High Court of KeralaSingle Judge2014-07-02Disposed of with directions

Abdul Sathar and Abdul Gaffer v. State of Kerala

Case / Petition Number:Crl.M.C.No.3234 of 2014

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2014-07-02
Court Decision / Holding: If the petitioners surrender before the Judicial First Class Magistrate Court-I, Kasaragod and move for bail in Crime No.356/2013 of the Manjeshwar Police Station, the learned Magistrate is directed to dispose of the bail application on the date of filing itself after hearing the Assistant Public Prosecutor of that court in accordance with law.
Final Disposition: Disposed of with directions

Parties to the Case

Appellants / Petitioners

Abdul Sathar
Abdul Gaffer

Respondents

State of Kerala represented by Sub Inspector of Police, Manjeshwar Police Station, Kasaragode District (Notice to whom may be served on the Public Prosecutor, High Court of Kerala, Ernakulam)

Legal Representation & Advocates

Counsels for Petitioners

• C. S. Manu
• S. K. Premraj

Counsels for Respondents

• Smt. S. Hyma

Case Synopsis & Summary

This Criminal Miscellaneous Case (Crl.M.C. No.3234 of 2014) was filed before the High Court of Kerala by accused Nos. 3 and 4 in Crime No.356/2013 of the Manjeshwar Police Station, Kasaragod. The petitioners sought relief under Section 482 CrPC, asking the Sessions Court, Kasaragod to consider their prospective regular bail application in Crime No.356/2013 on the date of filing, or, failing that, to direct that the bail application (including any interim bail sought with the regular bail) be considered on the filing date itself if the matter was adjourned. They argued that surrender before the Sessions Court would ordinarily result in remand during the pendency of the bail proceedings, causing grave injustice, and requested that the court ensure prompt consideration of bail. They relied on the Supreme Court decision in Sundeep Kumar Bafna v. State of Maharashtra, urging that surrender can take place before any competent court and that the governing court should act as if the accused is in judicial custody. The Public Prosecutor opposed the petition. After hearing both sides, the court expressed that the relief could be disposed of at admission stage, but ultimately rejected a general Section 482 direction. It directed that if the petitioners surrender before the Judicial First Class Magistrate Court-I, Kasaragod, and move for bail, the Magistrate must decide the bail application on the filing date after hearing the AP.P, in accordance with law, and disposed of the petition accordingly.

Provisions of Law Cited

Section 482 of the Code of Criminal ProcedureSections 143, 147, 324, 341, 307 read with Section 149 of the Indian Penal Code

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that, on surrender, their regular bail application in Crime No.356/2013 should be considered on the date of filing itself, or, if adjourned, interim bail should be considered on the same date, to prevent grave injustice arising from continued detention pending bail. They rely on the Supreme Court’s decision in Sundeep Kumar Bafna v. State of Maharashtra to argue that surrender can occur before any competent court and that the court can treat the accused as in judicial custody, thereby avoiding unnecessary interference at the investigation stage. They emphasize that anticipatory bail petitions were dismissed, and that surrender before the Sessions Court would be both appropriate and expedient for timely resolution of bail, without undermining the investigation or the rights of the accused.

Contentions of Respondents

The State, represented by the Public Prosecutor, opposed any 482 CrPC intrusion, maintaining that bail decisions are within the discretion of the Sessions Court and should not be fettered by directive orders from this Court. It was argued that the Supreme Court has stressed that each case must be decided on its own facts and that interference in investigation should be avoided. The State did not dispute the petitioners’ right to surrender but contended that no blanket or general direction under Section 482 was warranted. It urged adherence to ordinary procedure and fair opportunity to the prosecution and the court to dispose of bail applications based on the facts before them.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sundeep Kumar Bafna v. State of Maharashtra	2014 (2) KLT 809 (SC)	Positive	The High Court cited this Supreme Court decision to support the proposition that surrender can take place before any court and that the court can treat the accused as in judicial custody, thereby not requiring a Section 482 direction.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** # **WEDNESDAY, THE 2ND DAY OF JULY 2014/11TH ASHADHA, 1936** ## **Crl.MC.No. 3234 of 2014** ## **---------------------------** **CRIME NO. 356/2013 OF MANJESWAR POLICE STATION , KASARAGOD** **......** ## **PETITIONERS/ACCUSED NOS. 3 & 4:** **--------------------------------------------------------** **1. ABDUL SATHAR, AGED 32 YEARS, S/O.MOHAMMED, RESIDNG AT NADUMOOLE HOUSE, P.O.BERIPADAVU, KASARAGODE-671 322.** **2. ABDUL GAFER, AGED 29 YEARS,** **S/O.MUHAMMED, RESIDING AT 5/664, P.O.BERIPADAVU, KASARAGODE- 671 322.** **BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ** ## **RESPONDENT/COMPLAINANT:** **----------------------------------------------------** **STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, MANJESWAR POLICE STATION, KASARAGODE DISTRICT (NOTICE TO WHOM MAY BE SERVE ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM).** **BY PUBLIC PROSECUTOR SMT. S.HYMA** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02-07-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Kss** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.M.C.No.3234 of 2014 .................................................. Dated this the 2[nd] day of July, 2014. ## **O R D E R** This Criminal Miscellaneous Case is filed by the petitioners, who were arrayed as accused 3 and 4 as claimed by the petitioners in Crime No.356/2013 of Manjeshwar police station, seeking certain directions to be given to the Sessions Court, Kasaragod under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). 2. It is alleged in the petition that the petitioners were arrayed as accused 3 and 4 in Crime No.356/2013 of Manjeshwar police station alleging offences under Sections 143, 147, 324, 307, 324 and 341 read with Section 149 of the Indian Penal Code. The case of the prosecution was that on 30.5.2013 at about 4.30 pm the accused persons formed themselves into an unlawful assembly with deadly weapons like sword and inflicted injuries on the defacto complainant with an intention to commit murder and thereby having committed the above said offences. Though they filed Crl.M.C.No.3234 of 2014 2 anticipatory bail application before the Sessions Court and this Court, they were dismissed. They are innocent of the charges alleged. They wanted to surrender before the Sessions Court, Kasaragod. Invariably if they surrender before the Sessions Court, they will be remanded to custody during the pendency of the bail application that work out great injustice to the petitioners. So the petitioners have no other remedy except to approach this Court seeking the following reliefs: “i. Direct the Hon'ble Court of the Sessions Judge, Kasaragod to consider and pass orders on the petitioners' prospective application for regular bail in Crime No.356 of 2013 of the Manjeshwar Police Station on the date of filing the said application itself or directing the said court to consider and pass orders on the petitioners' application for interim bail filed along with their application for regular bail on the date of filing the application itself, in the event of adjourning the application for regular bail; and ii. Grant such other and further reliefs as this Hon'ble Court deems fit and proper in the circumstances of the case.” ## 3. Considering the nature of relief claimed in the petition, this Court felt that this petition can be disposed of at the Crl.M.C.No.3234 of 2014 3 admission stage itself after hearing the counsel for the petitioners and the learned Public Prosecutor. 4. Counsel for the petitioners submitted that in view of the decision reported in **[Sundeep Kumar Bafna v. State of Maharashtra** (2014 (2) KLT 809(SC)], the petitioners are prepared to surrender and their bail application will have to be considered and disposed of by the Sessions Judge on the same day itself or in case it is adjourned, a direction will have to be given for granting interim bail considering the application for interim bail if any filed as well. 5. The learned Public Prosecutor opposed this petition. 6. It is an admitted fact that the petitioners were arrayed as accused 3 and 4 in Crime No.356/2013 of Manjeshwar police station which was registered on the basis of a statement given by the defacto complainant/injured alleging offences under Sections 143, 147, 148 307, 324 and 341 read with Section 149 of the Indian Penal Code. It is also an admitted fact that the arrest of the petitioners could not be done so far. It is also admitted in the petition itself that anticipatory bail applications filed by the petitioners before the Sessions Court as well as before this Court were dismissed. But 4 Crl.M.C.No.3234 of 2014 they did not surrender so far. Now they have come with this petition under Section 482 of the Code to give a direction to the Sessions Judge, if they surrender, their bail application will have to be considered on the same day itself or in case the Sessions Judge wanted to adjourn the same, the request for interim bail will have to be considered and appropriate orders will have to be passed. It is true in the decision cited above, the Hon'ble Supreme Court has held that it is not necessary that the accused will have to surrender before the Magistrate court itself. The accused can surrender before any court including this Court in such cases he will have to be deemed to be in judicial custody and appropriate orders will have to be passed by that court as though he is in judicial custody. So under the circumstances there is no necessity for this Court to give any permission to the petitioners to surrender before the Sessions Judge and direct the Sessions Judge to pass appropriate orders on bail application etc using power under Section 482 of the Code. Further there is no dispute regarding several principles laid down by the Hon'ble Supreme Court in several decisions relied on by the counsel for the petitioners in his petition. But the Hon'ble Supreme Crl.M.C.No.3234 of 2014 5 Court in several decisions has categorically stated that each case will have to be considered on the basis of the facts before that court and unnecessarily the court should not interfere in the mater of investigation as well. So there is no necessity to issue any direction as claimed in the petition because the petitioners are at liberty to surrender before the Sessions Court in view of the dictum laid down in the decision cited supra and that court can pass appropriate orders, if they moves for bail. 7. When this Court was about to dispose of the case, the counsel for the petitioners submitted that he is limiting his prayer for consideration of the bail application by the Magistrate court, if the petitioners surrender before that court on the date of filing of the application itself. So considering the facts and also the submission made by the counsel for the petitioners, this Court feels that the petition can be disposed of as follows: If the petitioners surrender before the Judicial First Class Magistrate Court-I, Kasaragod and move for bail in Crime No.356/2013 of Manjeshwar police station, then the learned Magistrate is directed to dispose of the bail Crl.M.C.No.3234 of 2014 6 application on the date of filing itself after hearing the Assistant Public Prosecutor of that court in accordance with law. With the above directions and observations, the petition is disposed of. Office is directed to communicate this order to the concerned court immediately. ## **Sd/-** **K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.M.C.No.3234 of 2014 7