section 438 of the Cr.P.C. This Court held as
follows:
“6.
In the present case petitioners(accused) were released on bail by police at a
stage when they were accused of a bailable offence. When investigation has
revealed that the offence committed by them was an aggravated one, a
non-bailable offence, they become dis-entitled to the liberty granted to them
in relation to the minor offence. In such a case no orders from the Sessions
Court or High court under section 439(2) of the Code is warranted for their
arrest by police. Their previous release on bail by police when they were proceeded
only for bailable offence would no way shield them from arrest by police if
investigation disclose their culpability in a non bailable offence. Even where
a person is granted bail by the court under section 436(1) of the Code, if he
is later proceeded for a non bailable offence in the same crime no cancellation
of bail need be applied by investigating officer but only informing the court
of inclusion of the aggravated offence for issue of direction to the accused to
apply for bail again for the graver offence. No order of cancellation of bail
is required or called for. The argument canvassed by counsel that a person
arrested and released on bail under section 436(1) of the Code can be
rearrested only under an order passed only by Sessions Court or High Court
under section 439 (2) of the Code has no merit. The words 'under this Chapter'
in sub section (2) of Section 439 do not postulate that a person released on
bail under section 436(1) of the Code, whether it be by police or court, can be
rearrested only by an order of the Sessions Court or High Court. What is
provided under that sub section is a plenary power to the High Court or Court
of Session for revoking or cancelling bail granted to any person under Chapter
XXXIII of the Code for arresting and committing him to custody where
circumstances demand such an order to advance the ends of justice. Where no
cancellation or revocation of a bail granted in relation to a bailable offence
is needed or called for when the person granted bail is proceeded for an
aggravated non bailable offence sub section (2) of Section 439 of the Code has
no applicability at all. View expressed by this court in Biju v. State of
Kerala (2000(2) KLT 495) that "when an accused has been released on bail
under section 436 of the Code and later a non bailable offence is added, his
bail can be cancelled only under section 439(2) or under section 437(5) Cr.P.C
and that too on misuse of liberty granted" cannot hold good in the light of
judicial pronouncement rendered over that question by the Apex Court in Prahlad
Singh Bhati's case referred to above. In a fact situation where a person has
been released on bail when proceeded with for a bailable offence alone, adding
of aggravated non bailable offence against him in the crime dis-entitle him to
the liberty granted in respect of the minor offence. In such a case no question
of revoking or cancelling the bail granted earlier for the minor bailable
offence is called for.
7. Petitioners who are now proceeded for
an aggravated offence are dis-entitled to the liberty granted to them in
respect of the minor offence. They have been released by police earlier on
executing a bond directing their appearance before court is not a shield
preventing their arrest when they are proceeded in the same crime for an
aggravated offence. “
14.
The Patna High Court in Sita Ram Singh
and another v. State of Bihar,
[2002 (1) PLJR 693] had occasion to consider a similar question and in
paragraph 12 of the judgment, it was observed as follows:-
"The
aforesaid judgment clearly holds that on a serious change in the nature of the
offence the accused becomes, dis-entitled to the liberty granted to him in relation
to a minor offence and in such circumstances, the correct approach for the
court concerned would be to apply its mind afresh as to whether the accused is entitled
for grant of bail, in the changed circumstances. If the court finds that the
accused is still entitled for bail keeping his past conduct etc. in mind, the
prayer for cancellation can be rejected otherwise the bail granted for the
minor offence may justifiably be cancelled and the accused be taken in
custody."
In
Shukhpal v. State of Rajasthan [1986 (1) RLW 283], the Rajasthan High Court has
held as follows:-
"When
a person is on anticipatory bail and some new offences have been added during
investigation, then police cannot arrest an accused by adding a nonbailable offence.
The police must seek an order from the court for cancellation of bail already
granted to a person."
(iii)
Again, the Rajasthan High Court in Gheesya and others v. State of Rajasthan,
1989 (1) III Crimes 524 has followed the same view. In para 10 of the judgment,
the Court has held thus:
"10.
The principle that when a person is released on bail or released on
anticipatory bail, he cannot be arrested if another offence is found to have
been committed by him at the time of investigation of the case, is well settled
and if the court considers it proper then the bail granted can be cancelled
under Section 437(5) and under Section 439(2) of Cr.P.C."
The
Orissa High Court in Kalia @ Saroj
Praharaj v. State of Orissa [2000
(2) Crimes 331] has held as follows:-
"4.
......... Once the accused against whom a case has been registered for
commission of a non-bailable offence is released on bail, he cannot be
re-arrested if the case is converted to a serious offence that provides severe punishment."
15.
Thus, there cannot be any doubt that the learned Magistrate was justified in
issuing summons to the petitioner to apply its mind afresh and to consider
whether, he can be permitted to be on bail even in the changed circumstances.
In that view of the matter, the learned Magistrate cannot be faulted for
issuing a direction to the petitioner to appear before the Court below. However,
the court below will not be justified in cancelling the bail already granted to
the petitioner unless there are supervening circumstances as detailed above.
The court below shall bear in mind that cancellation of bail necessarily
involves the review of a decision already made and can by and large be
permitted only if, by reason of supervening circumstances, it would be no conducive
to a fair trial to allow the accused to retain his freedom during the trial. A
bail once granted cannot be cancelled on the off chance or on mere suppositions.
When a request is made, the prosecution, can establish its case by showing on a
preponderance of probabilities, and not beyond reasonable doubt, that the
accused has attempted to tamper or has tampered with its witnesses, or has
abused his liberty or that there is a reasonable apprehension that he will interfere
with the course of justice. The power to take back in custody an accused, who
has been enlarged on bail, has to be exercised, with care and circumspection
but the power, though of an extraordinary nature, is meant to be exercised in
appropriate cases.
16. In
X v. The State of Telangana and Ors. [2018 (7) SCALE 494] , the Apex Court had
occasion to consider the principles regarding cancellation of Bail and after
referring to the earlier decisions in Central
Bureau of Investigation, Hyderabad v. Subramani Gopalakrishnan [(2011) 5 SCC 296] and that in Dataram Singh v. State of Uttar Pradesh [2018 (2) SCALE 285].
It
was held as follows:-
“It
is also relevant to note that there is difference between yardsticks for
cancellation of bail and appeal against the order granting bail. Very cogent
and overwhelming circumstances are necessary for an order directing the cancellation
of bail already granted. Generally speaking, the grounds for cancellation of
bail are, interference or attempt to interfere with the due course of administration
of justice or evasion or attempt to evade the due course of justice or abuse of
the concessions granted to the Accused in any manner. These are all only few
illustrative materials. The satisfaction of the Court on the basis of the
materials placed on record of the possibility of the Accused absconding is
another reason justifying the cancellation of bail. In other words, bail once
granted should not be cancelled in a mechanical manner without considering whether
any supervening circumstances have rendered it no longer conducive to a fair
trial to allow the Accused to retain his freedom by enjoying the concession of
bail during the trial. “
17.
In the instant case, it is evident from the report dated 11.12.2018 filed to
the application for modification of bail condition that the investigating
officer has no case that the petitioner has abused the liberty granted to him
or has made any attempt to interfere with the course of justice. As no
circumstances requiring cancellation of bail already granted is brought out,
the apprehension expressed by the petitioner that he would be remanded if he appears
before the learned Magistrate does not appear to be justified.
18. For
the aforementioned reasons, I direct the petitioner to appear before the
learned Magistrate within a period of ten days from today. The learned
Magistrate shall apply its mind afresh and consider whether, the petitioner is entitled to continue on bail, in the changed
circumstances. If so warranted,
the petitioner may apply for fresh bail and the same shall be considered and
orders shall be passed by the learned Magistrate on the same day itself. This
order, however, shall not be a bar to the prosecution to take appropriate steps
under Section 437(5) of the Code if the same is warranted and if any such
request is made, the learned Magistrate shall consider the same in accordance
with law.
This
petition is disposed of accordingly.