Najmudeen, S/o Aboobacker v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 30TH DAY OF MAY 2017/9TH JYAISHTA, 1939** **Crl.MC.No. 3671 of 2017 ()** **---------------------------** **LP NO 59/2013 IN CC 304/2011 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1, PERINTALMANNA MALAPPURAM** **----------** **PETITIONER/ACCUSED:** **-------------------** **NAJMUDHEEN, S/O ABOOBACKER,** **EDAKKANDI KOTHAYAN CHALIL HOUSE, KODIYATHUR AMSOM, PANNIKKODE DESOM, KOZHIKKODE TALUK, KOZHIKKODE DISTRICT.** **BY ADVS.SRI.P.SAMSUDIN** **SRI.JITHIN LUKOSE** ## **RESPONDENT/COMPLAINANT:** **-----------------------** **STATE OF KERALA,** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **BY PUBLIC PROSECUTOR SRI JESTIN MATHEW** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30-05-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **K.V.** **CRMC 3671 OF 2017:** **------------------** ## **APPENDIX** ## **PETITIONERS ANNEXURES:** **----------------------** **A1: TRUE COPY OF THE COMPLAINT IN CC 304/2011 ON THE FILES JFCM COURT 1 PERINTALMANNA.** **RESPONDENT(S)' ANNEXURES NIL** **-----------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## ALEXANDER THOMAS, J. ================== Crl.M.C.No. 3671 of 2017 ================== Dated this the 30[th] day of May, 2017 ## O R D E R The petitioner is the accused for offence punishable under Sec.138 of the Negotiable Instruments Act in C.C.No. 304/2011 on the file Judicial First Class Magistrate's Court-I, Perinthalmanna, instituted on the basis of a complaint. The allegations in the complaint are that the petitioner had borrowed an amount of Rs.10 lakhs from the complainant and had issued 2 cheques for Rs. 5 lakhs each, which when presented, have been dishonoured for want of funds in the account of the accused and thereafter, in compliance with the statutory formalities, the complaint has been instituted, etc. 2. According to the petitioner, he has not received any summons in the case and that petitioner has been employed in Saudi Arabia and he was forced to accept the job for looking after his family. That non bailable warrant has been issued against and now the case has been included as L.P.No.59/2013 on the file of the abovesaid magistrate's court. The main prayer of the petitioner is that direction may be issued by this Court so as to direct the learned Magistrate to ensure that the applications for grant of bail and recall of warrant, etc. are considered on the same day, on which the petitioner proposes to Crl.M.C.3671/17 - : 2 :- surrender before the learned Magistrate, etc. Accordingly, the Crl.M.C. has been filed with the following prayers: “... .. to direct the Judicial First Class Magistrate's Court-I, Perinthalmanna to consider the bail application to be submitted by the petitioner/accused in L.P. 59/2013 in C.C.304/2011, on the day of his surrender before that court and release the petitioner on bail, in the interest f justice.” 3. Heard Sri.P.Samsudin, learned counsel appearing for the petitioner accused and Sri.Justin Mathew, learned Prosecutor appearing for the respondent State. 4. 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 has not taken note that where the offence is bailable and the accused, if he offers to Crl.M.C.3671/17 - : 3 :- 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. 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." 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: Crl.M.C.3671/17 - : 4 :- '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 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 and after taking into account the totality of the facts and circumstances disclosed in this case, that if the petitioner voluntarily surrenders and personally appears before the Judicial First Class Magistrate's Court-I, Perinthalmanna, dealing with L.P.No.59/2013 (arising out of C.C.No. Crl.M.C.3671/17 - : 5 :- 304/2011) and submits necessary applications of grant of bail, recall of non-bailable warrant, etc. within 2 weeks from the date notified for receiving the certified copy of this order, then the learned Magistrate shall consider those applications on the same day and pass necessary orders thereon on the same day itself, in accordance with law and in the light of the legal principles laid down by this Court and the Apex Court referred hereinabove and also taking into account the crucial fact that the offence alleged against the petitioner is only a bailable offence. The petitioner shall also produce a certified copy of this order before the learned Magistrate while making the abovesaid applications. The learned Magistrate pass necessary orders on the abovesaid applications as directed above. Until orders are passed by the learned Magistrate as directed above, the execution of the non-bailable warrant issued against the petitioner will stand under suspension. It is, however, made clear that in case the petitioner does not voluntarily surrender before the learned Magistrate within the abovesaid time limit stipulated herein above, the benefit of this order will stand automatically vacated within any further orders from this Court. With these observations and directions, the aforecaptioned Crl.M.C. stands finally disposed of. Sd/- sdk+ ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.M.C.3671/17 - : 6 :-