High Court of KeralaSingle JudgeCRL.M.Cs allowed; Annexure-A6 quashed; NBWs set...

CRL.M.C. Nos. 1661/1701/2284/2737 of 2021, In the High Court of Kerala at Ernakulam

Case / Petition Number:CRL.M.C NO. 2284 OF 2021; CRL.M.C NO. 1661 OF 2021; CRL.M.C NO. 1701 OF 2021; CRL.M.C NO. 2737 OF 2021

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Haripal
Judgment Date
2021-09-20
Court Decision / Holding
Annexure-A6 and the NBWs were quashed; the CRL.M.Cs are allowed; petitioners are directed to appear before the committal court and may file fresh bail applications with appropriate conditions.
Final Disposition
CRL.M.Cs allowed; Annexure-A6 quashed; NBWs set aside; petitioners may file fresh bail applications with conditions.

Parties to the Case

Appellants / Petitioners

  • Yousaf
  • Sandeep
  • Rashid
  • Abdul Jaleel

Respondents

  • State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • P. Vijaya Bhanu (Sr.)
  • • Sri. P. M. Rafiq
  • • Sri. Ajeesh K. Sas i
  • • Sri. V. C. Sarath
  • • Sri. M. Revikrishnan
  • • Sri. Vipin Narayan
  • • Smt. Pooja Pankaj
  • • Sruthy N. Bhat
  • • Rajit
  • • Sri C. Dheeraj Rajan
  • • Sri Dheeraj Rajan C
  • • M. R. Sasith

Counsels for Respondents

  • • Public Prosecutor, High Court of Kerala

Case Synopsis & Summary

These are consolidated Criminal Miscellaneous Cases under Sec. 482 Cr.P.C. challenging an order of the Judicial First Class Magistrate, Chavakkad, cancelling the bail of accused No.6 and issuing non‑bailable warrants against several accused in connection with Crime No.21/2020 of Pavaratty Police Station, Thrissur. The events occurred on 18 January 2020 at the residence of the wife of CW1 Muhammed Faizy; nine accused allegedly trespassed, assaulted and caused injuries to the deceased, who died on 24 January 2020. The FIR registered on 19 January 2020 included offences under IPC Sections 143, 147, 148, 452, 341, 323, 324, 326, 506 read with 149, and later Section 302 was added after death. The final report was laid in November 2020 and the Magistrate took cognizance as CP 1/2021, issuing summons to all. The 6th accused appeared and was granted bail; others were absconding. The prosecution moved to cancel bail in February 2021 citing grave nature and potential witness influence; NBWs followed. The petitioners contend the Magistrate acted mechanically and that admission of summons suffices to trigger bail, especially after a charge-sheet, citing conflicting Kerala High Court opinions (Sreekumar, George, Sujatha) and Suresh M.R. The State argues for custodial restraint due to gravity and absconding. The High Court, relying on Aman Preet Singh and Siddarth (SC), holds that the Magistrate should grant bail on summons and that cancellation of bail requires cogent reasons. Consequently, Annexure-A6 is quashed, NBWs set aside, and all CRL.M Cs are allowed, with liberty to file fresh bail applications with conditions.

Provisions of Law Cited

Cr.P.C. 482; Cr.P.C. 204(1)(b); Cr.P.C. 173(8); Cr.P.C. 87; Cr.P.C. 436; Cr.P.C. 170; Cr.P.C. 173; Indian Penal Code sections 143, 147, 148, 452, 341, 323, 324, 326, 506, 149, 302

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argue that once summoned, an accused is not automatically disentitled from bail and that cancellation of bail requires cogent, objective reasons. They relied on Sreekumar v. State of Kerala; George v. State of Kerala; Sujatha v. State of Kerala to urge a general rule of bail on appearance when the offence is triable by the Court. They contend no custodial interrogation is warranted for the 6th accused and that further investigation can be conducted without custodial custody; Annexure-A3 to Annexure-A5 proposals for 173(8) investigation do not justify arrest. They emphasize the delay in finalizing the investigation and argue custodial abuse if NBWs are indiscriminately issued.

Contentions of Respondents

The State contends the incident is grave; nine accused involved; absconding; the delay in investigation; and the necessity to ensure witnesses and public order justify cancellation of bail and NBWs. Citing Suresh M.R.; Furtado; Aman Preet Singh; Siddarth, they argue that receipt of summons does not guarantee bail and that orders cancelling bail can be legitimate when there is real danger of witness tampering or re-offence.

Cited Precedents (7)

Case NameCitationTreatmentExplanation
Sreekumar v. State of Kerala2008 (3) KHC 680Partly Overruled / LimitedHeld bail should be granted on summons in some cases, a line later set aside by Supreme Court guidelines.
George v. State of Kerala and another2009 (1) ILR Ker. 33Partly Overruled / LimitedFollowed Sreekumar in some contexts; later affected by Aman Preet Singh guidelines.
Sujatha v. State of Kerala2015 KHC 520Partly Overruled / LimitedPart of the earlier conflicting view on bail upon summons.
Suresh M.R. and others v. State of Kerala and another2011 (3) KLT 600OverruledHigh Court’s earlier stance on unfettered right to bail post-summons was overridden by Supreme Court guidelines.
Furtado v. C.B.I.1996 (2) KLT 1PositiveCited as supporting the proposition that bail may be considered with regard to the stage of investigation and absence of arrest.
Aman Preet Singh v. C.B.I. through DirectorMANU/SC/0599/2020-21PositiveSC guidelines that mandate reasons for issuing warrants after charge-sheet and emphasize summons-first approach.
Siddarth v. State of Uttar Pradesh and another2021 SCC OnLine SC 615PositiveSC reiteration that not every case requires custodial detention when charge-sheet is filed.

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## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 20[TH] DAY OF SEPTEMBER 2021 / 29TH BHADRA, 1943 CRL.MC NO. 2284 OF 2021** **CRIME NO.21/2020 OF PAVARATTY POLICE STATION, THRISSUR CP 1/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHAVAKKAD, THRISSUR PETITIONER/2ND ACCUSED:** **YOUSAF AGED 60 YEARS S/O. KHADER, MUSLIM VEETTIL CHANDANAPARAMBIL HOUSE, MARATHAYUR P.O., PAVARATTY VILLAGE, CHAVAKKADU TALUK, THRISUR DISTRICT-680507.** **BY ADVS. P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.AJEESH K.SASI SRI.V.C.SARATH SRI.M.REVIKRISHNAN SRI.VIPIN NARAYAN SMT.POOJA PANKAJ SRUTHY N. BHAT** ## **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SR.PP SRI.RENJITH T.R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 01.09.2021, ALONG WITH Crl.MC.1661/2021, 1701/2021 AND CONNECTED CASES, THE COURT ON 20.09.2021 PASSED THE FOLLOWING:** :2: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 20[TH] DAY OF SEPTEMBER 2021 / 29TH BHADRA, 1943** **CRL.MC NO. 1661 OF 2021** **CRIME NO.21/2020 OF PAVARATTY POLICE STATION, THRISSUR** **CP 1/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHAVAKKAD, THRISSUR PETITIONER/6TH ACCUSED:** **SANDEEP, AGED 35 YEARS S/O. ASHOKAN, KONENGATH VEEDU, MECHERIPADY DESOM, VENKITANGU VILLAGE, THRISSUR DISTRICT.** **BY ADVS. RAJIT SRI.C.DHEERAJ RAJAN** ## **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SR.PP SRI.RENJITH T.R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 01.09.2021, ALONG WITH Crl.MC.2284/2021 AND CONNECTED CASES, THE COURT ON 20.09.2021 PASSED THE FOLLOWING:** :3: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 20[TH] DAY OF SEPTEMBER 2021 / 29TH BHADRA, 1943** **CRL.MC NO. 1701 OF 2021** **CRIME NO.21/2020 OF PAVARATTY POLICE STATION, THRISSUR** **CP 1/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHAVAKKAD, THRISSUR PETITIONER/4TH ACCUSED:** **RASHID AGED 31 YEARS** **S/O RASSAK,PADANNAYIL HOUSE,KAKASSERY DESOM,ELAVALLY VILLAGE,THRISSUR DISTRICT.** **BY ADV RAJIT** **ADV.DHEERAJ RAJAN C** ## **RESPONDENT/PETITIONER & STATE:** **STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SR.PP SRI.RENJITH T.R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 01.09.2021, ALONG WITH Crl.MC.2284/2021 AND CONNECTED CASES, THE COURT ON 20.09.2021 PASSED THE FOLLOWING:** Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 :4: ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **MONDAY, THE 20[TH] DAY OF SEPTEMBER 2021 / 29TH BHADRA, 1943** **CRL.MC NO. 2737 OF 2021** **CRIME NO.21/2020 OF PAVARATTY POLICE STATION, THRISSUR** **CP 1/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHAVAKKAD, THRISSUR PETITIONER/3RD ACCUSED:** **ABDUL JALEEL AGED 43 YEARS S/O.MOHAMMED, NAALAKATH PADUVINGAL VEEDU, KAKASSERY** **DESOM, ELAVALLY VEEDU, KAKASSERY DESOM, ELAVALLY VILLAGE, THRISSUR - 680 508.** **BY ADV M.R.SASITH** ## **RESPONDENT/STATE:** **STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SR.PP SRI.RENJITH T.R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR HEARING ON 01.09.2021, ALONG WITH Crl.MC.2284/2021 AND CONNECTED CASES, THE COURT ON 20.09.2021 PASSED THE FOLLOWING:** Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 :5: ## **ORDER** These are petitions filed under Section 482 of the Code of Criminal Procedure by accused Nos. 6, 4, 2 and 3 respectively in C.P. No.1/2021 pending before the Judicial First Class Magistrate, Chavakkad, which was taken on file on the final report laid in crime No.21/2020 of Pavaratty police station. The facts of the case can be briefly stated thus: The alleged incident led to the registration of the crime was taken place at 7.30 p.m. and 22.30 p.m., on 18.01.2020. The place of occurrence is the wife's house of the deceased Muhamed Faizy i.e., house No. XII/50 of Venkitangu Grama panchayat. It is alleged that at 7.30 p.m., on 18.01.2020, accused Nos.1 to 4 committed trespass into the said house by breaking open the door on the southwestern side, and dragged the said Muhamed Faizy out of the house, took him to the front side and the 1[st] accused attacked him with a 'konna stick' and caused him serious injuries. Accused Nos. 2 to 4 also manhandled and caused him injuries. Thereafter, Muhamed Faizy went into the house and remained inside till 22.30 hours. Later, he went out of the house and at earthen road on the northern side of the house, accused Nos. 5 to 9 reached there and a scuffle followed and, in the scuffle, 6[th] and 9[th] accused sustained stab injuries; 6[th] accused :6: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 suffered injury on his hand. Then accused Nos. 5 to 9 dragged him to the courtyard of the said house bearing No. XII/50 and accused Nos. 5, 6 and 8 beat him with dangerous weapons, konna sticks etc; accused Nos. 7 and 9 manhandled him and in the attack he sustained injuries on his head, causing clot of blood and was taken to hospital at the early hours of 19.01.2020. While undergoing treatment in the hospital, he died on 24.01.2020. 2. The crime was registered on 19.01.2020 at 13.35 hours on the strength of the First Information Statement given by Muhamed Faizy alleging offence under Sections 143, 147, 148, 452, 341, 323, 324, 326, 506 read with 149 of the Indian Penal Code. After the death of said Muhamed Faizy, offence under Section 302 of the IPC was also incorporated. 3. Accused Nos.2, 3 ,4, 6 and 9 remained at large and on conclusion of investigation, police laid the charge sheet before the Judicial First Class Magistrate, Chavakkad showing accused them absconding and 7[th] accused in judicial custody. On receipt of the final report the learned Magistrate took cognizance of the offence as C.P.1/2021 and summons were issued to all the accused who were on bail and also to those who Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 :7: were absconding. Pursuant to summons, the 6[th] accused, the petitioner in Crl.M.C.1661/2021 appeared before Court and he was promptly released on bail. Accused Nos. 2 to 4, who were also absconding, when applied through counsel, their absence was condoned. The 6[th] accused, who had appeared, remained on bail. Later, on 19.02.2021, the Investigating Officer filed Annexure-A3 petition before the learned Magistrate seeking to cancel the bail. After narrating the facts of the case, he said that it is a case where the offence is grave in nature, the accused has involved in a heinous crime that he was remaining absconding by challenging the legal system and that he may likely to influence the witnesses by inducement and threat and may abscond during trial; it was also stated that he may also repeat such crimes and granting bail to such a person will send a bad message to the public. On 25.02.2021 itself, the 6[th] respondent gave a reply, opposing the contentions. Thereafter, Annexure-A5 intimation was given to the learned Magistrate stating that even though charge sheet was laid on 23.10.2020, since the prosecution wants to file a supplementary final report after interrogating the 6[th] accused, for the purpose of facilitating his identification by material witnesses and also for collecting blood samples of the accused, further investigation is warranted and thus a :8: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 report was filed under Section 173(8) of the Cr.P.C. 4. After hearing counsel on both sides, taking into account all these facts, by Annexure-A6 order dated 09.03.2021, the learned Magistrate cancelled the bail granted to the 6[th] accused and directed for his arrest and production before court. Crl.M.C. No.1661/2021 is filed for quashing this order, whereas the other Crl.M.Cs are filed for quashing non-bailable warrants issued against them after issuing summons by the Magistrate. 5. I heard learned counsel on both sides, in detail. 6. According to the learned counsel for the petitioners, the learned Magistrate has cancelled the bail of the 6[th] accused, ignoring all cannons of law. In this connection, the learned counsel for the petitioners heavily relied on the decisions reported in **Sreekumar v. State of Kerala** **[2008 (3) KHC 680]** , which is followed in **George v. State of Kerala and another [2009 (1) ILR Ker. 33]** and **Sujatha v. State of Kerala [2015 KHC 520]** . 7. According to the learned counsel for the petitioner in Crl.M.C. No.1661/2021, there is absolutely no basis in cancelling the bail granted to the petitioner. The petitioner had promptly responded to the summons :9: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 issued by the court and appeared and applied for bail which was accepted and he was released on bail in the presence of the Public Prosecutor and till Annexure-A3 application was filed for cancellation of bail, the prosecution never wanted the custody of the petitioner, that once the Magistrate had issued summons under Section 204(1)(b) of the Cr.P.C., it has to be presumed that such a step was taken after due application of mind, exercising discretion conferred on the Magistrate. Once cognizance is taken and bail granted, the Magistrate has no power to cancel the bail. According to the learned counsel, no one has a case that summons was issued by mistake. On the date of filing of application for cancellation of bail, an intention to do further investigation was not contemplated at all. According to the learned counsel, even at the time when final report was laid, the prosecution had no case that custodial interrogation of the petitioner and similarly situated accused was necessary for any purpose, either for the recovery of material objects or for identification purpose. According to him, they are close neighbours, there is no dispute in the identity of the parties and therefore, there is absolutely no basis for the prayer for custodial interrogation of the petitioner. The learned counsel submitted that, for cancelling the bail a new reason has been invented by :10: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 the Investigating Officer and there is absolutely no bonafides in the application. 8. The learned counsel for other petitioners also supported the arguments of the learned counsel for the petitioner in Crl.M.C. No.1661/2021. Even though their case is on a different footing, according to them, after having preferred to issue summons to them and they had engaged counsel and sought adjournment which was promptly allowed by the court, there is no meaning in issuing warrant against them. There is nothing to be recovered from them. Reasons stated for further investigation are not made applicable against them. Thus while supporting the arguments of the learned counsel for the petitioner in Crl.M.C. No.1661/2021, they seek quashment of warrants of arrest issued against them. 9. On the other hand, the learned Senior Public Prosecutor opposed the petitions. According to him, there is absolutely no basis in the arguments raised by the learned counsel for the petitioners. A 40 year old man was beaten to death by the accused persons, nine in number. Later, they went absconding. The fact that they were not available at station itself is a matter for drawing adverse inference against them. In fact, the Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 :11: petitioners are not entitled to get released on bail in such a heinous crime. The learned Public Prosecutor also placed reliance on the decision in **Suresh M.R. and others v. State of Kerala [2011 (3) KLT 600]** and also in **Furtado v. C.B.I. [1996 (2) KLT 1]** . According to him, receipt of summons does not give the accused any indefeasible right for getting bail. 10. Before going into the rival contentions, admitted facts can be stated first. The alleged incident had happened on 18.01.2020 at the residence of the wife of CW1, the informant, Muhamed Faizy. The crime was registered on 19.01.2020 alleging offence under Sections 143, 147, 148, 452, 341, 323, 326, 506 read with 149 of IPC on the strength of the first information statement given by Muhamed Faizy. The alleged incident had happened at 7.30 p.m. and then at 10.30 p.m. on 18.01.2020. After some time, Muhamed Faizy was taken to hospital at the early hours on 19.01.2020. While undergoing treatment he succumbed to the injuries on 24.01.2020. Thereafter offence under Section 302 of IPC was also incorporated. On completion of investigation, charge sheet was laid before the Judicial First Class Magistrate Court, Chavakad on 23.10.2020. It appears that the court had received final report on 13.11.2020. There are nine accused in the charge. Accused Nos.2, 3, 4, 6 and 9 were shown absconding; the 7[th] accused was in judicial custody and others were on bail. The learned Magistrate took :12: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 cognizance of the offence as CP.1/2021 and summons were issued to all accused. Pursuant to the summons the 6[th] accused appeared on 17.02.2021 and he was released on bail on the same day. Accused Nos.2, 3 and 4 applied and the applications were allowed by the court. Thereafter, as noticed earlier, on 19.02.2021 an application was filed by the Investigating Officer seeking to cancel the bail granted to the 6[th] accused. He filed an objection and while the application for cancellation of bail was pending the Investigating Officer moved a petition under Section 173(8) of the Cr.P.C. intimating the court that a further investigation is underway. Then, by order dated 09.03.2021, bail granted to the 6[th] accused was cancelled and non bailable warrants were issued. Warrants were issued against accused 2, 3 and 4 also. That prompted the petitioners to move this Court under Section 482 of the Cr.P.C. 11. Here, the major question involved is once charge sheet is laid, whether the Court should issue warrants of arrest against accused persons in all cases where a warrant trial proceeding is to be followed. Similarly, the question involved in the factual matrix is whether summons were issued against these petitioners by the learned Magistrate after proper exercise of discretion. 12. The decisions relied on by the learned counsel for the petitioners and the learned Senior Public Prosecutor indicate a cleavage of opinion :13: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 between two lines of thought propounded by this Court. In **Sreekumar** 's case, quoted supra, which was followed in **George v. State** and **Sujatha v. State** , this Court took the view that once an accused appeared before Court on summons, notwithstanding the question whether the offence alleged is bailable or non bailable, the accused is to be granted bail. On the other hand, in **Suresh M.R. and others v. State of Kerala and another [2011 (3) KLT 600]** the learned single Judge took a contra view that when an accused appears before the Magistrate on summons in a committal proceedings, that will not give him unfettered right to claim bail. 13. When the counsel on both sides were heard elaborately, this apparent conflict was brought in and this Court had expressed the view that this conflict has to be resolved by referring the question to a Division Bench. But, thereafter, I have come across the decision of the Hon'ble Supreme Court in **Aman Preet Singh v. C.B.I. through Director [MANU/SC/0599/2020-21]** where the Hon'ble Supreme Court has held, referring to the following guidelines issued by the Delhi High Court, that in the given situation warrant of arrest shall be issued after recording reasons: “(i) Whenever officer-in-charge of police station or Investigating Agency like CBI files a charge-sheet without arresting the accused during investigation and does not produce the accused in custody as referred in Section 170, Cr.P.C. the Magistrate or the Court empowered to take cognizance or try the accused shall accept the charge-sheet forthwith and proceed according to the procedure laid down Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 :14: in Section 173, Cr.P.C. and exercise the options available to it as discussed in this judgment. In such a case the Magistrate or Court shall invariably issue a process of summons and not warrant of arrest. (ii) In case the Court or Magistrate exercises the discretion of issuing warrant of arrest at any stage including the stage while taking cognizance of the charge-sheet, he or it shall have to record the reasons in writing as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. (iii) Rejection of an application for exemption from personal appearance on any date of hearing or even at first instance does not amount to nonappearance despite service of summons or absconding or failure to obey summons and the Court in such a case shall not issue warrant of arrest and may either give direction to the accused to appear or issue process of summons. (iv) That the Court shall on appearance of an accused in a bailable offence release him forthwith on his furnishing a personal bond with or without sureties as per the mandatory provisions of Section 436, Cr.P.C. (v) The Court shall on appearance of an accused in nonbailable offence who has neither been arrested by the police/Investigating Agency during investigation nor produced in custody as envisaged in Section 170, Cr.P.C. call upon the accused to move a bail application if the accused does not move it on his own and release him on bail as the circumstance of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail. Reason is simple. If a person has been at large and free for several years and has not been even arrested during investigation, to send him to jail by refusing bail suddenly, merely because charge-sheet has been filed is against the basic principles governing grant or refusal of bail.” Approving the guidelines the Hon'ble Supreme Court held thus: “................. The Magistrate or the Court empowered to take Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 :15: cognizance or try the accused has to accept the charge sheet forthwith and proceed in accordance with the procedure laid down under Section 173, Cr.P.C. It has been rightly observed that in such a case the Magistrate or the Court is required to invariably issue a process of summons and not warrant of arrest. In case he seeks to exercise the discretion of issuing warrants of arrest, he is required to record the reasons as contemplated under Section 87, Cr.P.C. that the accused has either been absconding or shall not obey the summons or has refused to appear despite proof of due service of summons upon him. In fact the observations in Sub-para (iii) above by the High Court are in the nature of caution.” That means the cleavage of opinions expressed by this Court have paled into insignificance. 14. The Hon'ble Supreme Court has also reiterated its earlier view in **Siddarth v. State of Uttar Pradesh and another [2021 SCC OnLine SC 615]** where the observation of the Delhi High Court is that 'it is not essential in every case involving a congnizable and non-bailable that an accused be taken into custody when the charge sheet is filed.' In the light of the authoritative pronouncements by the Hon'ble Supreme Court, there cannot be any doubt that the Magistrate has no option but to grant bail to an accused who has been summoned for the case irrespective of the question whether it was a cognizable or non-bailable offence triable by himself or requires to be committed. Here, I have reasons to think that the learned Magistrate was acting in a mechanical manner, without looking into the question that some of the accused were absconding, the 6[th] accused was granted bail without any :16: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 second thought. Annexure-A5 document produced in Crl.M.C.2737/2021 shows that on 27.02.2021, on the subsequent date of posting, he was absent and represented. The question of cancelling the bail arose only when Annexure-A3 motion was made by the Station House Officer of Pavaratty police station. 15. Having said so, now the legality and correctness of Annexure-A6 Crl.M.C.1661/2021 can be considered. From Annexure-A3 it is evident that cancellation of bail has been sought on superfluous grounds. It is stated that the 6[th] accused had involved in a very heinous crime, he had been absconding by challenging the legal system, he is likely to influence and threaten the witnesses and may again go exile during trial, that he may repeat the offence; granting bail to such a person would send wrong message to the general public. As mentioned earlier, the alleged offence was committed in January 2020 and the final report was laid only in November 2020, after about ten months. Till then such considerations were not weighed with by the Investigating Officer and earnest efforts were not made for arresting the petitioner and other similarly placed accused. Secondly, no specific instance has been cited to say that he had made attempts either to influence witnesses or to threaten them. Investigating Officer does not have a case that he has any criminal antecedents and therefore the statement that there is likelihood Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 :17: of involving himself in such crimes in future does not appear convincing. 16. I have also gone through Annexure-A5 petition filed under Section 173(8) of the Cr.P.C. for conducting a further investigation. There also selfsame reasons were stated for conducting further investigation. It is also added that for the purpose of producing the certified copy of the connected case, the petitioner has to be questioned in detail that he has to be got identified by witnesses and that his blood sample has to be collected. It seems that there was another case registered in the very same police station in respect of the incident in which the petitioner and the 9[th] accused had sustained injuries at the hands of the deceased. In order to get certified copy of such documents presence of the petitioner cannot be insisted. Of course it is within the domain of the Investigating agency to make a further investigation. But the pivotal aspect is for that purpose, bail granted to the 6[th] accused alone requires to be cancelled and all other accused who were absconding have to be taken into custody. Similarly, at this stage it does not seem that custodial interrogation of the petitioner is warranted. He can be got identified by other witnesses even without taking into custody, on insisting his presence by the Investigating Officer on such dates fixed by him. Similarly, blood sample also can be collected by the Investigating Officer, if the presence of the petitioner before him is ensured by the learned Magistrate. :18: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 17. In this connection, Section 204(1)(b) of the Cr.P.C. has to be highlighted. Of course, after taking cognizance of offence, it was open to the Magistrate to issue warrant since it is a murder case and the petitioners were absconding. But the Magistrate had chosen to issue only summons to the petitioners. As rightly pointed out by the learned counsel for the petitioners, in the absence of overwhelming reasons, it has to be presumed that summons were issued after due exercise of discretion available to the Magistrate. After choosing to issue summons only, convincing and valid reasons are not made out to take a 'U' turn merely on the asking of the Investigating Officer. 18. Even though the petitioners in other Crl.M.Cs were also absconding, no reason is stated for their custodial interrogation. They are also similarly placed with that of the 6[th] accused. On the showing of the petitioners, on the first date when they were asked to appear on summons, they applied and that application was readily allowed and the case was adjourned and only thereafter the Magistrate had directed to issue warrant against them. Minutes of the Court dtd. 27.02.2021 stands testimony to the contention of the petitioners that the learned Magistrate was acting mechanically. After condoning their absence on 17.02.2021, on 27.02.2021 the Magistrate suddenly took a contra view; this time NBWs were issued against them on the mere consideration that absconding charge was filed :19: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 against them. Such a course of action cannot be approved in right earnest. 19. After considering all these aspects, I am of the definite view that the learned Magistrate went wrong in passing Annexure-A6 order in Crl.M.C.1661/2021 which is liable to be interfered with. Therefore, Annexure-A6 is quashed. Similarly, Non bailable warrants issued against the other petitioners also are set aside. On these considerations, all the Crl.M.Cs are allowed. The petitioners shall appear before the committal court and are at liberty to file fresh applications for bail. It goes without saying that while granting bail, the learned Magistrate is at liberty to impose appropriate conditions. **==> picture [25 x 11] intentionally omitted <==** **K.HARIPAL JUDGE** okb/dcs/17.9.21 //True copy// P.S. to Judge :20: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 ## **APPENDIX OF CRL.MC 1661/2021** |PETITIONER ANNEXURE|| |---|---| |ANNEXURE A1|THE TRUE COPY OF THE FIR IN CRIME 21/2020 OF| ||PAVARATTY POLICE STATION.| |ANNEXURE A2|THE TRUE COPY OF THE FINAL REPORT PERTAINING| ||TO CRIME 21/2020 OF PAVARATTY POLICE STATION.| |ANNEXURE A3|THE TRUE COPY OF M.P.1704/2021 IN C.P. 01/2021| ||DATED 9.3.2021 ON THE FILES OF JUDICIAL FIRST| ||CLASS MAGISTRATE COURT, CHAVAKKAD SUBMITTED BY| ||THE PROSECUTION SEEKING CANCELLATION OF BAIL| ||GRANTED TO THE PETITIONER.| |ANNEXURE A4|THE TRUE COPY OF THE OBJECTION DATED 25.2.2021| ||FILED BY THE PETITIONER.| |ANNEXURE A5|THE TRUE COPY OF THE APPLICATION FILED BY THE| ||PROSECUTION U/S 173(8) OF THE CODE DATED| ||2.3.2021.| |ANNEXURE A6|THE TRUE COPY OF THE ORDER DATED 9.3.2021 IN| ||M.P.1704/2021 IN C.P.01/2021 ON THE FILES OF| ||JUDICIAL FIRST-CLASS MAGISTRATE COURT,| ||CHAVAKKAD.| Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 :21: ## **APPENDIX OF CRL.MC 1701/2021** |PETITIONER ANNEXURE|| |---|---| |ANNEXURE A1|TRUE COPY OF THE FIR IN CRIME NO.21/2020 OF| ||PAVARATTY POLICE STATION.| |ANNEXURE A2|THE TRUE COPY OF THE FINAL REPORT PERTAINING| ||TO CRIME NO.21/2020 OF PAVARATTY POLICE| ||STATION.| |ANNEXURE A3|THE TRUE COPY OF THE SUMMONS ISSUED BY THE| ||LEARNED MAGISTRATE IN C.P.01/2021| |ANNEXURE A4|THE TRUE COPY OF THE E-COURT PROCEEDINGS DATED| ||17.02.2021 IN C.P.01/2021| |ANNEXURE A5|THE TRUE COPY OF THE E-COURT PROCEEDINGS DATED| ||27.02.2021 IN C.P.01/2021.| :22: Crl.M.Cs.1661, 1701, 2284 & 2737 of 2021 ## **APPENDIX OF CRL.MC 2737/2021** |PETITIONER ANNEXURE|| |---|---| |Annexure A1|THE TRUE COPY OF FIR IN CRIME NO.21/2020 OF| ||PAVARATTY POLICE STATION, THRISSUR.| |Annexure A2|THE TRUE COPY OF THE FINAL REPORT IN CRIME| ||NO.21/2020 OF PAVARATTY POLICE STATION.| |Annexure A3|THE TRUE COPY OF THE SUMMONS ISSUED BY THE| ||LEARNED MAGISTRATE IN CP 01/2021.| |Annexure A4|THE TRUE COPY OF THE E-CURT PROCEEDINGS DATED| ||17/02/2021 IN CP 01/2021.| |Annexure A5|THE TRUE COPY OF E-COURTS PROCEEDINGS DATED| ||27/02/2021 IN CP 01/2021.| |Annexure A6|THE TRUE COPY OF THE CRL MC 1701/2021 BEFORE| ||THIS HON'BLE COURT ON 19/03/2021.| |Annexure A7|TRUE COPY OF THE ORDER IN CRL.M.APPL NO.1/2021| ||IN CRL.MC.NO.1701/2021 DATED 09/04/2021.|