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1985 DIGILAW 460 (MAD)

Ali Ahammed v. State of Kerala

1985-11-08

S.PADMANABHAN

body1985
Order: 1. Both are petitions filed under sections 438, 439 and 482 of the Code of Criminal Procedure Code. Petitioners in Crl.M.C.No.959 are accused in committal proceedings 2 of 1985 and petitioners in Crl.M.C.No.964 of 1985 are accused in committal proceedings 4 of 1985 both pending before the Judicial First Class Magistrate, Pattambi. 2. In C.P.No.2 of 1985 out of the 36 accused 28 were granted anticipatory bail from the Sessions Court, Palghat and the remaining accused were enlarged on bail by the Magistrate himself. In the other cases all the accused were granted anticipatory bail by the Sessions Judge at the investigation stage. After final report they were granted regular bail by the Magistrate himself. Thus all the accused in both the cases are now on bail. 3. Both cases now stand posted for committal to the Court of Sessions. It is said that the Magistrate directed all the accused to appear in person before him for being remanded to custody, apparently as provided under section 209(a) and (b) of the Code of Criminal Procedure. The Magistrate is of the view that on completing the committal proceedings he is bound to remand all the accused to custody as provided under the aforesaid section. Petitioners, therefore, pray for directions under sections 438, 439 and482 to the Magistrate to admit the petitioners on bail in the event of the cases being committed to the Court of Session, Palghat. 4. I have heard the Counsel for the petitioners and the Public Prosecutor. After having heard both sides, I feel that the view expressed by the Magistrate is incorrect and if implemented it will amount to abuse of process of Court resulting in miscarriage of justice. 5. 4. I have heard the Counsel for the petitioners and the Public Prosecutor. After having heard both sides, I feel that the view expressed by the Magistrate is incorrect and if implemented it will amount to abuse of process of Court resulting in miscarriage of justice. 5. Section 209 of the Code reads: “Commitment of case to Court of Session when offence is triable exclusively by it - when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, be shall- (a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) mortify the Public Prosecutor of the commitment of the case to the Court of Session.” 6. It is true that the protracted commitment inquiry under the provisions of Chapter XVIII of the Code of 1808 has been completely done away with. That does not mean that the present committal proceeding which is more or less of a summary nature involving no detailed consideration of facts cannot be termed an inquiry. Section 209 of the new Code shows that it must appear to the Magistrate that the offence is exclusively triable by the Court of Session. That implies formation of an opinion by the Magistrate on the materials on record for which judicial application of mind is necessary. The term ‘inquiry’ as defined in section 2(g) has a very wide connotation under the Code and it includes every inquiry other than a trial. A proceeding under section 209 is such an inquiry. It involves application of the mind to ascertain what offence is made out on the facts alleged and whether such offences are exclusively triable by the Court of Session. A proceeding under section 209 is such an inquiry. It involves application of the mind to ascertain what offence is made out on the facts alleged and whether such offences are exclusively triable by the Court of Session. The provisions of section 309(2) read with section 209 shows that after taking cognizance and before committal of the case to the Court of Sessions, the Magistrate is fully empowered to remand the accused to custody. The question that has to be considered in those two cases is only whether that power of remand is unfettered or only qualified. 7. Section 209(a) authorises the Magistrate to remand the accused to custody until the commitment has been made but makes that power ‘subject to the provisions of this Code relating to bail’. So also what sub- section (b) says is “Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial”. 8. The provisions relating to bail are contained in Chapter XXXIII and sections 436 to439 are included in those provisions. Under section 439(i)(a) the High Court or the Court of Sessions may direct that any person accused of an offence and in custody be released on bail and if the offence is of the nature specified in 437(3), may impose many condition which it considers necessary. Section 439(2) says that the High Court or Court of Sessions may direct that any person who has been released on bail under that Chapter be re-arrested and committed to custody. Section 437(5) also authorises any Court which released a person bail under section 437(i) or (2) to direct that such person be rearrested and committed to custody if it considers it necessary to do so. 9. Section 209(a) and (b) unequivocally say that the power of remand of the Magistrate at the time of committal is subject to the provisions relating to bail. Those provisions do not envisage cancellation of bail already granted by the Magistrate or the Sessions Judge or the High Court. When the power of remand at the time of committal is specifically made subject to the provisions of the Code relating to bail, it follows that the Magistrate is not having unrestricted powers and his powers are controlled by the provisions of sections 437 ,438 and439. 10. When the power of remand at the time of committal is specifically made subject to the provisions of the Code relating to bail, it follows that the Magistrate is not having unrestricted powers and his powers are controlled by the provisions of sections 437 ,438 and439. 10. In the above two cases, as already stated by me, some of the accused were given anticipatory bail by the Sessions Judge and the remaining accused were released on bail by the Magistrate himself. Anticipatory bail Could be granted only by the High Court or the Sessions Judge. When anticipatory bail under the provisions of section 436 of the Code is given to a person, he continues to enjoy that liberty till the conclusion of trial and the bail does not automatically stand cancelled by filing of the charge sheet. At the time of committing the accused the Magistrate has no right to cancel the bail or the anticipatory bail granted by the Sessions Judge or the High Court and remand the accused. Bail once granted could be cancelled only under the provisions of section 437(5) or439(2) as the case may be for proper reasons. This position is supported by the decision in Devidas v. State of Kerala Devidas v. State of Kerala (1979) K.L.T. 642. Even when an accused is released on bail by the Magistrate under proviso (a) of section 167(2) , such bail cannot be cancelled under section 209 at the time of committal by the Magistrate except as provided under section 437(5). It was so held in Ramsewak and others v. State of M.P. Ramsewak and others v. State of M.P. (1979) Crl.L.J. 1485. The Sessions Judge and the High Court also could cancel the anticipatory bail or regular bail granted only subject to the provisions relating to bail and for proper reasons. Even after grant of anticipatory bail if the accused entertains a reasonable apprehension that he may be committed to the Sessions Court for trial and at that time he may be taken to custody misinterpreting the provisions of section 209 a direction could be given to the Magistrate under section 438 not to remand the accused to custody. 11. When considering the provisions of section 439(i)(a) it could be seen that in granting bail the Magistrate is not having any exclusive powers. 11. When considering the provisions of section 439(i)(a) it could be seen that in granting bail the Magistrate is not having any exclusive powers. The powers of the High Court and the Court of Session is concurrent with that of the Magistrate. Being Courts of superior jurisdiction, bail granted by the Sessions Judge or the High Court cannot be cancelled by the Magistrate. The Magistrate can cancel the bail granted by himself only for proper reason under the provisions of section 437(5). Automatic cancellation of bail and remand to custody at the time of committal is not contemplated under section 209. If so cancelled, it will amount to an abuse of process of Court. 12. Both petitions are allowed and the Magistrate is directed that when the petitioners are committed for trial to Sessions Court, Palghat, they shall not be remanded to custody but released on bail to appear before the Sessions Court on the existing terms and conditions under which they were released on bail. Petitions allowed.