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2009 DIGILAW 719 (KER)

MAHESH v. STATE OF KERALA

2009-08-03

K.HEMA

body2009
ORDER : K. Hema, J. 1. If an accused violates any condition imposed by the High Court or the Sessions Court in the order granting bail, can the Magistrate himself proceed against him for such violation, under the provisions of the Code of Criminal Procedure ('the Code', for short). Is it necessary for the Magistrate to address this Court to cancel bail? 2. This Court granted bail to the third accused, as per order dated 4.8.2008 in B. A. No. 4368/2008, on condition that he shall report before the investigating officer, on every alternate day, between 10 a.m. and 1 p.m., until further orders. Another condition was that he shall not leave the limits of the police station within which the crime is registered, except with the previous permission of the learned Magistrate. 3. Bail was granted to 1st and 2nd accused by the Sessions Court as per order in Crl.M.P.3251/07 dated 14.8.2007 on condition that they shall report before the investigating officer on every Monday and Thursday between 10 a.m. and 11 a.m. until the final report is filed. All the three accused executed the bond before the Magistrate Court and were released on bail. 4. The Deputy Superintendent of Police, who is the present investigating officer filed a report before the Magistrate Court stating that all the three accused failed to report before Investigating Officer and violated the conditions imposed by the High Court and Sessions Court. The 1st and 2nd accused did not report before the investigating officer, after 4.9.2008 and 22.9.2008 respectively and 3rd accused, since 15.9.2008. Therefore, he requested the Magistrate Court to take necessary action in the matter. Learned Magistrate therefore sent a report to this Court to cancel bail, since according to him, bail granted by the High Court can be cancelled only by the High Court. 5. Notice was issued to third accused by this Court, calling upon him to show cause why bail shall not be cancelled. He entered appearance through counsel and filed an affidavit stating that he was laid up etc. Heard both sides. Learned Public Prosecutor argued that as per the settled position of law, if the accused violates any condition imposed by the High Court or the Sessions Court while granting bail u/s 439 of the Code, bail can be cancelled only by the High Court or Sessions Court. Heard both sides. Learned Public Prosecutor argued that as per the settled position of law, if the accused violates any condition imposed by the High Court or the Sessions Court while granting bail u/s 439 of the Code, bail can be cancelled only by the High Court or Sessions Court. The Magistrate has no power to cancel the bail and hence, bail granted to 3rd accused may be cancelled, it is submitted. 6. Learned Public Prosecutor also relied upon a decision of the Supreme Court reported in Gurcharan Singh v. State (Delhi Admn.) AIR 1978 SC 179 in support of his arguments. The relevant portion of the above decision is extracted hereunder: Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court 7. In Narendra K. Amin (Dr.) v. State of Gujarat (2008) 13 SCC 534, It was held that "under the scheme of the Code, the application for cancellation of bail can be filed before the Court granting the bail if it is a Court of Session or the High Court". 8. Learned Counsel for 3rd accused contended that the 3rd accused was unable to report before the investigating officer, since he was laid up due to viral hepatitis. The 3rd accused filed an affidavit before this Court and also produced a medical certificate and contended that there was no wilful default or breach of any condition imposed, while granting bail and hence, bail may not be cancelled. 9. On hearing both sides and on going through report of learned Magistrate and report of the investigating officer (which was filed before Magistrate Court), I find that the only request made by Investigating Officer is to take "necessary action" in the matter, since accused violated conditions imposed by the High Court and the Sessions Court in the bail order. To find out what the Magistrate can do in such a situation, firstly, a reading of Sections 437 and 439 of the Code is essential. To find out what the Magistrate can do in such a situation, firstly, a reading of Sections 437 and 439 of the Code is essential. The relevant portion from the above provisions read as follows: 437. When bail may be taken in case of non-bailable offence.-- (1) When any person accused of, 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) xxxx 10. Section 439 of the Code reads as follows: 439. Special powers of High Court or Court of Session regarding bail.-- (1) A High Court or Court of Session may direct-- (a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-section; (b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice. (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody 11. On a comparison of the provisions contained in Section 437 and Section 439 of the Code, I note that there is some difference in the nature of the powers exercisable by the Magistrate Court and High Court and the Sessions Court, while granting bail to an accused. On a comparison of the provisions contained in Section 437 and Section 439 of the Code, I note that there is some difference in the nature of the powers exercisable by the Magistrate Court and High Court and the Sessions Court, while granting bail to an accused. u/s 437 of the Code, the Magistrate may by himself release the accused on bail, but, as per Section 439, the High Court or the Sessions Court can only "direct" that the accused be released on bail. The expression used in Section 437 is "may be released on bail whereas, in Section 439 of the Code what is stated is, "direct that any person accused of an offence and in custody be released on bail". 12. Thus, it is clear that if the High Court or Sessions Court grants bail to an accused u/s 439 of the Code, it is the Magistrate who actually "releases" him on bail. The High Court or the Sessions Court only "directs" that the accused be released on bail, but the Magistrate "releases" him on bail, under direction from the Superior Courts. However, before he is released on bail under direction from the Superior Courts, the accused is bound to comply with an inevitable legal formality which is contained in Section 441 of the Code, Section 441 of the Code reads as follows: Section 441. Bond of accused and sureties.- (1) 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. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Session or other Court to answer the charge. (4) For the purpose of determining whether the sureties are fit or sufficient, the Court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause an inquiry to be made by a Magistrate subordinate to the Court, as to such sufficiency or fitness. 13. As per Section 441(1) of the Code, before any person is released on bail, he shall execute a bond that such person shall attend at the time and place mentioned in the bond and continue to attend, until otherwise directed by the Court. Sub-section (2) of Section 441 provides that where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. Section 441 does not make any difference between the bond to be executed on the order of the Magistrate or the superior Courts. Whether it be on the basis of an order passed by the Magistrate Court u/s 437 or by the Sessions or High Court u/s 439 of the Code, the nature of bail bond to be executed is the same u/s 441 and it must be in accordance with the terms and conditions imposed in the bail order by respective court. 14. Once the bail bond is executed by the accused and he is released on bail, if he violates any condition of the bail bond, the consequences u/s 446A of the Code shall follow, Section 446A reads as follows: Section 446A. 14. Once the bail bond is executed by the accused and he is released on bail, if he violates any condition of the bail bond, the consequences u/s 446A of the Code shall follow, Section 446A reads as follows: Section 446A. Cancellation of bond and bail bond.- Without prejudice to the provisions of Section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition-- (a) the bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled; and (b) thereafter no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition: Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient. 15. Section 446A deals with cancellation of bail bond. A joint reading of Sections 439, 441, and 446A of the Code, shows that when a person is granted bail by the High Court or Sessions Court, he shall be released on bail only after execution of a bail bond, as provided u/s 441 of the Code. If any condition is imposed by the High Court or the Sessions Court, such condition shall also be incorporated in the bail bond. If any of such condition is violated by the accused and thereby, such bond is forfeited by any person or persons, who executed the bail bond, the bond shall stand cancelled, by virtue of Section 446A of the Code. 16. The cancellation of bail bond u/s 446A of the Code is an automatic eventuality and it occurs, on account of breach of condition in the bail order and consequent forfeiture of the bail bond. 16. The cancellation of bail bond u/s 446A of the Code is an automatic eventuality and it occurs, on account of breach of condition in the bail order and consequent forfeiture of the bail bond. Section 446A of the Code does not make any difference in the case of bail bond executed on the strength of bail order passed by the Magistrate Court or by the High Court or Sessions Court. It applies equally to the bail bond executed either on the basis of an order passed u/s 437 or u/s 439 of the Code and the consequence u/s 446A is the same to such bond. 17. If bail bond stands cancelled u/s 446A of the Code, as a consequence of violation of condition in the bail order, the Magistrate is bound to proceed against the accused to procure his presence in court and also for forfeiture of bond. For this purpose, non-bailable warrant may be issued against him. If the accused is arrested and produced in Court, the Magistrate may also commit him to custody, subject to the provision in Section 446A(b) of the Code. Therefore, it follows that, if any condition in the bail order issued by the Superior Court is violated, the Magistrate himself can independently proceed against the accused for procuring his presence or to proceed against him for forfeiture of bond. It may not be necessary for him to address the High Court or Sessions Court to cancel bail. Section 446A is not controlled by Section 437(5) or 439(2) of the Code. 18. Section 446A of the Code deals with "cancellation of bail bond", whereas, Section 437(5) or 439(2) is invoked for "cancellation of bail". There is a difference between "cancellation of bail bond" and "cancellation of bail." "Cancellation of bail bond" takes place automatically u/s 446A of the Code whereas, "cancellation of bail" is often ordered u/s 437(5) or 439(2) of the Code, under exceptional circumstances. In fact, there is no provision in the Code which, in express terms, deals with powers of the Court to "cancel bail". Neither in Section 437(5) nor in 439(2) of the Code, the expression "cancellation of bail" is seen used. 19. Going by the language of the Code, what is contemplated u/s 437(5) and 439(2) of the Code, is only issuance of a direction to arrest and commit the accused to custody. Neither in Section 437(5) nor in 439(2) of the Code, the expression "cancellation of bail" is seen used. 19. Going by the language of the Code, what is contemplated u/s 437(5) and 439(2) of the Code, is only issuance of a direction to arrest and commit the accused to custody. But, such power is often referred to by the Bench and the Bar as "cancellation of bail" and the said expression "cancellation of bail" is crystallised by its usage, in various judicial pronouncements. However, before issuing a direction to arrest and commit to custody u/s 437(5) or 439(2) of the Code, it is necessary for the court concerned to cancel the bail and this may be the reason why reference is made in the precedents, as "cancellation of bail". 20. To cancel the bail u/s 437(5) or 439(2) of the Code very cogent and overwhelming reasons are also to be stated. The court shall not cancel bail in a routine manner, u/s 437(5) or 439(2) of the Code, as per law. This is the settled position of law. But, the position u/s 446A of the Code is totally different. If the Magistrate Court is satisfied that there is breach of condition of bail bond and thereby, forfeiture of the bond, the bond automatically stands cancelled u/s 446A of the Code. 21. However, a mere violation of condition in the bail order will not lead to automatic cancellation of bail bond u/s 446A of the Code. Apart from violation of condition in the bail order, the Court must also be satisfied that the bond is forfeited then alone, bail bond would stand cancelled and the accused can be proceeded against. It is the forfeiture of the bail bond which is crucial u/s 446A of the Code. If the breach of condition is not wilful and is due to reasons beyond his control, it cannot be said that there is forfeiture of bond. The question is dealt with in Rajan @ Kannadi Rajan and Others Vs. State of Kerala, and it is held thus: A bond for appearance can be said to be forfeited, only if there is a wilful default on the part of the accused in not appearing before the court. It is needless to say that an accused can be absent in court due to various reasons on a particular occasion. State of Kerala, and it is held thus: A bond for appearance can be said to be forfeited, only if there is a wilful default on the part of the accused in not appearing before the court. It is needless to say that an accused can be absent in court due to various reasons on a particular occasion. When the counsel files an application, it follows that the accused was vigilant and he had taken steps to instruct his counsel to file an application. Such an accused cannot be said to have forfeited the bond by reason of any wilful default. It is only in cases where there is wilful default on the part of the accused to appear in court, forfeiture of bond will follow and penalty will incur. 22. In State of Kerala v. Anil Kumar 2005 (4) KLT 59 (C. No. 79), referring to cancellation of bail, this Court held thus: "an innocent violation of any condition imposed by the court will not ipso facto lead to cancellation of bail u/s 439(2) Code of Criminal Procedure. The crucial and vital question is whether there has been deliberate, contumacious and unjustified infraction of the conditions imposed by the court". It is needless to say that if the court cannot cancel bail, if violation of condition is not wilful or deliberate, it is only reasonable to hold that such violation (which is not wilful or intentional) shall also not lead to an automatic cancellation of bail bond u/s 446A of the Code. 23. It must also be borne in mind that whether bail bond stands cancelled u/s 446A or bail is cancelled u/s 437(5) or 439(2), the consequences which the accused may face are more or less the same. He may be arrested and committed to jail. Therefore, the courts shall be extremely cautious and careful while proceeding against an accused on the ground that bail bond stands cancelled. 24. To sum up, I hold that if the Magistrate comes across with instances of violation of condition of bail or if a report is filed by the investigating officer before the Magistrate Court, pointing out violation of condition of bail granted by the Superior Courts without there being any request for "cancellation of bail", nothing prevents the Magistrate from proceeding against the accused, under appropriate provisions of law, as indicated above. Nothing in the Code prohibits the Magistrate from proceeding against the accused, if the bail bond executed on the strength of the order issued by the High court or Sessions Court stands cancelled u/s 446A of the Code. It is not even necessary for the Magistrate to address the High Court or the Sessions Court to cancel bail. However, if there is an application for cancellation of bail granted by the High Court or Sessions Court, the position will be different and the Magistrate Court will have to proceed, as per the settled legal position. 25. Now coming to the facts, I find that the High Court passed a bail order in favour of 3rd accused and he executed bail bond u/s 441 of the Code before Magistrate Court. Thereafter, he was released on bail by the Magistrate Court. If there is any violation of condition in the bail order, there may be breach of bail bond and forfeiture of bond. Therefore, instead of sending a report to this Court, learned Magistrate ought to have considered whether there is automatic cancellation of bail bond u/s 446A of the Code and proceeded in accordance with law, especially since there is no request from the investigating officer to cancel the bail. 26. Since there is no application for cancellation of bail, it is unnecessary for this Court to proceed u/s 439(2) of the Code. The investigating officer has only sought for "necessary action" to be taken by the Magistrate Court. Learned Magistrate is not powerless to proceed against the accused who breaches a condition of bail imposed by the Superior Courts and there is automatic cancellation of bond u/s 446A of the Code. In the above circumstances, learned Magistrate shall proceed in accordance with law, as indicated in this order. The matter is disposed of accordingly.