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2016 DIGILAW 312 (KER)

Shajil M. K. v. State of Kerala

2016-03-17

BHASKARAN PILLAI SUDHEENDRA KUMAR

body2016
ORDER : 1. This is an application filed under Section 439 of the Code. The petitioner is the accused in Crime No. 6/2016 of Edavana Police Station registered for the offence under Sections 450, 376(2)(f) and 506(i) IPC. 2. The prosecution allegation is that the petitioner committed rape on the de facto complainant, aged 38 years on so many occasions from 04/11/2015 onwards. The petitioner also threatened that he would kill her, if she divulged the incident to anybody. The petitioner surrendered before the Court on 17/02/2016 and ever since he has been in custody. 3. Heard. 4. The learned Public Prosecutor has submitted that the final report has been already filed by the police after completing the investigation. The petitioner is not involved in any other offence of similar nature. The petitioner is having a place of abode in Kerala. Considering the facts and circumstances of the case, I am of the view that the further detention of the petitioner is not necessary in this case. In the said circumstances, I am inclined to grant bail to the petitioner. In the result, this application stands allowed and the petitioner shall be enlarged on bail on condition of the petitioner executing a bond for Rs. 30,000/- (Rupees thirty thousand only) with two solvent sureties, each for the like sum to the satisfaction of the jurisdictional Magistrate and subject to the following further conditions: "(i) The petitioner shall not intimidate or influence the witnesses who are likely to give evidence before the Court. (ii) The petitioner shall not get involved in any other offence while on bail." 5. Before concluding, I may point out that the learned Magistrate did not mention the brief facts of the case in the order. It is common experience that many of the Courts dealing with the application under Section 437 of the Code fail to mention the facts in brief in the order disposing of the bail application. Whether the Courts are bound to record the facts in brief in the order disposing of the bail application, is the question to be decided now. The sub-section (4) of Section 437 of the Code mandates that an Officer or a Court releasing any person on bail under sub-section (1) or sub-section (2) of Section 437 of the Code shall record in writing his or its reasons or special reasons for so doing. The sub-section (4) of Section 437 of the Code mandates that an Officer or a Court releasing any person on bail under sub-section (1) or sub-section (2) of Section 437 of the Code shall record in writing his or its reasons or special reasons for so doing. Thus, it is clear from sub-section (4) of Section 437 of the Code that it is mandatory that the reasons must be stated in the order granting bail under sub-section (1) or sub-section (2) of Section 437 of the Code. 6. The Apex Court in Mansab Ali v. Irsan, 2003 KHC 781 : (2003) 1 SCC 632 : AIR 2003 SC 707 : 2003 SCC (Cri) 399 : 2003 CriLJ 871 held that in granting or refusing the bail, the Courts are required to indicate, may be very briefly, the reasons for grant or refusal of bail. Thus, it is clear from the above decision of the Apex Court that the Court must assign reasons for the grant or refusal of the bail. 7. Giving reasons is different from discussing the merits or demerits. At the stage of granting bail, a detailed examination of all the materials and elaborate documentation of the merits of the case is not to be undertaken. However, while granting or refusing the bail, the reasons for prima facie concluding why the bail was granted or refused must be indicated in the order. 8. The reasons are always based on the facts of the case. Therefore, without mentioning the facts, no reason can be recorded. This would mean that the reasons are inter-linked with the facts of the case. If that be so, it is necessary to mention the facts in brief before mentioning the reasons in the order granting or refusing the bail by the Court under Section 437 of the Code. The facts would inter-alia include the date of arrest/surrender of the accused and the rank of the accused. Therefore, it is necessary for the Court to mention the date of arrest/surrender of the accused and also the rank of the accused, if there are two or more accused in the crime. The facts would inter-alia include the date of arrest/surrender of the accused and the rank of the accused. Therefore, it is necessary for the Court to mention the date of arrest/surrender of the accused and also the rank of the accused, if there are two or more accused in the crime. The upshot of the above discussion is that it is mandatory that the Court must record the facts in brief, including the date of arrest/surrender of the accused and the rank of the accused, if there are two or more accused in the crime, in the order granting or refusing the bail. It is also mandatory that while granting or refusing the bail under Section 437 of the Code, the Courts must indicate briefly the reasons for grant or refusal of the bail. All the Subordinate Courts in the State, dealing with application under Section 437 of the Code, shall follow the above mandate while disposing of the bail applications in future.