Abdullakutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 7TH DAY OF JULY 2017/16TH ASHADHA, 1939** **Crl.MC.No. 4602 of 2017 () ---------------------------** **C.M.P.NO.1390/2014 IN S.T.NO.109/2014 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, TIRUR.** **......** **PETITIONER: -----------** **ABDULLAKUTTY, AGED 45 YEARS, S/O.KUNHI HYDRU HAJI, KAIPPALLY HOUSE, KOLAKKAD P.O, KUTTIPPURAM, MALAPPURAM DISTRICT, PIN - 679 571.** **BY ADV. SRI.TOM K.THOMAS** **RESPONDENT: -----------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07-07-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** **Crl.MC.No. 4602 of 2017 () ---------------------------** ## **APPENDIX** ## **PETITIONERS' ANNEXURES:** **ANNEXURE A : TRUE COPY OF THE COMPLAINT. RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.M.C.No.4602 of 2017 ----------------------------------------Dated this the 7[th] day of July, 2017 ## _**O R D E R**_ The petitioner is accused in L.P.No.5 of 2017 (arising out of S.T.No.109 of 2015) on the file of the Judicial First Class Magistrate Court, Tirur, for the offence punishable under Section 138 of the Negotiable Instruments Act. 2. It is stated that due to reasons beyond the control of the petitioner, he could not appear before the court during the previous postings after receipt of the summons. Now the learned Magistrate has transferred the case to the long pending cases category and the matter has been now renumbered as L.P.No.5 of 2017. It is also pointed out that non bailable warrant is now pending against the petitioner and that the petitioner is ready to appear before the Magistrate and submit necessary applications for grant of bail and for recall of non bailable warrant. But, the petitioner apprehends that he may be remanded to judicial custody. 3. Accordingly, the following prayers are made in this Crl.Miscellaneous Case. :- Crl.M.C.No.4602/17 : **:2::** _“In the above circumstances, it is most humbly prayed that this Hon'ble Court may be pleased to direct the Judicial First Class Magistrate Court, Tirur, to consider the Bail Application that may be filed by the petitioner in L.P.No.5 of 2017 on the date of application itself and grant bail to the petitioner.”_ 4. Heard Sri.Tom.K.Thomas, learned counsel appearing for the petitioner/accused and Sri.Jestin Mathew, learned prosecutor appearing for the respondent/State. 5. 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 non bailable warrant is pending against such person and that steps under Sections 82 and 83 of the Cr.P.C. are also taken against such person. Answering this issue, this Court has held that when the accused has surrendered before the Magistrate in a case relating to bailable offence, it is not proper to pass a drastic order to incarcerate such an accused and 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 evidently has not taken note that where the offence is bailable and the accused, if he offers to give bail, has to be released pending his trial and there is no Crl.M.C.No.4602/17 : **:3::** 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 Section 439 of the Cr.P.C. The fact that the Magistrate has issued non bailable warrant against such accused and proceeded with coercive steps under Sections 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 paragraph 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."_ 6. 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**_ Crl.M.C.No.4602/17 : **:4::** ## _**446**_ , wherein it has been held in paragraph 9 thereof as follows: _**“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._ _**''**_ Crl.M.C.No.4602/17 : **:5::** The offence alleged against the petitioner is one under Section 138 of the Negotiable Instruments Act, which is bailable. Therefore, going by the provisions contained in Section 436 of the Cr.P.C., as well as the legal principles laid down by this Court and by the Apex Court in the aforequoted judgments, the accused is entitled to be released on bail, and the fact that non bailable warrant was issued against the accused or other coercive steps were initiated against the accused, etc. are no ground to refuse bail. 7. Taking into account the totality of the facts and circumstances of this case, it is ordered in the interest of justice that in case the petitioner voluntarily surrenders and personally appears before the Judicial First Class Magistrate Court, Tirur, dealing with L.P.No.5 of 2017 (arising out of S.T.No.109 of 2015) within a period of two weeks from the date notified for receiving the certified copy of this order and submits necessary applications for grant of bail, recall of non bailable warrant, etc., 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 after taking into consideration the legal principles laid down by the Apex Court and this Court in the aforestated judgments and also by taking into account the fact that the offence alleged against the petitioner is only a bailable Crl.M.C.No.4602/17 : **:6::** offence. Until orders are passed by the learned Magistrate as directed herein above, all further coercive steps including the non bailable warrant issued against the petitioner in relation to this case will stand deferred. However, it is made clear that in case the petitioner does not appear before the learned Magistrate within the above time limit, then the benefit of this direction will stand automatically vacated without any further orders from this Court. The petitioner may produce a certified copy of this order before the learned Magistrate along with the abovesaid applications. Accordingly, the Criminal Miscellaneous Case stands finally disposed of. **ALEXANDER THOMAS JUDGE** csl