Joseph P.A. v. Muthoot Capital Services Ltd and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 6TH DAY OF JUNE 2017/16TH JYAISHTA, 1939** ## **Crl.MC.No. 3869 of 2017 ()** **--------------------------LP. NO.81/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOCHI. ........** **PETITIONER/ACCUSED: -----------------------------------** **JOSEPH P.A, AGED 66 YEARS, S/O.ABRAHAM, PLAVUCHATHIL, KUMILY. P.O, IDUKKI DISTRICT.** **BY ADVS.SRI.G.HARIHARAN, SRI.PRAVEEN.H.** ## **RESPONDENTS/RESPONDENTS & STATE:** **--------------------------------------------------------------** |**1.**|**M/S. MUTHOOT CAPITAL SERVICES. LTD,**| |---|---| ||**MUTHOOT TOWERS, M.G. ROAD, ERNAKULAM-682 035,**| ||**REPRESENTED BY ITS AUTHORISED REPRESENTATIVE,**| ||**T.N. BHUVANENDRAN, MUNDAKKAL HOUSE,**| ||**UDAYAMPEROOR. P.O, ERNAKULAM DISTRICT.**| |**2.**|**STATE OF KERALA,**| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682 031.**| ||**R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.**| **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06-06-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.MC.No. 3869 of 2017** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE I TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 1ST RESPONDENT AGAINST THE PETITIONER BEFORE THE CHIEF JUDICIAL MAGISTRATE COURT, ERNAKULAM.** **RESPONDENT'S ANNEXURES:NIL.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **ALEXANDER THOMAS, J.** ---------------------------------------- ## Crl.M.C.No.3869 of 2017 ----------------------------------------Dated this the 6[th] day of June, 2017 ## _**O R D E R**_ The petitioner is arrayed as accused in L.P.No.81 of 2004 on the file of the Judicial First Class Magistrate Court-I, Kochi, alleging offence punishable under Section 138 of the Negotiable Instruments Act, on the basis of a complaint preferred by the first respondent herein. 2. It is stated that the complaint was originally filed on 8.8.2001 before the Chief Judicial Magistrate's Court, Ernakulam, as per Annexure-I and the case was later made over to the Judicial First Class Magistrate Court-I, Kochi. It is also stated that the petitioner has never received summons in relation to this case at any point of time and therefore, he was disabled from appearing before the court below as he was totally unaware about the pendency of the said criminal proceedings. Later, the said case has been included in the long pending case list of the abovesaid court as L.P.No.81 of 2004 which is now pending. The petitioner has only came to know that the said case is pending and that non bailable warrant is also issued against him. The petitionr intends to contest the matter before the court below and to surrender before the learned Magistrate and make necessary applications for grant of bail, recall of non bailable warrant, etc. The apprehension of the petitioner is that in view of the long pendency of the **Crl.M.C.No.3869/17** : **:2::** matter, the learned Magistrate may not be inclined to consider the Bail Application on merits on the same day on which he surrenders and that he could be remanded to judicial custody. Aggrieved thereby the petitioner has preferred the instant Crl.M.C. seeking this Court’s intervention by invoking the extraordinary inherent powers conferred on this Court as per Section 482 of the Cr.P.C. with the prayer that this Court may direct the learned Magistrate to consider the abovesaid applications on merits on the same day on which he proposed to surrender. 3. The prayers in the present Crl.M.C. are as follows : - _“(i) Direct the Judicial First Class Magistrate Court-I, Kochi, to consider the application for bail filed by the petitioner on the same day of filing and to pass orders thereon on the same day of filing._ - _(ii) Pass such orders or reliefs as this Hon'ble Court deems fit in the interest of justice.”_ 4. Heard Sri.P.Hariharan, learned counsel appearing for the revision petitioner/accused and Sri.Saigi Jacob Palatty learned prosecutor appearing for R2/State. 5. In the nature of the orders proposed to be passed in this Crl.M.C., notice to R1/complainant will stand dispensed with. 6. Sri.P.Hariharan, learned counsel appearing for the petitioner/accused, has relied on the legal principles laid down in the judgment of this Court in _**Oseela Abdul Khaker v. State of Kerala**_ **Crl.M.C.No.3869/17** : **:3::** reported in _**2012 (4) KLT 535**_ , in which this Court 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 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 subsection (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 **Crl.M.C.No.3869/17** : **:4::** ## 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 when the offence imputed is bailable and she is entitled to be released on bail as of right."_ ## 7. 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._ **Crl.M.C.No.3869/17** : **:5::** _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._ _**''**_ 8. On a consideration of the facts and circumstances in this case, it is ordered in the interest of justice that in case the petitioner voluntarily surrenders and personally appears before the learned Magistrate dealing with L.P.No.81 of 2004 and submits necessary applications for grant of bail, recall of non bailable warrant, etc. before the court of the Judicial First Class Magistrate Court-I, Kochi, within a period of two weeks from the date notified for receiving a certified copy of this order, then the learned Magistrate shall consider those applications on the same day itself in accordance with law and in the light of the legal principles laid down by the Apex Court and by this **Crl.M.C.No.3869/17** : **:6::** Court in the aforestated judgments and also taking into account the relevant and crucial fact that the only offence alleged against the petitioner is a bailable offence and pass necessary orders thereon. The petitioner will produce a certified copy of this order before the learned Magistrate at the time he appears before the said court. Further in the interest of justice, it is ordered that until orders are passed by the learned Magistrate as directed herein above, all coercive steps pending against the petitioner including the non bailable warrant issued against him in relation to this case will remain under suspension. It is also made clear that in case the petitioner does not surrender before the learned Magistrate within the aforesaid time limit as directed herein above, then the benefit of this direction will stand automatically vacated without any further orders from this Court. With these observations and directions, the Crl.M.C. stands finally disposed of. ## **ALEXANDER THOMAS JUDGE** csl