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2000 DIGILAW 190 (KER)

Biju v. State of Kerala

2000-03-24

T.M.HASSAN PILLAI

body2000
Judgment :- T.M. Hassan Pillai, J. The grievance of the petitioner is against the order of cancellation of bail granted to him by the learned Judicial I Class Magistrate, Sulthan Bathery in Crime No. 253 of 1999 of Pulpally Police Station. Bail was granted to him on the ground that the allegation made by the prosecution against him is that he committed an offence punishable under S.324IPC. On the basis of the statement of the injured (one John Joseph, S/o. Joseph), recorded by the Assistant Sub Inspector of Police, Pulpally Police Station, a case has been registered in Crime No. 263 of 1999 of that Police Station under S.324 IPC. 2. The earliest version of the incident given by the injured (shorn of unnecessary details) is to be stated here. Petitioner's father came to the tea shop conducted by one Sarasamma in the rented building let out to her by him (petitioner's father) and he (father of petitioner) was in a, fully drunken state. He asked one Krishnankutty, who was taking food ('Kanji') at that time from the tea shop of Sarasamma, why he was quarrelling and also threatened him that he would be beaten. Thereafter he told the injured that his father had grabbed the property belonging to him (petitioner's father) and that he (father of the injured) was not able to enjoy that property. When the injured objected abusing of his deceased father, petitioner's father scolded him also in filthy language. On hearing his father abusing the injured/first informant, petitioner's brother Shaiju came there. The injured came out of the tea shop to the road in front of that tea shop. Hurling abuses at him, petitioner stabbed him with a dagger knife. He also stabbed one Shiju, who is the friend of the first informant, who tried to separate the petitioner and the first informant. The alleged incident took place on 10.11.1999 at about 7.30 pm. 3. The ground for cancellation of the bail stated in the impugned order is that the statement of one Dr. Ibrahim who treated the injured recorded under S.161 Cr.P.C. disclosed that one of the injured sustained. "... a deep injury 3 x 2 cm. The alleged incident took place on 10.11.1999 at about 7.30 pm. 3. The ground for cancellation of the bail stated in the impugned order is that the statement of one Dr. Ibrahim who treated the injured recorded under S.161 Cr.P.C. disclosed that one of the injured sustained. "... a deep injury 3 x 2 cm. on the lower and of vertable column penetrating in the abdominal cavity." The learned Magistrate has further stated in the order impugned that the doctor has also stated that the injury on Shiju was on the chest 2x1 cm., which was deep entering into the thoracic and abdominal cavity and that the injuries are grievous in nature. The learned Magistrate proceeded on the basis that the accused had inflicted injury on Shiju on vital part of his body and that the de facto complainant had mentioned in the first information statement that the injury was very serious in nature. According to the Magistrate, an offence under S.307 IPC is revealed to have committed by the accused and material facts were suppressed by the investigating agency in the remand report. In short, the ground relied on for cancellation of the bail by the learned Magistrate is the availability of materials before the Court prima facie to come to a conclusion regarding the alleged commission of an offence under S.307 IPC and the suppression of material facts by the investigating officer in the remand report filed by him. 4. After cancelling the bail, the learned Magistrate directed to issue a non-bailable warrant to arrest and cause production of the accused before Court at the earliest. 5. Learned counsel for the petitioner Shri. Mathai argued vehemently before me that the materials available on record do not justify the conclusion reached by the learned Magistrate while cancelling bail already granted to the petitioner that a prima facie case of commission of an offence under S.307 is made out. 6. It is not proper on my part at this stage to express any view whether the materials so far collected by the investigating agency prima facie disclosed a case of commission of an offence punishable under S.307IPC and I need only to consider the question whether the learned Magistrate is justified in cancelling the bail of the petitioner. 7. 6. It is not proper on my part at this stage to express any view whether the materials so far collected by the investigating agency prima facie disclosed a case of commission of an offence punishable under S.307IPC and I need only to consider the question whether the learned Magistrate is justified in cancelling the bail of the petitioner. 7. While cancelling bail the learned Magistrate overlooked the fact that bail was not granted to the petitioner by him under S.437(1) or S.437(2) of the Criminal Procedure Code. Sub-s.(5) of S.437 provides that any Court which has released a person on bail under sub-s.(1) or sub-s.(2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail under S.437(1) or S.437(2). When a person is released under S.437(2) Cr.P.C. pending inquiry on the ground that sufficient grounds are not there to believe that he has committed a non-bailable offence, may be committed to custody by Court which released him on bail, if it is satisfied that there are sufficient grounds for so doing after inquiry is completed. It may be pertinent to point out that bail granted to the petitioner was not cancelled on that ground. The legal position is well settled that Court, before directing the arrest of the accused and committing him to custody, should consider it necessary to do so under S.437(5) Cr.P.C. Cancellation of bail may be done by the Court coming to the conclusion that after the challan had been filed there are sufficient grounds that accused had committed a nonbailable offence and that it is necessary that he should be arrested and committed to custody. Court may also order arrest and committal to custody on other grounds such as tampering of the evidence or that his being at large is not in the interests of justice. For cancellation of bail under S.437(5) Cr.P.C. it is necessary that Court should proceed on the basis that he has been deemed to have been released under S.437(1) or S.437(2). In the case on hand, it cannot be proceeded on the basis that the petitioner has been deemed to have been released under S.437(1) or S.437(2). 8. For cancellation of bail under S.437(5) Cr.P.C. it is necessary that Court should proceed on the basis that he has been deemed to have been released under S.437(1) or S.437(2). In the case on hand, it cannot be proceeded on the basis that the petitioner has been deemed to have been released under S.437(1) or S.437(2). 8. It is to be pointed out here that the investigation of the case is not completed and challan is not laid before Court. Investigating agency has not approached this Court or the Sessions Court for cancellation of bail granted on the ground that it has collected material to implicate the petitioner that he committed a non-bailable offence punishable under S.307 IPC. It appears that no opportunity was also given to the petitioner to be heard before cancellation of the bail already granted to him. 9. While considering the question of cancellation of bail, the following observation has been made by the Apex Court in Dolat Ram v. State of Hatyana (1995 SCC (Crl.)237): "4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evation or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, 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." 10. Learned Magistrate has not cancelled the bail granted to the petitioner on the ground of interference or attempt to interfere with the due course of administration of justice, or evation or attempt to evade the course of justice or abuse of the liberty granted to him. Learned Magistrate has not cancelled the bail granted to the petitioner on the ground of interference or attempt to interfere with the due course of administration of justice, or evation or attempt to evade the course of justice or abuse of the liberty granted to him. Petitioner was released on bail under S.436 Cr.P.C. and it is not a case of cancellation of bail granted to an accused indicated for commission of a nonbailable offence. The learned Magistrate is blissfully ignorant of the legal position that when an accused has been released on bail under S.436 and later a nonbailable offence is added, even then the bail granted cannot be cancelled, unless there is misuse of liberty granted. Bail can be cancelled only either under S.439(2) or under S.437(5) Cr.P.C. It is also the settled position of law that once bail is granted under S.436 and a charge sheet for a nonbailable offence is also filed, bail cannot be cancelled unless there is misuse of liberty granted. There is nothing in the impugned order to show that while passing the order of cancellation of bail the learned Magistrate followed the legal principle laid down by the Apex Court in the decision cited supra. The Apex Court has held in Bashir v. State of Haryana, AIR 1978 SC 55 that the Court before directing the arrest of the accused and committing him to custody, should consider it necessary to do so under S.437(5) Cr.P.C. This may be done by the Court coming to the conclusion that after the challan has been filed, there are sufficient grounds that the accused had committed a nonbailable offence and that it is necessary that he should be arrested and committed to custody. As the investigation is not completed and the final report is not yet filed by the prosecution, it is premature to come to a conclusion that the investigating agency suppressed the fact that the alleged commission of a nonbailable offence by the petitioner (offence under S.307IPC and ex facie the impugned order appeared to have been passed without giving any opportunity to the investigating officer, who is accused of suppression of material facts in his remand report, to be heard. Settled position of law is that the limited purpose of the remand application filed by the investigating agency is to bring to the notice of the Court the materials collected against an arrested accused to pursuade the Court to remand him to custody for the purpose of further investigation. The learned Magistrate appears to. have overlooked the legal position that one of the material to be considered for granting bail, if prima facie case is made out, is whether the presence of accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. The approach of the Court in the matter of bail is not that the accused should be detained by way of punishment. Very cogent and overwhelming circumstances are necessary for an order seeking cancellation of bail. Even if it is proceeded on the premise that a prima face case of commission of offence under S.307IPC is made out, the impugned order is unsustainable on the ground that the bail granted by the Magistrate under S.436 Cr.P.C. can be cancelled not by the Magistrate, but by this Court in exercise of the inherent powers of this Court or in exercise of powers conferred under S.439(2) Cr.P.C. by this Court or by the Court of Session. The Code of Criminal Procedure makes no express provision for cancellation of bail granted under S.436 and if at any subsequent stage of the proceedings, it is found that any person accused of a bailable offence is intimidating, bribing or tampering with prosecution witnesses or is attempting to abscond, High Court has power to cause him to be arrested, and commit him to custody for such period as High Court thinks fit. This, jurisdiction of High Court springs from the overriding inherent powers of High Court and can be invoked in exceptional cases only, when the High Court is satisfied that the ends of justice will be defeated unless the accused is committed to custody. The person committed to custody under the orders of High Court cannot ask for his release on bail under S.436 Cr.P.C. The High Court or Court of Session is conferred with power under sub-s.(2) of S.439 Cr.P.C. to cancel bail in regard to cases of persons accused of any offences where such persons were admitted to bail under Chapter XXXIII of the Criminal Procedure Code. The Magistrate cancelled the bail in a mechanical manner. Here is a Magistrate who, in blatant violation of the provisions of law and also in gross or utter misuse or abuse of his power cancelled the bail granted under S.436 Cr.P.C. in a hasty manner. Hence, the impugned order passed by the learned Magistrate is set aside. If the petitioner is arrested pursuant to the warrant issued by the learned Magistrate, he is directed to be released on bail forthwith.