Hariharan C v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939** ## **Crl.MC.No. 3509 of 2017** **-----------------------CC 1593/2015 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II,THRISSUR** **-----------** ## **PETITIONER/ACCUSED:** **------------------** **HARIHARAN C, S/O.K.GOPINADHAN NAIR, KALLIVALAPPIL HOUSE, KUMARAPPUNAL P.O., VALAVOOR VILLAGE, NOW RESIDING AT CHEMBATH HOUSE, SIVA TEMPLE ROAD, VIYYOOR.** **BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE** **RESPONDENT/STATE:** **-----------------** **STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **BY PUBLIC PROSECUTOR SRI SAIGI JACOB PALETTY** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-05-2017,ALONG WITH CRMC 3532/2017,CRMC 3533/2017 THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** ## **ALEXANDER THOMAS, J.** ## **--------------------------------------** ## **Crl.M.C.Nos.3509,3532 & 3533 of 2017** ## **-----------------------------------------** Dated this the 24th day of May, 2017 ## **ORDER** The petitioner in Crl.M.C.No.3509 of 2017 is the accused in C.C. No.1593/2015 registered for offences punishable under Section 138 of the Negotiable Instruments Act on the files of the Judicial First Class Magistrate Court -II, Thrissur. It is averred that the petitioner has not received summons in the matter and it is now learned that non bailable warrant has been issued and petitioner seeks appropriate directions from this Court so as to direct the jurisdictional Magistrate concerned to consider his bail application on the same day on which he surrenders before the court below and makes application for grant of bail and for recall of the nonbailable warrant etc. 2. The petitioner in Crl.M.C.No.3532 of 2017 is an accused for offences punishable under Section 138 of the Negotiable Instruments Act in a matter which has now been included in the long pending case list as L.P.No.131/2006 on the ## Crl.M.C.Nos.3509,3532 & 3533 of 2017 2 files of Judicial First Class Magistrate Court-I, Pathanamthitta issued on the basis of a complaint filed by the 3[nd] respondent therein. Here it is also averred that the petitioner could not appear before the court below due to non receipt of the summons and that it has now been learned that non bailable warrant has been issued by the court below against the petitioner in relation to this case. 3. The petitioner in Crl.M.C.No.3533 of 2017 is an accused for offences punishable under Section 138 of the Negotiable Instruments Act in C.C.No.807/2016 on the file of the Judicial First Class Magistrate Court -Vatakara issued on the basis of a complaint filed by the 2[nd] respondent therein. In this case also it is averred that due to non receipt of the summons the petitioner could not appear before the court below and non bailable warrant has been issued against him. 4. In all these three Criminal Miscellaneous cases, the main prayer of the petitioners are for directions from this Court to ensure that the jurisdictional Magistrate concerned dealing with the respective matters would consider the bail applications and application for recall of warrant on the same day they proposed to surrender before the court below concerned. Crl.M.C.Nos.3509,3532 & 3533 of 2017 3 5. Heard Sri.S.Rajeev, learned counsel appearing for the petitioner in Crl.M.C.No.3509 of 2017, Sri.M.P.Krishnan Nair, learned counsel appearing for the petitioner in Crl.M.C.No.3532 of 2017 and Sri.V.T.K.Mohanan, learned counsel appearing for the petitioner in Crl.M.C.No.3533 of 2017 and Sri.Saigi Jacob Paletty, learned Public Prosecutor appearing for the respondent, State Authorities in these three cases. 6. Having regard to the nature of orders proposed to be passed in these petitions, notice to the respondents in these matters will stand dispensed with. 7. 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 against 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 ## Crl.M.C.Nos.3509,3532 & 3533 of 2017 4 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 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 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._ ## Crl.M.C.Nos.3509,3532 & 3533 of 2017 5 _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 1[st] 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._ ” 8. 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 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_ ## Crl.M.C.Nos.3509,3532 & 3533 of 2017 6 ## _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._ ## 9. Having regard to the facts and circumstances of Crl.M.C.Nos.3509,3532 & 3533 of 2017 7 these cases, it is ordered in the interest of justice that in case the petitioners in these three Criminal Miscellaneous cases voluntarily surrender and personally appear before the jurisdictional Magistrate court concerned in these matters and submit necessary application for grant of bail and for recall of warrant etc. within a period of two weeks from the date of receipt of a certified copy of this order, then the learned Magistrate shall consider those applications on the same day itself and pass necessary orders in the light of the legal principles laid down by this Court and Apex Court as referred hereinabove and also after taking into consideration the fact that the offence alleged against the petitioners is only bailable offence. 10. Until orders are passed by the learned Magistrate in these three cases all further coercive steps pending against the petitioners including the non bailable warrant issued against them shall be kept in abeyance. However it is made clear that in case any of the petitioners do not voluntarily surrender before the jurisdictional magistrate court concerned within the above said time limit as referred herein above the directions issued hereinabove shall stand automatically vacated without any further Crl.M.C.Nos.3509,3532 & 3533 of 2017 8 orders. With these observations and directions, these three Criminal M.Cs stand finally disposed of. Sd/- **ALEXANDER THOMAS JUDGE** //True Copy\\ P.A to Judge IAP