Ragilesh and Lalitha v. State of Kerala and Assistant Commissioner of Police (North), Kozhikode City

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 03RD DAY OF MARCH 2020 / 13TH PHALGUNA, 1941 Crl.MC.No.934 OF 2020(F)** **AGAINST THE ORDER/JUDGMENT IN CRRP 89/2019 DATED 27-012020 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE** **AGAINST THE ORDER/JUDGMENT IN CMP 7327/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KUNNAMANGALAM** **CRIME NO.719/2019 OF Kunnamangalam Police Station , Kozhikode** ## **PETITIONERS/ACCUSED:** **1 RAGILESH, AGED 35 YEARS, S/O.SREEDHARAN, KOLLARAMBATH VEEDU, VELLANNUR, P.O.CHULOOR, KOZHIKODE - 673 601.** **2 LALITHA, AGED 59 YEARS, W/O.SREEDHARAN, KOLLARAMBATH VEEDU, VELLANNUR P.O., CHULOOR, KOZHIKODE - 673 601.** **BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ** ## **RESPONDENT/STATE/COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682 031.** 2 Crl.M.C.No.934 of 2020 **2 ASSISTANT COMMISSIONER OF POLICE (NORTH), KOZHIKODE CITY, KOZHIKODE - 673 004 (NOTICE SERVED UPON THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 018).** **SRI.SANTHOSH PETER SR.PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19-02-2020, THE COURT ON 03-03-2020 PASSED THE FOLLOWING:** 3 Crl.M.C.No.934 of 2020 ## **C.R.** ## **P.B.SURESH KUMAR, J.** **-----------------------------------------------** **Criminal M.C. No.934 of 2020** **----------------------------------------------Dated this the 3[rd] day of March, 2020.** ## **O R D E R** Annexure A8 order, in terms of which the bail granted to the petitioners in a case registered for offences punishable under Sections 498A, 304B and 306 of the Indian Penal Code by the jurisdictional Magistrate has been cancelled by the Court of Session, is under challenge in this Criminal Miscellaneous Case. 2. The second petitioner is the mother of the first petitioner. They are accused 1 and 2 in Crime No. 719 of 2019 of Kunnamangalam Police Station. The accusation in the case is that the wife of the first accused has committed suicide on account of the cruelty and harassment of the accused in connection with the demand for dowry. On production of the 4 Crl.M.C.No.934 of 2020 accused before the jurisdictional Magistrate, they were remanded to custody. Later, the accused preferred application for bail before the jurisdictional Magistrate, and in terms of Annexure A5 order, the jurisdictional Magistrate enlarged the accused on bail. Annexure A5 order was challenged by the State in revision before the Sessions Court, and in terms of Annexure A8 order, the Sessions Court cancelled the bail granted to the accused. The accused are aggrieved by the said order of the Sessions Court. 3. Heard the learned counsel for the petitioners as also the learned Public Prosecutor. 4. The learned counsel for the petitioners contended that the bail once granted can be cancelled only if a supervening circumstance is made out, and it cannot be cancelled merely for the reason that the Sessions Court feels that it is a case where the Magistrate ought not to have granted bail to the accused. According to the learned counsel, there is no supervening circumstance in the instant case warranting cancellation of bail and that the impugned order is therefore Crl.M.C.No.934 of 2020 5 illegal. The learned counsel has placed reliance on the decision of the Apex Court in **The State through the Delhi Administration v. Sanjay Gandhi** , AIR 1978 SC 961, in support of the said contention. 5. Per contra, the learned Public Prosecutor has submitted that insofar as the case is one punishable with imprisonment for life, the Magistrate has no jurisdiction to grant bail. According to the learned Public Prosecutor, even if it is found that the reasons stated by the Court of Session for cancelling the bail are not sufficient for cancelling the bail, insofar as the Magistrate had no jurisdiction to grant bail to the accused, the decision to cancel the bail cannot be said to be illegal in any manner. 6. I have considered the contentions raised by the learned counsel on either side. 7. Section 437 of the Code of Criminal Procedure (Code) deals with the power of the Court to grant bail in cases involving non-bailable offences. Section 437 of the Code reads thus : 6 Crl.M.C.No.934 of 2020 ## 437. **When bail may be taken in case of non-bailable offence.** (1) When any person accused of, or suspected of, the commission of any 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 other than the High Court or Court of Session, he may be released on bail, but— (i) such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a -cognizable offence punishable with imprisonment for three years or more but not less than seven years: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any special Crl.M.C.No.934 of 2020 7 reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court: Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor. (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. (3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code, 1860 (45 of 1860), or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1), the Court shall impose the conditions, – 8 Crl.M.C.No.934 of 2020 (a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter; (b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected; and (c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary. (4) An officer or a Court releasing any person on bail under subsection (1), or sub-section (2), shall record in writing his or its reasons or special reasons for so doing. (5) Any Court which has released a person on bail under subsection (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, 9 Crl.M.C.No.934 of 2020 ## the Magistrate otherwise directs. (7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. In the light of the provision contained in Clause (i) of subsection (1) Section 437 of the Code, a Magistrate is not empowered to grant bail to a person accused of an offence punishable with death or imprisonment for life, if there appears reasonable grounds for believing that he has been guilty of the offence. In other words, a Magistrate is empowered to enlarge an accused in a case punishable with death or imprisonment for life, only if there are no reasonable grounds for believing that he has been guilty of the offence. The prohibition aforesaid is subject to the first and second provisos to sub-section (1) of Section 437 of the Code. If a case falls within the said provisos, the Magistrate has the power to enlarge the accused on bail even if there appear reasonable grounds for believing that the 10 Crl.M.C.No.934 of 2020 accused has been guilty of the offence. Sub-section (4) of Section 437 clarifies that a court releasing any person on bail under sub-section (1) shall record in writing its reasons for so doing. In the light of the specific provision contained in subsection (4) of Section 437 of the Code, according to me, if a Magistrate chooses to enlarge an accused who is guilty of an offence punishable with death or imprisonment for life, he shall state the reasons for arriving at the conclusion that there are no reasonable grounds for believing that the accused has been guilty of the offence punishable. I draw support for the above view from the decision of the Apex Court in **Prahlad Singh Bhati** v. **N. C. T., Delhi and another,** AIR 2001 SC 1444. Paragraph 6 of the said judgment reads thus : **6** . Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of Session yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under S. 437 of the Code in respect of a 11 Crl.M.C.No.934 of 2020 person who is, suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negativate the existence of reasonable ground for believing that such accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case, where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail. I also draw support for the above view from the Full Bench decision of the Gauhati High Court in **In Re : State of Assam and Another v.** 2007 KHC 6173. Paragraph 16 of the said judgment reads thus : 16. We, thus, find that a Magistrate has the jurisdiction to consider the prayer for bail of a person accused of commission of a non bailable offence punishable with death or life imprisonment. However, in order to release an accused on bail, the Magistrate is required to record specific finding that there is no reasonable ground for believing that the accused is guilty of an offence punishable with death or imprisonment for life. In view of the embargo provided under sub-clause (i) and sub-clause (ii), the Magistrate entertaining a bail application under S.437 shall have a very limited scope to consider bail. ## 8. Reverting to the facts of the present case, the 12 Crl.M.C.No.934 of 2020 order passed by the Magistrate does not indicate as to whether the Magistrate has considered the jurisdictional question, viz, whether there exist reasonable grounds for believing that the accused have been guilty of the offences alleged. The order does not also give reasons sufficient to hold that there are no reasonable grounds for believing that the accused have been guilty of the offences. In other words, it is a case where the Magistrate has acted without jurisdiction in granting bail to the accused. In so far as it is found that the Magistrate has acted without jurisdiction in granting bail to the accused, it is unnecessary to examine the correctness of the various findings rendered by the Court of Session to cancel the bail. The Criminal Miscellaneous Case, in the circumstances, is without merits and the same is, accordingly, dismissed. Sd/- **P.B.SURESH KUMAR, JUDGE** tgs 13 Crl.M.C.No.934 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.719 OF 2019 OF THE KUNNAMANGALAM POLICE STATION.** - **ANNEXURE A2 TRUE COPY OF THE REMAND REPORT IN CRIME NO.719 OF 2019 OF THE KUNNAMANGALAM POLICE STATION.** - **ANNEXURE A3 TRUE COPY OF THE BAIL APPLICATION FILED VIDE CMP NO.7327 OF 2019 BEFORE THE HON'BLE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, KUNNAMANGALAM.** - **ANNEXURE A4 TRUE COPY OF THE REPORT FILED IN CMP NO.7327 OF 2019 BEFORE THE HON'BLE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, KUNNAMANGALAM.** - **ANNEXURE A5 TRUE COPY OF THE ORDER DT.06/12/2019 IN CMP NO.7327 OF 2019 ON FILES OF THE HON'BLE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, KUNNAMANGALAM.** - **ANNEXURE A6 TRUE COPY OF THE AFFIDAVIT AND PETITION FILED IN CRL.RP.NO.89 OF 2019 ON FILES OF THE HON'BLE COURT OF THE PRINCIPAL SESSIONS JUDGE, KOZHIKODE.** - **ANNEXURE A7 TRUE COPY OF THE COUNTER AFFIDAVIT FILED IN CRL.RP.NO.89 OF 2019 ON FILES OF THE HON'BLE COURT OF THE PRINCIPAL SESSIONS JUDGE,KOZHIKODE.** - **ANNEXURE A8** - **TRUE COP OF THE ORDER D. 27/01/2020 IN CRL.RP.NO.89 OF 2019 ON FILES OF THE HON'BLE COURT OF THE PRINCIPAL SESSIONS JUDGE, KOZHIKODE.** ## **RESPONDENT'S/S EXHIBITS: NIL** ## **//TRUE COPY//**