Bitty Joseph v. State of Kerala and Selfridges Pvt. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 20TH DAY OF NOVEMBER 2017/29TH KARTHIKA, 1939** **Crl.MC.No. 8058 of 2017 () --------------------------ST 101/2017 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THRISSUR.** **.....** **PETITIONER/ACCUSED:** **-------------------** **BITTY JOSEPH, AGED 52 YEARS, S/O.THE LATE JOSEPH GEORGE, NERIAMPARAMBIL HOUSE, THURUTHY.P.O., CHANGANASSERY, KOTTAYAM DISTRICT, PIN - 686 535.** **BY ADVS.SRI.C.S.MANU SRI.S.K.PREMRAJ** ## **RESPONDENTS/STATE & THE COMPLAINANT:** **------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682 031. 2. STATION HOUSE OFFICER, CHANGANASSERY POLICE STATION, KOTTAYAM DISTRICT, PIN - 686 101. (NOTICE TO WHOM MAY BE SERVED ON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682 031) 3. SELFRIDGES PVT.LTD., KURUPPAM ROAD, THRISSUR, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER K.K.KISHORE KUMAR, S/O.KESAVAN, KADAVIL HOUSE, PULLAZHI, THRISSUR, PIN - 680 012.** **R1 & R2 BY PUBLIC PROSECUTOR SRI.JESTIN MATHEW** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## ALEXANDER THOMAS, J. ----------------------------Crl.M.C.No.8058 Of 2017 --------------------------------- Dated this the 20th day of November, 2017. ## O R D E R The petitioner herein is the accused for offence punishable under Sec.138 of the Negotiable Instruments Act in S.T.No.101/2017 on the file of the Additional Chief Judicial Magistrate Court, Thrissur, instituted on the basis of a complaint filed by the 3 rd respondent herein. The dishonoured cheque involved in this case is for Rs.5 lakhs. It is stated that initially the case was filed before the Additional Chief Judicial Magistrate Court, Thrissur, as C.C.No.849/2011 and the accused was then appeared and enlarged on bail and the case was then transferred to Judicial First Class magistrate Court, Changanassery, and there also the petitioner appeared and enlarged on bail. Later, the case was again transferred back to the Additional Chief Judicial Magistrate Court, Thrissur, where it was re-numbered as S.T.No.101/2017. That the petitioner did not receive summons from the court. The case was posted before the Additional Chief Judicial Magistrate Court, Thrissur, on 22.7.2017. As there was no representation, the learned Magistrate ::2:: Crl.M.C.No.8058 Of 2017 has ordered issuance of non bailable warrant against the petitioner and posted the case on 19.8.2017. On 19.8.2017 also, the learned Magistrate ordered issuance of non bailable warrant against the petitioner and posted the case to 11.9.2017, on which day there was no sitting and the case was posted to 7.10.2017 and on that day also, there was no sitting and the case was posted to 20.10.2017, on which day the learned Magistrate has ordered to take steps against the petitioner under Secs.82 & 83 of the Cr.P.C and the case stands posted to 28.11.2017. Accordingly, the petitioner was not aware of the posting dates of the case before the Additional Chief Judicial Magistrate's Court, Thrissur, and that he was not served with any summons after the transfer back of the case from the court at Changanassery and that the petitioner is willing to surrender and apply for bail, but that it is apprehended that the learned Magistrate will remand him to judicial custody and bail application will be considered only after a day, as per the practice followed by that Magistrate Court, etc., it is alleged. That non bailable warrant has already reached the Changanassery Police Station. It is in the light of these aspects, that the petitioner has instituted the instant Criminal Miscellaneous Case, with the following prayer: ::3:: Crl.M.C.No.8058 Of 2017 “............... to recall the Non Bailable Warrant issued to the petitioner in S.T.No.101 of 2017 on the files of the Additional Chief Judicial Magistrate's Court, Thrissur and direct the said court to release the petitioner on bail on his appearance before the court.” 2. Heard Sri.C.S.Manu, learned counsel appearing for the petitioner-accused and Sri.Jestin Mathew, learned Prosecutor appearing for R-1 & R-2. In the nature of the order proposed to be passed in this petition, notice to R-3 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 ::4:: Crl.M.C.No.8058 Of 2017 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 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 1st 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 ::5:: Crl.M.C.No.8058 Of 2017 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." 4. 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 para 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 ::6:: Crl.M.C.No.8058 Of 2017 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.' 5. Accordingly, it is ordered in the interest of justice that in case the petitioner voluntary surrenders and appears before the Additional Chief Judicial Magistrate, Thrissur, who is dealing with S.T.No.101/2017, within a period of 2 weeks from the date notified for receiving the certified copy of this order and makes necessary applications for grant of bail and for recall of non-bailable warrant, with advance notice of such applications to the prosecutor concerned attached to the jurisdictional Magistrate court concerned etc., then the learned Magistrate shall consider those applications on the same day itself and pass necessary orders thereon in accordance with law on the same day in the light of the legal principles laid down in the aforecited judgments of this Court and that of the Apex Court as referred to hereinabove, taking into account the aspect that the offence alleged against the petitioner is a bailable offence, etc. Until orders are passed by the learned Magistrate as directed hereinabove, all further coercive steps pending against the petitioner including issuance of non bailable warrant in relation to this case will remain under suspension. ::7:: Crl.M.C.No.8058 Of 2017 However, it is made clear that if the petitioner does not surrender before the Magistrate within the time limit fixed by this Court as indicated above, then the benefits of this direction given in this order will stand automatically vacated without any further orders from this Court. The petitioner shall produce a certified copy of this order before the trial court for necessary compliance. The learned Prosecutor will intimate the competent police officer about these directions. With these observations and directions, the Crl.M.C stands finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True copy // P.A to Judge.