Ayisha v. State of Kerala and BRD Securities Pvt. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939** ## **Crl.MC.No. 4232 of 2017 ()** **----------------------------------------AGAINST THE ORDER/JUDGMENT IN LP 5/2015 of C.J.M.PALAKKAD DATED** ## **PETITIONER(S)/ACCUSED:** **---------------------------------------** **AYISHA, AGED 47 YEARS, W/O.LATE HAMSA, KURUPPATH VEEDU, 55TH MILE, KODAKKAD P.O., MANNARKAD TALUK, PALAKKAD DISTRICT.** ## **BY ADV. SRI.P.JAYARAM** **RESPONDENT(S):** **-----------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2. BRD SECURITIES PVT. LTD., SHORANUR ROAD, PALAKKAD-678 001.** **R1 BY SRI.SAIGI JACOB PALETTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **DG** ## **Crl.MC.No. 4232 of 2017 () -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **--------------------------------------** **ANNEXURE A1- TRUE COPY OF THE DEATH CERTIFICATE DATED 24/05/2017 ISSUED FROM PERINTHALMANNA MUNICIPALITY EVIDENCING THE DEATH OF PETITIONER'S HUSBAND, HAMSA. ANNEXURE A2- TRUE COPY OF THE MEDICAL REPORT ISSUED TO PETITIONER'S HUSBAND HAMSA FROM REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM. ANNEXURE A3- TRUE COPY OF THE REFERENCE LETTER ISSUED TO PETITIONER'S HUSBAND HAMSA FROM REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM. ANNEXURE A4- TRUE COPY OF THE MEDICAL REPORT DATED 22/04/2017 ISSUED TO THE PETITIONER'S HUSBAND FROM REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM. ANNEXURE A5- TRUE COPY OF THE ELECTORAL IDENTITY CARD OF THE PETITIONER. ANNEXURE A6- TRUE COPY OF THE AADHAR CARD OF THE PETITIONER. RESPONDENT(S)' EXHIBITS: NIL** **TRUE COPY** **P.A.TO JUDGE** ## **ALEXANDER THOMAS, J.** -----------------------------------------------------------------Crl.M.C.No.4232 of 2017 ---------------------------------------------Dated this the 21[st] day of June, 2017 ## **O R D E R** The prayers in this Crl.M.C are in respect of matters relating to L.P.No.17 of 2014 (arising out of CC.No.491 of 2012) and L.P.No.5 of 2015 (arising out of CC.No.482 of 2012) both on the files of Chief Judicial Magistrate Court, Palakkad. Sri.P.Jayaram appearing for the petitioners would submit that he would file a separate Crl.M.C in respect of the grievance of the petitioner in the matter in L.P.No.5 of 2015 (arising out of CC.No. 482 of 2012) and that this Court may confine the consideration of the prayers only in respect of the matter in L.P.17 of 2014 (arising out of CC.491 of 2012). The said submission made by the learned counsel for the petitioner is recorded. 2. The petitioner is accused for offence punishable under Section 138 of the Negotiable Instruments Act in L.P.No.17 of 2014 (arising out of CC.491 of 2012) on the files of the Chief Judicial Magistrate Court, Palakkad on a complaint filed by the 2[nd] respondent herein. 3. It is pointed out that the petitioner’s husband was Crl.M.C.No.4232/17 2 suffering from cancer for more than five years and therefore, petitioner was fully engaged in treatment, as he has been treated in RCC, Thiruvananthapuram and therefore, the petitioner could not take effective steps to appear before the court below and secure bail. Petitioner’s husband died on 09.05.2017. Only now the petitioner learnt that a non-bailable warrant was issued to her for non-appearance in the above case. Further that as per the religious custom of the petitioner’s community, the petitioner as a widow, has to remain in house for a period of 120 days after the death of the husband. Annexure-A1 is the death certificate which shows that the petitioner's husband had died on 09.05.2017. Annexures-A2 to A4 are the medical reports issued to the petitioner's husband by the RCC, Thiruvananthapuram. The religious injunction that the widow should remain in house for a period of 120 days is observed as a custom and the said period will expire only on 09.09.2017 and that the petitioner is ready and willing to surrender before the trial court immediately after the said period is over and that the petitioner now apprehends the risk of being arrested during the said period. Counsel for the petitioner now seeks directions from this Court to direct the trial court to grant time upto 09.09.17 (till the date Crl.M.C.No.4232/17 3 of completion of the iddat period), so as to enable her to thereafter immediately surrender before the trial court in relation to L.P.No.17 of 2014 and seek bail. It is also stated that CC.No.491 of 2012 has been now included in the long pending case list of the trial court numbered as LP.No.17 of 2014. 4. 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 Crl.M.C.No.4232/17 4 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 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 Crl.M.C.No.4232/17 5 when the offence imputed is bailable and she is entitled to be released on bail as of right." 5. 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 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 Crl.M.C.No.4232/17 6 ## 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. **''** 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. 6. Accordingly, in the facts and circumstances of the case, it is ordered in the interest of justice that in case petitioner appears before the Judicial First Class Magistrate Court dealing with LP No.17 of 2014 arising out of CC.No.491 of 2012 on or before 16.09.17 and makes necessary application for grant of bail, then the learned Magistrate shall consider that application on the same date on which she appears and pass appropriate Crl.M.C.No.4232/17 7 orders thereon on the same day itself in the light of the legal principles laid down by this Court and by the Apex Court in the afore cited judgments and also taking into consideration the fact that the offence alleged against petitioner is only a bailable offence. Until orders are passed by the learned Magistrate as directed herein above, no further coercive steps shall be enforced against the petitioner. It is also made clear that in case petitioner does not appear before the learned Magistrate on or before 16.09.17, the direction given herein above will stand automatically deferred without any further orders from this Court. The petitioner will produce a certified copy of this order before the learned Magistrate along with the above said application at the time of hearing as directed above. 7. The petitioner may file separate petition in respect of her grievances in L.P.No.5 of 2015 (arising out of CC.No.482 of 2012). With these observations and directions this Crl.M.C. stands disposed of. Sd/- **(ALEXANDER THOMAS, JUDGE)** TRUE COPY P.A.TO JUDGE DG