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2002 DIGILAW 301 (KER)

Noushad v. State of Kerala

2002-05-17

K.THANKAPPAN

body2002
Judgment :- K. Thankappan, J. Petitioner in Crl. M.C. No. 4343/2002 is the 8th accused in Crime No. 169/97 of Anchal Police Station, which is pending as C.C. No. 5/2002 on the file of the Judicial Magistrate of the First Class-I, Punalur. The allegations against the petitioner are that he along with other accused committed offences punishable under sections 363,368,376 read with sec. 34 of the Indian Penal Code. It is submitted that the Investigation of the case was completed and final report had been laid before the Court. Thereupon, the learned Magistrate issued summons to the petitioner for his appearance. Since the petitioner did not appear in pursuance to the summons, the Magistrate issued a non-bailable warrant against him. The petitioner filed this application under section 482 of the Code of Criminal Procedure, hereinafter referred to as the Code for a direction to the learned Magistrate to release him on bail on his appearance in the court, in case he files an application for bail without considering the fact that a non-bailable warrant has been issued against him. 2. Petitioner in Crl. M.C. No. 4327/2002 filed under sections 482 and 483 of the Code is the 5th accused in Crime No. 130/98 of the Ramamangalam Police Station, which pending as C.C. No. 84/99 on the file of the Judicial Magistrate of the First Class, Kolencherry. The allegation against the petitioner is that he along with the other accused committed offences punishable under se. 143, 147, 447, 427, 506(i) and 294(b) read with sec. 149 of the Indian Penal Code. The final report has been filed before the court and the case is pending in committal proceedings. On receipt of the final report, the learned Magistrate issued summons to the petitioner for his appearance in the court, but the petitioner did not appear in court in pursuance to the summons and hence a non bailable warrant has been issued against the petitioner. The petitioner aprehends that if he appears before the court, he will be sent to jail. 3. As the facts and the issues involved in these two petitions are identical, both the applications are being disposed of by a common order. 4. The petitioner aprehends that if he appears before the court, he will be sent to jail. 3. As the facts and the issues involved in these two petitions are identical, both the applications are being disposed of by a common order. 4. After going through the averments contained in the applications and the arguments raised before this Court by the counsel appearing for the petitioners, this Court feels that it is a case to be dealt with in detail, as there are number of identical applications pending before this court seeking same direction. The identical facts of the cases pending before this court are that bailable and non bailable warrants have been issued by the Magistrates on the following grounds :- (1) The accused could not appear before the court after service of summons for their appearance. (2) The accused could not appear on the particular posting dates of the case, in which bail bonds have been already executed. (3) The accused could not appear and applications have been filed to excuse their non-appearance through their counsel and such applications were rejected. (4) The accused could not appear and had not applied for their non appearance either by filing written applications or oral submissions. 5. The courts are empowered to issue warrant of arrest, under the provisions of the Code. Chapter VI of the Code deals with the provisions for compelling the appearance of a person in the court as and when required. Sec. 70, 71 and 87 of the Code empower the Presiding Officer of a court to issue a warrant of arrest and such warrant shall be executed as in the manner prescribed in Chapter VI of the Code. Such warrant of arrest shall be in Form No. 2 appended to the Second Schedule of the Code. Sec. 76 of the Code reads as follows :- "76. Person arrested to be brought before Court without delay :- The Police officer or other person executing a warrant of arrest shall (subject to the provisions of Sec. 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person." Chapter XXXIII of the Code contains the provision for dealing with a person who appears or is brought before court on accusation of the commission of non bailable offence or bailable offence as the case may be. The first part of the Chapter contemplates that when a person appears in pursuance to summons issued by a court of law and if such person is accused of bailable offence, he shall be released on bail forthwith and if such person against whom commission of non-bailable offence is alleged, he shall be dealt with as per the provisions contained in the same Chapter. Sec. 437 of the Code provides that when any person accused of, or suspected of, the commission of any non-bailable offence is arrested or brought or appears before a court, such person may be released on bail subject to the conditions contained in sub-clauses (1) to (7). The Magistrate before whom a person is brought or appears, such person shall be released on bail on executing bond for his appearance with or without sureties on the condition that such person shall attend at the time and place mentioned in the bond shall continue to do so until otherwise ordered. 6. Sec. 441 of the Code prescribes that before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the Police Officer or court, as the case may be. A plain reading of this section implies that when an accused is released on bail on the conditions contained in the bail bond, he shall abide by the conditions stipulated in the bail bond.The section further stipulating that an accused shall be released on bail either on his own bond or by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer of Court, as the case may be. A plain reading of this section implies that when an accused is released on bail on the conditions contained in the bail bond. A plain reading of this section implies that when an accused is released on bail on the conditions contained in the bail bond. The section further stipulates that an accused shall be released on bail either on his own bond or by one or more sufficient sureties conditioned that such sureties should see that the person so released on bail shall attend at the time and place mentioned in the bond. Sec. 442 further stipulates that as soon as the bond has been executed, the person for whose appearance it has been executed shall be released in the manner prescribed in the section. The power under section 443 can be exercised by the Magistrates of Courts in special circumstances which enable them to cancel bail bonds and issue warrant of arrest directing such person released on bail be brought before them and order him to execute fresh bail bonds for his release, failing which such person so brought on warrant may be sent to jail. The circumstances under which the Magistrate is empowered to issue warrant of arrest directing the person so released on bail bond be brought before him are that when the surety or sureties apply for discharge the bond, either wholly or so far as related to the applicant. In such cases also, the Magistrates are empowered to call upon such person who was released on bail on such sureties to furnish other sufficient sureties, failing which, may commit him to jail. These are the two circumstances under which the Magistrates can issue warrant of arrest against a person released on bail. 7. Sec. 446 of the Code of Criminal Procedure contemplates the circumstances under which a bail bond can be forfeited and on forfeiting such bail bond for breach of conditions contained in the bail bond the procedure prescribed in Sec. 446-A also shall be followed and even if such forfeiture is ordered, the persons so released on the strength of the bond may be released on bail on execution of fresh personal bond or with such surety bonds by one or more persons as the court thinks fit and if no such fresh bonds are executed, in such cases the Magistrates are empowered to issue warrant of arrest of the persons who were released on bail and commit them in jail. This provision is added in the Code by the Amended Act, 1980 with effect from 23-9-1980. 8. It is argued on behalf of the petitioners that warrant of arrest is issued not to the accused alone, but some times to the witnesses also in criminal cases if they do not appear on the service of summons and on their subsequent appearance some of the Magistrates are committing them to jail without considering the circumstances under which they could not appear in the court. It is also noted that there are cases where counsel appearing for the accused have applied for excusing the nonappearance of the accused for one or two days, applications have not been considered by the Magistrate and the Magistrates are invariably committing such persons to jail on appearance. It is also seen that in some cases where bail bonds have not been forfeited or cancelled as per Sec. 446-A of the Code of Criminal Procedure, the accused persons are sent to jail without considering the circumstances under which they failed to appear in court. 9. Before concluding the discussion it is relevant to note some judicial pronouncements of this Court as well as that of the Apex Court regarding grant of bail by the Magistrates. In Talab Haji Hussain v. Madhukar Purshottam Mondkar and another, AIR 1958 S.C. 376, the Supreme Court held that the only reason for cancellation of a bail and ordering re-arrest of an accused who was released on bail and sending him to jail is the subsequent conduct of the accused which would cause threat to the continuance of a fair trial of the case charged against him. This decision deals with the circumstances under which a court can order re-arrest of a person who is released on bail and sent him to jail. In this context, it is relevant to consider the provisions contained in sec. 437 of the Code. Sec. 437 of the Code reads as follows :- "437. This decision deals with the circumstances under which a court can order re-arrest of a person who is released on bail and sent him to jail. In this context, it is relevant to consider the provisions contained in sec. 437 of the Code. Sec. 437 of the Code reads as follows :- "437. When bail may be taken in case of non-bailable offence-(1) When any person accused if, or suspected of, the commission of any non bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but - - (i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence." (iii) A reading of this provision would indicate that any person accused of, or suspected of, the commission of any non-bailable offence punishable with death or imprisonment for life or imprisonment for seven years or more or he had previously convicted on two or more occasions, such person shall not be released on bail but, he may be committed to jail. This provision by itself is not a total bar granting bail to an accused or to send him to jail. Sub-section (1) would clearly indicate that even in cases where coming under sub-clauses (i) and (ii), the Magistrates are empowered to grant bail and this position is considered by this Court in the decisions reported in Antony Cherian v. Purushothaman Pillai, 1987 (2) KLT 125, and Sukumari v. State of Kerala. 2000(1) KLT 22. It is held that the Magistrates have jurisdiction to grant bail to an accused who appears in the court or is brought in the court on a warrant of arrest on the accusation of commission of non-bailable offence exclusively triable by the Court of Sessions. 2000(1) KLT 22. It is held that the Magistrates have jurisdiction to grant bail to an accused who appears in the court or is brought in the court on a warrant of arrest on the accusation of commission of non-bailable offence exclusively triable by the Court of Sessions. In short, the healthy legal practice to be followed by the Magistrates, under the circumstances discussed in this order, is not to commit the person in jail, but to consider the application for bail and pass appropriate orders as per law. 10. From the above discussion, this Court is of the view that a direction can be issued to the Magistrates concerned to release the petitioners on the same day of their appearance in court, if they offer fresh sufficient bail bonds and sureties in case where the original bonds have been cancelled as per sec. 446-A of the Code and I do so. If the original bonds are not cancelled, the Magistrate shall act according to law. The criminal miscellaneous cases are disposed of as above.