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2019 DIGILAW 962 (KER)

Mohammed Yahiya v. State of Kerala

2019-11-15

R.NARAYANA PISHARADI

body2019
ORDER : The petitioner is the accused in the case registered as Crime No.1254/2018 of Mulanthuruthy police station. It is a case registered for the offences punishable under Ss.420 and 506(i) I.P.C. 2. The case was registered against the petitioner, on the basis of the complaint filed against him by the second respondent in the Magistrate’s Court concerned, which was forwarded to the police under S.156(3) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) for investigation. 3. The prosecution case is as follows: The petitioner is the uncle of the second respondent. On the noon of 01.12.2018, the petitioner took the car owned by the second respondent with his consent. The petitioner had promised that he would return the car in the evening on that day. He called the second respondent over phone in the evening and told him that he would return the car on the next day. On 02.12.2018, when the second respondent called the petitioner over phone, he told the second respondent that he would return the vehicle only if the second respondent paid him an amount of Rs.10,00,000/-. It is alleged that the petitioner threatened the second respondent that, if he approached the petitioner for the vehicle, he would kill him. 4. The petitioner filed an application in the Court of Session, Ernakulam under S.438 of the Code, seeking anticipatory bail. As per Annexure-B order, learned Sessions Judge allowed the application and granted pre-arrest bail to the petitioner on the following conditions: “1. The petitioner shall be released on bail in the event of his arrest in connection with the above crime on executing a bond for Rs.50,000/- with two solvent sureties for the like sum each to the satisfaction of the Arresting Officer/Investigating Officer as the case may be. 2. The petitioner shall appear before the investigating officer on every Saturday between 9.00 a.m. and 10.00 a.m. till the final report is filed. 3. The petitioner shall appear before the investigating officer for the purpose of interrogation as and when required by him, till the final report is filed. 4. The petitioner shall not intimidate or influence the witnesses or interfere with the investigation.” 5. The petitioner appeared before the investigating officer and he was arrested and released on bail pursuant to Annexure-B order. The petitioner shall appear before the investigating officer for the purpose of interrogation as and when required by him, till the final report is filed. 4. The petitioner shall not intimidate or influence the witnesses or interfere with the investigation.” 5. The petitioner appeared before the investigating officer and he was arrested and released on bail pursuant to Annexure-B order. It is alleged that during the interrogation by the police, the petitioner disclosed that he had kept the car at the parking area of an apartment owned by one Joby in Bangalore. 6. The investigating officer issued Annexure-C notice dated 23.02.2019 to the petitioner under S.91(1) of the Code to produce the car at the police station. The petitioner did not comply with that direction. The case diary reveals that, the investigating officer again issued a notice to the petitioner under S.91(1) of the Code, informing him that he had violated the conditions of bail by not producing the vehicle. Still, the petitioner did not produce the vehicle before the investigating officer. 7. Though the investigating officer had gone to Bangalore and conducted enquiry regarding the car, he could not seize the vehicle as it was not found at the place where the petitioner had allegedly parked it. 8. The investigating officer filed an application before the Court of Session, Ernakulam under S.439(2) of the Code to cancel the bail granted to the petitioner. As per Annexure-D order, learned Sessions Judge cancelled the bail granted to the petitioner. The aforesaid order is challenged in this petition filed under S.482 of the Code. 9. Heard learned counsel for the petitioner and the learned Public Prosecutor and also the second respondent. 10. The reason stated by the learned Sessions Judge, for cancellation of the bail granted to the petitioner, reads as follows: “The condition in the bail order was to appear before the Investigating Officer for the purpose of interrogation. Producing the vehicle before the Investigating Officer pursuant to interrogation is also part of investigation. Hence, it is clear that the accused has deliberately violated the conditions in the bail order.” 11. Learned counsel for the petitioner contended that, there was no condition imposed on the petitioner in the order granting bail that he shall co-operate with the investigation of the case and therefore, the petitioner has not violated any condition of bail by not producing the vehicle before the investigating officer. Learned counsel for the petitioner contended that, there was no condition imposed on the petitioner in the order granting bail that he shall co-operate with the investigation of the case and therefore, the petitioner has not violated any condition of bail by not producing the vehicle before the investigating officer. 12. As per Annexure-B order, the petitioner was bound to appear before the investigating officer for the purpose of interrogation as and when required. There was no specific condition imposed on the petitioner, in the order granting him bail, that he shall co-operate with the investigation of the case. Does it mean that the petitioner was required only to appear before the investigating officer to enable the investigating officer to interrogate him? Does it mean that the petitioner had no obligation to co-operate with the investigation? 13. In my view, in every case, where anticipatory bail is granted to a person by the court, in exercise of its judicial discretion, there is an implied condition imposed on such person that he shall co-operate with the investigation of the case. It is not necessary to specifically state in the order granting bail to a person that he shall co-operate with the investigation of the case. If a person, who is released on bail, does not co-operate with the investigation of the case, the State can certainly approach the court which granted bail to such person, to cancel the bail. In such situations, the court would be justified in cancelling the bail on the ground that the accused had violated the conditions of the order granting him bail. 14. But, a larger question arises here, whether non-production of an article by the accused, pursuant to a notice issued to him by the investigating officer under S.91(1) of the Code, amounts to not co-operating with the investigation of the case. As per S.2(h) of the Code, investigation includes all the proceedings under the Code for the collection of evidence conducted by a police officer. Therefore, issuing a notice under S.91(1) of the Code to an accused by the investigating officer can be considered as a part of the investigation of the case. As per S.2(h) of the Code, investigation includes all the proceedings under the Code for the collection of evidence conducted by a police officer. Therefore, issuing a notice under S.91(1) of the Code to an accused by the investigating officer can be considered as a part of the investigation of the case. But, if an accused does not produce an article before the investigating officer in response to a notice issued to him under S.91(1) of the Code, it cannot be found that his conduct amounts to not co-operating with the investigation of the case. If an accused does not produce the vehicle before the investigating officer, search of it can be conducted and it may be seized by the police. In the aforesaid circumstances, I am of the view that Annexure-B order passed by the learned Sessions Judge cannot be sustained in law and it has to be set aside. 15. In this context, I take note of the fact that Annexure-B order granting pre-arrest bail was passed by the learned Sessions Judge taking note of the fact that custodial interrogation of the petitioner was not necessary. If the State is aggrieved by the order granting anticipatory bail to the accused, it is at liberty to approach the higher court for cancellation of the bail. If a Court of Session has admitted an accused person to bail, the State has two options. It may move the Sessions Judge, if certain new circumstances have arisen which were not earlier known to the State. The State may as well approach the High Court being the superior court under S.439(2) of the Code to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail (See Gurcharan Singh v. State AIR 1978 SC 179 ). 16. Consequently, the petition is allowed and Annexure-D order is set aside. It is made clear that this order will not preclude the State to approach the higher court for cancellation of the bail granted to the petitioner on the ground that the learned Sessions Judge has wrongly or illegally granted pre-arrest bail to the petitioner.