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2018 DIGILAW 209 (JK)

Kuldeep Raj v. State of J&K

2018-04-06

JANAK RAJ KOTWAL

body2018
JUDGMENT : 1. Petitioner, Kuldeep Raj, who is involved in commission of the offence of ‘stalking’ under section 354-D RPC in FIR No. 75/2017 of Police Station, Khour, was admitted to bail by the Judicial Magistrate (Munsiff), Akhnoor vide his order dated 17.10.2017. Prosecution, however, filed application for cancellation of bail alleging that petitioner was continuously threatening the prosecution witnesses that he will forcibly lift PW-X (name not disclosed here) and marry her and in case other witnesses oppose, they will be eliminated. Learned Magistrate by his order dated 12.03.2018 allowed the application and cancelled the bail of the petitioner till evidence of the prosecution witnesses is recorded or till further orders. Petitioner challenged the order dated 12.03.2018 passed by the Magistrate in a revision before the court of the Ist Additional Sessions Judge, Jammu. The revisional court dismissed the revision taking the view that order dated 12.03.2018 was an interlocutory order and therefore, revision was not maintainable. 2. In this petition under section 561-A of the Code of Criminal Procedure (for short, the Code), petitioner assails and seeks quashing of the order dated 12.03.2018 passed by the learned Magistrate and order dated 28.03.2018 passed by the learned revisional court. 3. Heard learned counsel for the petitioner. 4. Order passed by the learned Magistrate dated 12.03.2018 ex facie is not only wrong and illegal, but without jurisdiction too, to say the least. This petition, therefore, deserves to be allowed even without notice to the other side. 5. The offence of ‘stalking’ defined and punishable under section 354-D RPC inserted vide Criminal Law Amendment Act, 2013 is a bailable offence in terms of Schedule-II to the Code. This was noticed even by the learned Magistrate in his order dated 17.10.2017, whereby the petitioner was admitted to bail. Under Section 496 of the Code, in a bailable offence, bail is a right and the accused is to be released as soon as he is arrested or appears or is brought before the court. It is not only that in a bailable offence ‘bar contained under Section 497 Cr.P.C is not attracted’ as has been observed by the learned Magistrate in the order dated 17.10.2017. Bail rather is a matter of right. 6. When the offence is bailable and release on bail is a statutory right of the accused, question of cancellation of bail does not arise. Bail rather is a matter of right. 6. When the offence is bailable and release on bail is a statutory right of the accused, question of cancellation of bail does not arise. The Code does not provide for any provision for cancellation of bail in a bailable offence. In this context, it is important to note that Sub-Section (5) of section 497 of the Code, which inter alia empowers any court to cancel bail and order arrest of a person, who has been released on bail by that court, also makes it clear that bail can be cancelled only in a case when a person is released on bail under Section 497, that is, in a non-bailable offence. 7. Sub-section (5) of Section 497 Cr.P.C. is reproduced as under: “(5) The High Court or Court of Sessions and, in the case of a person released by itself, any other Court may cause any person who has been released under this section to be arrested and may commit him to custody.” 8. In bailable offences, cancellation of bail is not permissible, given the very nature of the offence. The only power available to the court under Sub-Section (2) of Section 496 of the Code is to refuse to release the accused, if he has failed to comply with the conditions of bail bond, ‘as regards the time and place of attendance’ when he appears before the court on a subsequent occasion or is brought in custody. This may be explained like this. If during trial for a bailable offence, accused does not appear before the court on a date of hearing and court issues warrant of arrest for securing his appearance before the court, the court may refuse to release him when he appears or is brought in custody before the court on or before the next date in the case. 9. Learned Magistrate has, therefore, erred in cancelling the bail. Learned revisional court has similarly erred in not taking note of this important aspect of the order passed by the learned Magistrate. It appears, the learned revisional court was concerned more with the maintainability of the revision petition and had not even read the order impugned before him. 9. Learned Magistrate has, therefore, erred in cancelling the bail. Learned revisional court has similarly erred in not taking note of this important aspect of the order passed by the learned Magistrate. It appears, the learned revisional court was concerned more with the maintainability of the revision petition and had not even read the order impugned before him. The question of maintainability of the revision petition should not have been considered, shorn of consideration to the question as to whether the Magistrate had the jurisdiction to pass the order cancelling bail in a bailable offence. 10. Viewed thus, order dated 12.03.2018 passed by the learned Magistrate and order dated 28.03.2018 passed by the learned revisional court are quashed. Petitioner shall be released forthwith subject to his furnishing fresh bail bonds with one surety in the amount of 20,000 rupees each to the satisfaction of the trial court. 11. As a closing note, it needs to be emphasized that the Presiding Officers of the courts at all levels are expected to show more sensitivity in dealing with questions relating to fundamental rights of the citizens like right to liberty. In this case, even if the Magistrate was satisfied about the reason for which cancellation of bail was sought by the prosecution, cancellation of bail was not the only option to deal with the situation. There is no dearth in the criminal law of the provisions relating to preventive measures. Therefore, while allowing this revision petition, it is made clear that it shall remain open for the law enforcing agencies to take appropriate preventive measure in the matter, if the need still be. 12. Registry shall send a copy of this order each to both the courts below.