Muhammed Abdul Noor v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 19[TH] DAY OF AUGUST 2022 / 28TH SRAVANA, 1944 CRL.MC NO. 4820 OF 2022** **AGAINST THE ORDER/JUDGMENTCC 2115/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR** ## **PETITIONER/ACCUSED:** MUHAMMED ABDUL NOOR, S/O ABDULLA MUSLYAR AGED 51 YEARS KABALA HOUSE, KUTTIPURAM. P.O., THEKKEANGADI, MALAPPURAM, PIN - 679571 BY ADVS. K.K.DHEERENDRAKRISHNAN N.P.ASHA ## **RESPONDENTS/STATE/VICTIM:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 BY ADV PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.08.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C No. 4820 of 2022 2 ## **O R D E R** The petitioner is the accused in Crime No.960/2013 of Kuttipuram Police Station which is now pending as C.C.No.2115/2016 before the Judicial First Class Magistrate CourtI, Tirur. The petitioner has approached this Court with this Crl.M.C being aggrieved by Condition No.2 imposed in Annexure III order of bail granted to him. 2. The aforesaid crime was registered against the petitioner for the offences punishable under Section 420 of Indian Penal Code and under Section 45(5) read with Section 58(E) of Reserve Bank of India Act and also under Section 3,7 read with Section 17 of Money Lenders Act. 3. During the crime stage itself, the petitioner was granted anticipatory bail and upon satisfying the conditions imposed by the Sessions Court as per Annexure I, he was released on bail. Later, the Police submitted Annexure II final report and cognizance thereon was taken by the Judicial First Class Magistrate Court-I, Tirur as C.C.No.2115/2016. It is the case of the petitioner that, ## Crl.M.C No. 4820 of 2022 3 after taking cognizance, the summons was not served upon the petitioner. Later, a warrant was happened to be initiated and upon coming to know about the pendency of the warrant against the petitioner, he surrendered before the Court and Annexure III order was passed thereupon. In the aforesaid order, the bail was granted to the petitioner on two conditions mainly, to execute a bond for Rs.15,00,000/- with two solvent sureties and also to deposit an amount of Rs.2,00,000/- in the Court. The grievance of the petitioner is against the condition No.2 namely, the direction to deposit an amount of Rs.2,00,000/- in the Court. This Crl.M.C is filed challenging the same. 4. Heard Sri.K.K.Dheerendrakrishnan, the learned counsel appearing for the petitioner and Smt.Sreeja.V, the learned Public Prosecutor appearing for the State. 5. The learned counsel for the petitioner points out that Condition No.2 is onerous and is illegal as well. He places reliance upon the decisions rendered by the Hon'ble Supreme Court in **Keshab Narayan Banerjee and Another v. State of Bihar** [AIR 1985 SC 1666], **Amarjit Singh v. State of NCT of Delhi** Crl.M.C No. 4820 of 2022 4 [2009(13) SCC 769] and a judgment rendered by this Court in **Jomon v. State of Kerala** [2010 (2) KHC 264]. It is discernible from the principles laid down in the aforesaid judgments that, imposing a condition directing the accused to deposit an amount for the purpose of release on bail is unwarranted and unjustifiable. In this case, it is discernible from the records that, the petitioner was originally granted anticipatory bail. As per the principles laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State of NCT of Delhi [2020(1) KLT 544 (SC) ],** the aforesaid bail will have its effect until the trial is completed, subject to the conduct and behavior of the accused. It is true that, a non-bailable warrant was happened to be issued against the petitioner after taking cognizance. However, the case of the petitioner is that no summons was served upon the petitioner. 6. The conditions imposed while granting bail aim to ensure the appearance before the court as and when required. The same cannot be treated as a provision for recovering the amount allegedly cheated by him or to create security for the said amount. Since the bail is granted at the stage when the person concerned Crl.M.C No. 4820 of 2022 5 is only an accused, he has to be treated as innocent unless proven otherwise. Moreover, none of the provisions in Cr. P.C contemplates the imposition of a condition directing deposit of the amount for granting bail. Therefore, imposing onerous conditions would amount to infringement of the person's personal liberty, guaranteed under Article 21 of the Constitution of India; hence, unless exceptional circumstances exist, no such conditions shall be imposed. In **Shri Gurubaksh Singh Sibbia and Others v.State of Panjab [AIR 1980 SC 1632]** , a Bench of five judges of the Honourable Supreme Court, while considering the conditions that can be imposed for granting anticipatory bail under section 438 of Cr.P.C, it observed as follows: “26………………. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be be found on Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend upon, compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after decision in Maneka Gandi, Crl.M.C No. 4820 of 2022 6 1978 (2) SCR 621 that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not be found therein.” 7. In such circumstances, in the light of the factual situation existing in this case and also in the light of the principles laid down by the Hon'ble Supreme Court in the above decisions, I am of the view that, the condition No.2 imposed by the learned Magistrate is unwarranted and requires reconsideration. 8. The petitioner has already surrendered before the Court and executed a bond for Rs.15,00,000/- as ordered by the Court. since this Court stayed the Condition No.2 when this Crl.M.C came up for admission before this Court. On perusal of the facts and circumstances of the case, I am of the view that the bond executed by the petitioner is sufficient for ensuring the presence of the accused, particularly because he was originally granted anticipatory bail by the Court concerned. Therefore, I am inclined Crl.M.C No. 4820 of 2022 **==> picture [22 x 10] intentionally omitted <==** to interfere with the order passed by the learned Magistrate, as evidenced by Annexure III. In the result, this Crl.M.C is allowed, and Condition No.2 in Annexure 3 order is set aside. Sd/- **ZIYAD RAHMAN A.A.** **JUDGE** rpk Crl.M.C No. 4820 of 2022 8 ## **APPENDIX OF CRL.MC 4820/2022** PETITIONER ANNEXURES Annexure-I Annexure-II Annexure-III A TRUE COPY OF THE COMMON ORDER DATED 10.03.2014 IN CRL MC NO.337/2014 PASSED BY COURT OF SESSIONS, MANJERI A TRUE COPY OF THE FINAL REPORT WITHOUT LIST OF WITNESSES IN CRIME NO. 960/2013 OF KUTTIPURAM POLICE STATION, MALAPPURAM CERTIFIED COPY OF THE ORDER IN CMP NO. 9636/2022 IN CC NO. 2115/2016 PENDING ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, TIRUR