Akshay v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 14TH DAY OF OCTOBER 2019 / 22ND ASWINA, 1941** ## **Crl.MC.No.6966 OF 2019(A)** **CRRP NO. 53/2019 OF SESSIONS COURT,THRISSUR** **CRIME NO.399/2019 OF ALOOR POLICE STATION , Thrissur** ## **PETITIONER/4TH ACCUSED:** **AKSHAY, AGED 20 YEARS S/O.CHANDRAN, THERAMBIL HOUSE, CHERANKALAM DESOM, KALLETTUMKARA VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT.** **BY ADV. SRI.N.L.BITTO** ## **RESPONDENTS/STATE OF KERALA:** **THE STATE OF KERALA,** **REP. BY THE SUB INSPECTOR OF POLICE, ALOOR POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM- 682031.** ## **SRI C S HRITHWICK-PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10-102019, THE COURT ON 14-10-2019 PASSED THE FOLLOWING:** Crl.M.C.No.6966 of 2019 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.M.C.No.6966 of 2019 -------------------------------------------Dated this the 14[th] day of October, 2019 ## **O R D E R** This is an application filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), challenging Annexure-IV order passed by the learned Sessions Judge, Thrissur cancelling the bail granted to the petitioner by the learned Magistrate. 2. The petitioner is the fourth accused in the case registered as Crime No.399/2019 of Aloor police station under Sections 367, 341, 342, 323, 324, 326 and 307 read with 34 I.P.C. 3. The prosecution case is as follows: On the night of 17.07.2019/18.07.2019, the de facto complainant was sleeping in his house. At about midnight, the accused Vava called him on the mobile phone and asked him to come out of the house. The aforesaid accused had called the de facto complainant, through the mobile phone, twice or thrice earlier during that night. When the accused Vava called him at about midnight, the de facto complainant reluctantly got out of his house and went to the road. Along with the Crl.M.C.No.6966 of 2019 3 accused Vava, the accused Stephin and Ratheesh were there inside a car. The accused Ratheesh forcibly got the de facto complainant into the car. They took the de facto complainant to the place “Manattukunnu Chira”. The accused Akshay, Ansal and Afsal were waiting there. The accused Stephin repeatedly hit on the head of the de facto complainant with a stone and the other accused beat and hit him. Thereafter, they dragged him to a nearby place and brutally assaulted him with iron rods, causing him grievous injuries. Thereafter, the accused took him on a motorcycle to Aloor and abandoned him there on the road. 4. Accused 2, 4 and 6 surrendered in the Magistrate's Court concerned on 25.07.2019. Thereafter, they were given to police custody for a period of two days. As per Annexure-II order passed on 14.08.2019, the learned Magistrate granted bail to the aforesaid accused. 5. The State filed revision petition before the learned Sessions Judge as Crl.R.P.No.53/2019 challenging Annexure-II order passed by the learned Magistrate. The learned Sessions Judge found that the learned Magistrate had granted bail to the accused in a case triable by the Court of Session without assigning any special reasons and that the learned Magistrate exceeded her jurisdiction in granting bail to the accused. As per Annexure-IV order, the learned Sessions Judge Crl.M.C.No.6966 of 2019 4 cancelled the bail granted to the aforesaid accused and directed them to surrender before the investigating officer on 09.10.2019. The petitioner, who is the fourth accused in the case, has approached this Court challenging the aforesaid order passed by the learned Sessions Judge. 6. Heard learned counsel for the petitioner and the learned Public Prosecutor. 7. Learned counsel for the petitioner contended that the discretion of the Magistrate in granting bail is not taken away merely because the offence is triable by a Court of Session. It is contended that merely because there is an allegation of committing an offence punishable with death or imprisonment for life, the power of the Magistrate to grant bail is not curtailed in any manner. It is contended that the learned Magistrate has assigned valid reasons for granting bail to the petitioner. It is pointed out that the learned Sessions Judge, in cancelling the bail granted to the petitioner, has proceeded only on the footing that the Magistrate did not have jurisdiction to grant such bail having regard to the nature of offence that was allegedly committed by the petitioner. It is pointed out that the petitioner had voluntarily surrendered before the court and he was in custody for a period of twenty days. It is contended that, at any rate, as the petitioner had not violated any of the conditions of bail granted to him Crl.M.C.No.6966 of 2019 5 by the learned Magistrate, the learned Sessions Judge should not have cancelled the bail. 8. Section 437(1) of the Code provides that, when a person accused of, or suspected of, the commission of any 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, other than the High Court or the Court of Session, he may be released on bail, but such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Section 437(4) of the Code states that an officer or court releasing any person on bail under sub-section (1) shall record in writing reasons or special reasons for doing so. 9. Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence which is exclusively triable by a Court of Session, yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purpose of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code in respect of a person who is, suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negate the existence of reasonable Crl.M.C.No.6966 of 2019 6 ground for believing that such accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case, where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking, if punishment prescribed is for imprisonment for life or death penalty and the offence is exclusively triable by the Court of Session, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437(1) of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent (See **Prahlad Singh v. State : AIR 2001 SC 1444** ). 10. In the instant case, the offence under Section 307 I.P.C is alleged against the petitioner. When hurt is caused to the victim, it is an offence punishable with imprisonment for life. It is an offence triable by a Court of Session. In such circumstances, it has to be found that the learned Magistrate exceeded her jurisdiction in granting bail to the petitioner without entering into a finding that there are reasonable grounds to believe that the petitioner had not committed Crl.M.C.No.6966 of 2019 7 any offence punishable with imprisonment for life. Annexure-IV order passed by the learned Sessions Judge has given emphasis to this illegality committed by the learned Magistrate. 11. There is a distinction between cancellation of bail on account of supervening circumstances and exercise of jurisdiction in nullifying an order granting bail in appeal or revision when the bail order is challenged on the ground that the same is perverse or based on irrelevant considerations or founded on non-consideration of facts which are relevant. ## 12. In **Neeru Yadav v. State of U.P : (2014) 16 SCC 508** , it has been held as follows: _“It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the_ Crl.M.C.No.6966 of 2019 8 _accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court”._ 13. In the instant case, the learned Sessions Judge has rightly found that the learned Magistrate had ignored relevant facts and that she had taken into account matters which are not relevant in granting bail to the petitioner. At the time when bail was granted by the learned Magistrate to the petitioner, the investigation of the case was at the stage of infancy. The de facto complainant, who had sustained grievous injuries, was still in the intensive care unit at that time. The three main accused in the case were yet to be arrested. None of these factors were taken into consideration by the learned Magistrate while granting bail to the petitioner. 14. The learned Magistrate has mentioned in Annexure II order that the investigation had progressed and there was no reason for further detention of the accused persons. As noticed above, the investigation of the case was at the stage of infancy when the learned Magistrate granted bail to the petitioner. 15. In this context, the following observations made by the Apex Court in **Ash Mohammad v. Shiv Raj Singh : (2012) 9 SCC 446** , are very much relevant. Crl.M.C.No.6966 of 2019 9 _“We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. ......... It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The_ Crl.M.C.No.6966 of 2019 10 _prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms”._ 16. There is a feeble contention raised by the petitioner that a revision petition before the learned Sessions Judge was not maintainable against the order of the learned Magistrate granting bail. It is a debatable question whether a revision is maintainable or not against an order granting bail to an accused. However, in this case it is not necessary for this Court to delve deep into that question. Section 439(2) of the Code provides that the High Court or Court of Session may direct that any person who has been released on bail be arrested and commit him to custody. Therefore, even if it is assumed that the application before the learned Sessions Judge was moved under a wrong provision of law, since the learned Sessions Judge has power to cancel the bail granted by the learned Magistrate, the order passed by the learned Sessions Judge cannot be found to be illegal. 17. In the aforesaid circumstances, this petition is liable to be dismissed. ## Consequently, the petition is dismissed. ## Sd/- **R.NARAYANA PISHARADI, JUDGE** jsr Crl.M.C.No.6966 of 2019 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I A TRUE COPY OF THE FIR IN CRIME NO.399 OF 2019 OF ALOOR POLICE STATION DATED 18.07.2019.** **ANNEXURE II A TRUE COPY OF BAIL ORDER IN CMP.7264 OF 2019 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT, CHALAKUDY DATED 14.08.2019.** **ANNEXURE III A TRUE COPY OF CRL.R.P.53 OF 2019 FILED BY THE RESPONDENT BEFORE THE SESSIONS COURT THRISSUR DATED 24.08.2019.** **ANNEXURE IV A TRUE COPY OF ORDER PASSED IN CRL.R.P.53 OF 2019 OF THE SESSIONS COURT THRISSUR DATED 05.10.2019.** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **LSN**