Abdulla Kallar Kuzhiyil v. State of Kerala and Abdul Gafoor Kainadan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 14TH DAY OF JUNE 2017/24TH JYAISHTA, 1939** **Crl.MC.No. 4062 of 2017 () --------------------------S.T. 651/2016 OF J.M.F.C.-II,PERINTHALMANNA** **-----** **PETITIONER(S)/ACCUSED:** **---------------------** **ABDULLA KALLAR KUZHIYIL, AGED 40, S/O.ABDUL KADER, KALLARKUZHIYIL HOUSE, VAZHENGADA P.O., PERINTHALMANNA TALUK.** **BY ADV. SRI.K.MUHAMMED SALAHUDHEEN** ## **RESPONDENT(S)/STATE & COMPLAINANT:** **----------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2. ABDUL GAFOOR KAINADAN, AGED 45, S/O.MOHAMMED, KAINADAN HOUSE, P.O., NADUVATH, NILAMBOOR TALUK, MALAPPURAM DISTRICT.** **R1 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **SKG** **Crl.MC.No. 4062 of 2017 () ---------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES ------------------------** **ANNEXURE A1 TRUE COPY OF THE COMPLAINT FILED BY THE 2ND RESPONDENTS UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT DATED 30-5-2015.** **RESPONDENT(S)' ANNEXURES -----------------------NIL /TRUE COPY/ P.S. TO JUDGE** **SKG** ALEXANDER THOMAS, J. ================== Crl.M.C.No. 4062 of 2017 ================== Dated this the 14[th] day of June, 2017 O R D E R The petitioner is accused for offence under Sec.138 of the Negotiable Instruments Act in S.T.No. 651/2016 on the file of the Judicial First Class Magistrate's Court-II, Perinthalmanna, instituted on the basis of the complaint filed by the 2[nd] respondent herein. It is stated that the case was initially filed before the Judicial First Class Magistrate's Court-I, Perinthalmanna and subsequently, for want of jurisdiction it has been transferred to the Judicial First Class Magistrate's Court-II, Perinthalmanna. That the petitioner is away at Gundalpet, Karnataka for his livelihood as he has to maintain and look after a small farm there and therefore he could not receive the summons in his address at Kerala. That it is only now that it is learnt that the learned Magistrate has issued nonbailable warrant against the petitioner in this case and that the petitioner wants to surrender before the learned Magistrate and to apply for grant of bail and recall of NBW, etc. That he apprehends that due to the pendency of the matter, the learned Magistrate may adjourn the bail application and it may consequently result in his remand, etc. It is in the above circumstances that the petitioner has preferred the aforecaptioned Crl.M.C. with the following prayers: Crl.M.C.4062/17 - : 2 :- - “(i) issue a direction to the Judicial First Class Magistrate Court-II, Perinthalmanna to recall the warrant issued against the petitioner in S.T.No. 651/2016. - (ii) issue a direction to the Judicial First Class Magistrate Court-II, Perinthalmanna to consider the bail application of the Petitioner on the date of his surrender itself and to enlarge him on bail in connection with S.T.No.651/2016. 2. Heard Sri.Mohammed Salahudhin, learned counsel appearing for the petitioner and Sri.Justin Mathew, learned Prosecutor appearing for R-1 State. In the nature of the order proposed to be passed in this petition, notice to R-2 will stand dispensed with. 3. This Court in the judgment in Oseela Abdul Khaker v. State of Kerala reported in 2012 (4) KLT 535 has considered the issue as to whether the magistrate is correct in remanding an accused, who has offered to give bail for the reason that NBW is pending against such person and that steps under Secs.82 and 83 of the Cr.P.C. are also taken such person. Answering this issue, this Court has held that when the accused has surrendered before the magistrate in a bailable offence, in a case relating to bailable offence, it is not proper to pass a drastic order to incarcerate such an accused and that the fact that non bailable warrant has been issued against the accused, in such a case involving bailable offence, then whatever be the justification of such an order, that by itself will not be a ground to incarcerate the accused. This Court held in that case that the learned Magistrate had in that case evidently has not taken note that where the offence is bailable and the accused, if he offers to Crl.M.C.4062/17 - : 3 :- give bail, has to be released pending his trial and there is no question of Police officer or court exercising any discretion in granting bail and only choice is of demanding security with surety, etc. and that the only exception that can be made against an accused proceeded of bailable offence would be in a situation covered by sub section (2) of Sec.439 of the Cr.P.C. The fact that the magistrate has issued NBW against such a accused and proceeded with coercive steps under Secs.82 and 83 of the Cr.P.C. is no ground to refuse bail when the offence is bailable and that the accused is entitled to be released on bail as of right. It will be profitable to refer to para 9 of the said decision, which reads as follows: "9. When the 1[st] petitioner surrendered before the Magistrate I fail to understand why a drastic order to incarcerate her was called for. The fact that a non - bailable warrant has been issued against her in the case whatever be the justification for such an order by itself is not at all a ground to incarcerate her. The offence imputed against her under S.12(1)(b) of the Act contemplates punishment of imprisonment for a term which may extend to two years or with fine which may extend to Rs.5,000/- or with both. As the offence falls under Clause II of the Ist Schedule to the Code with punishment for less than three years, it is bailable. The learned Magistrate evidently has not taken note that where the offence is bailable the accused if he offers to give bail has to be released pending his trial, and there is no question of the police officer or Court exercising any discretion in granting bail. Only choice is of demanding security with surety. An exception thereto can be made against an accused proceeded of bailable offence only in a situation covered by sub-section (2) of S.439 of the Code. The Magistrate has issued a non - bailable warrant against such accused and proceeded with coercive steps under S.82 and S.83 of the Code against such accused, is no ground to refuse bail when the offence imputed is bailable and she is entitled to be released on bail as of right." In this regard, it is also relevant to note the judgment of the Apex Court in the case Rasiklal v. Kishore, reported in (2009) 4 SCC 446, wherein it has been held para 9 thereof as follows: Crl.M.C.4062/17 - : 4 :- '9. As is evident, the appellant is being tried for alleged commission of offences punishable under Sections 499 and 500 of the Penal Code. Admittedly, both the offences are bailable. The grant of bail to a person accused of a bailable offence is governed by the provisions of Section 436 of the Code of Criminal Procedure, 1973. The said section reads as under: _“436. In what cases bail to be taken.—(1) When any person other than a person accused of a non-bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail:_ _Provided that such officer or court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided._ _Explanation.—Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the court to presume that he is an indigent person for the purposes of this proviso:_ _Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of Section 116 or Section 446-A._ _(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bound by such bond to pay the penalty thereof under Section 446.”_ There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the section instead of taking bail from him.' 4. Accordingly, it is ordered in the interest of justice and after taking into account the totality of the facts and circumstances disclosed in this case that if the petitioner voluntarily surrenders and personally appears before the Judicial First Class Magistrate's Court-II, Perinthalmanna, which is dealing with S.T.No.651/2016 and submits Crl.M.C.4062/17 - : 5 :- necessary applications of grant of bail, recall of non-bailable warrant, etc. within 2 weeks from the date notified for receiving the certified copy of this order, then the learned Magistrate shall consider those applications on the same day and pass necessary orders thereon, on the same day itself, in accordance with law and in the light of the legal principles laid down by this Court and by the Apex Court referred to hereinabove and also taking into account the crucial fact that the offence alleged against the petitioner is only a bailable one. The petitioner shall also produce a certified copy of this order before the learned Magistrate while making the abovesaid applications. The learned Magistrate shall pass necessary orders on the abovesaid applications as directed above. Until orders are thus passed by the learned Magistrate as directed above, all coercive steps that may be taken against the petitioner including the non-bailable warrant issued against the petitioner will stand under suspension. It is, however, made clear that in case the petitioner does not voluntarily surrender before the learned Magistrate within the abovesaid time limit stipulated herein above, then the benefit of this order will stand automatically vacated within any further orders from this Court. With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of. Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.M.C.4062/17 - : 6 :-