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2013 DIGILAW 217 (MAD)

Tamil Mani v. Kannaih

2013-01-09

T.SUDANTHIRAM

body2013
Judgment 1. The learned counsel for the petitioners submitted that the respondent herein filed a private complaint under Sections 3(i) (iv) (v)(vii)(x) of SC/ST (Prevention of Atrocities) Act, 1989 r/w Sections 34, 118, 120(B), 297, 406, 420, 427, 447, 506(ii) of IPC and it is pending before the learned Judicial Magistrate, Karaikudi in P.R.C.No.25 of 2011. The case is not yet committed to Sessions. In view of Section 209 of Cr. P.C the petitioners got apprehension that they may be remanded to custody at the time of committing the case to the Sessions. In the said circumstance, the petitioners pray for a direction from this Court to the learned Magistrate to permit the petitioners to execute bond along with sureties and thereby ensuring the presence of the petitioners before the Sessions Court. 2. The learned counsel for the petitioners also relied on the decision of the Hon'ble Andhra High Court in the case of Mohd. Abdul Subhan Vs. State of A.P. and Others reported in 2001 (2) ALT Cri 297. 3. This Court considered the submissions. 4. It appears in this matter that originally a private complaint was filed by the respondent and the same was dismissed by the learned Magistrate. Thereafter, a revision was preferred before the Sessions Court and the Session Court partly allowed the Revision directing the learned Magistrate to take the application against four persons and the petitioners are among them. The petitioners also preferred a Revision before this Hon'ble Court in Crl. RC. Nos. 811 and 812 of 2011 and the said revisions have been dismissed on 06.07.2012. In the said circumstance, the petitioners filed Special Leave Petition before the Hon'ble Supreme Court and the same was also dismissed. 5. In the said circumstance, the case is to be committed to the Sessions by the learned Magistrate. This case arises out of a private complaint and the petitioners not being earlier arrested by the police in connection with this case and not being released on bail, problem arises to the petitioners. A reasonable apprehension arises in the mind of the petitioners that they may be remanded to custody by the learned Magistrate before committing the case to the Sessions as per Section 209(a) of Cr.P.C. In a similar situation, when a matter arose out of a private complaint while dealing with Section 209 of Cr. A reasonable apprehension arises in the mind of the petitioners that they may be remanded to custody by the learned Magistrate before committing the case to the Sessions as per Section 209(a) of Cr.P.C. In a similar situation, when a matter arose out of a private complaint while dealing with Section 209 of Cr. P.C., the Hon'ble Andhra Pradesh High Court observed as follows in the decision cited above. 18. The clause 'subject to bail' used in the Section certainly gives discretion to the Magistrate. In KEWAL KISHAN Vs. SURAJ BHAN( AIR 1980 SC 1780 ), the Apex Court held as follows: "If the committing Magistrate thinks that it is not necessary to commit the accused who may be on bail to custody he may not cancel the bail. This has been made clear by the words 'subject to the provisions of this Code relating to bail' occurring in clause (b) of Sec, 209" 19. Following the said judgment, this Court in V.CHINNA REDDY v. N.VIDASAGAR REDDY (1982 Cri. LJ 2183) held as follows: If the accused are enlarged on bail, the committing Magistrate has no power to cancel it on the ground that he is committing the accused to Sessions Court for trial. The legislature in its wisdom, has therefore, employed the expression "Subject to the provisions of the Code relating to bail in clause (b) of Section 209 of Cr. P.C. for the guidance of the Magistrate. This expression makes it abundantly, clear that the Magistrate will have to remand the accused at the time of committing the accused to Sessions Court for trial "subject to the provisions of the code relating to bail". This expression used in Clause (b) of Sec. 209 Cr. P.C., clearly refers to Sections 436, 437, 438 and 439 of Cr. P.C., which contain the provisions relating to bail. In the absence for any such misuse or abuse, this provision requires the Magistrate not to remand the accused to custody if he was already on bail granted by the Sessions Court or the High Court and he should be on bail during and until the conclusion of the trial. The Magistrate should therefore, have due regard to this expression "subject to the provisions of this code relating to bail" employed in clause(b) of Section 209 Cr. P.C while passing an order committing the accused to Sessions Court for trial. The Magistrate should therefore, have due regard to this expression "subject to the provisions of this code relating to bail" employed in clause(b) of Section 209 Cr. P.C while passing an order committing the accused to Sessions Court for trial. The Magistrate has no right or power to ignore this important expression used in Sec.209 (b) and consequently has no jurisdiction to remand the accused to custody, while committing the accused to Sessions Court for trial". 20. In FREE LEGAL AID COMMITTEE, JAMSHEDPUR v. STATE OF BIHAR ( AIR 1982 S.C. 1463 ) the Apex Court held as follows: "It is also clear from S.209 Cl.(b) of the Cr. P.C. that the Magistrate has discretion to release the accused on bail "during and until completion of trial" even in cases where the offence is triable by the Court of Sessions. We, therefore, feel that it would avoid hardship to an accused if the Magistrate, while releasing the accused on bail, requires execution of a bond with or without surety, as the case may be, binding the accused not only to appear as and when required before him but also appear when called upon in the Court of Session" 21. The situation before the Apex Court was that there had been a practice in the State of Bihar that when the accused was released on bail by the Magistrate, the bail used to be granted to him only during the pendency of inquiry before the Magistrate and, therefore, when the case used to be committed to the Court of Session, the accused used to be re-arrested and brought before the Court of Session when he had to apply once again for fresh bail. To obviate that difficulty, the above excerpted observations came to be made by the Apex Court. The Apex Court held that in such a situation in future under Section 441(3) of the Code the accused can be asked to enter into a bond binding himself to appear before the Court of Session and in the event of committal he would not have to be re-arrested adn brought before the Court of Session. 22. It is obvious thus that if the accused has already been enlarged on bail prior to the committal proceedings he cannot be remanded to custody during the committal proceedings. 22. It is obvious thus that if the accused has already been enlarged on bail prior to the committal proceedings he cannot be remanded to custody during the committal proceedings. Even when the bail was granted limiting it to investigation stage the accused can be asked to enter into a bond. As a necessary corollary it follows that it is not an absolute rule to remand the accused into custody and both the clauses (a) and (b) are only the enabling provisions to remand the accused into custody subject to the provisions contained in the Code relating to bail. The scheme of the Code and the back drop under which the amendment was brought in as discussed supra shows that such a power to remand him to custody is necessary or otherwise, the further remand would become illegal in the absence of any legislative mandate 23. Having regard to the said interpretation of the word 'shall' in two of the cognate provisions the word 'shall' used in Section 209 shall have to be constued as not mandatory. This interpretation in my considered view is consistent with the intention of the Parliament in bringing the amendment and scheme of the Code as discussed supra. 24. In private P.R.C cases, if there are any earlier proceedings initiated by the police, having been concluded by submitting a final report for dropping the same in sequel thereto a private complaint has been filed by the complainant, if they obtained bail earlier during the police proceedings that would ensure to the benefit of the accused at the time of committal proceedings. But if no such earlier proceedings have been initiated by the police and the case emanated only on a private complaint filed by the complainant or even in the wake of initiation of criminal proceedings they have not been arrested by the police nor they obtained any anticipatory bail, they can be directed to enter into a bond to ensure their presence before the Sessions Court. 6. 6. Fully agreeing with the ratio laid down by the Hon'ble Andra Pradesh High Court, I am of the view that in the case of private complaint where accused have not been arrested earlier and not obtained any bail it would be sufficient if the accused is directed to execute bond along with the sureties before committing the case to the court of Sessions and thereby without remanding the accused their presence may be ensured before the Sessions Court for trial. 7. In this case, according to the learned counsel for the petitioners, the petitioners have already appeared before the learned Judicial Magistrate, Karaikudi. As long as the court is satisfied that the petitioner will not evade justice and will be available for trial before the court of Session there is no impediment for this court to direct the Magistrate not to remand the accused to custody in the event of committing the case to Sessions exercising the power under Section 482 of Cr. P.C. Accordingly, it is ordered that the learned Judicial Magistrate, Karaikudi shall permit the petitioners to enter into a bond along with sureties on such terms and conditions deemed fit by him in the event of committing the case in P.R.C.NO.25 of 2011 to the Court of Sessions and the petitioners need not be remanded to custody. 8. With the above direction, this petition is allowed.