Sharmila Mathew v. State of Kerala and Vivek Chandran

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 23RD DECEMBER 2011 / 2ND POUSHA 1933 Bail Appl..No. 10778 of 2011() -----------------------------CC.21816/2011 of METROPOLITAN MAGI.(9TH ADDL.CHIEF), BANGALORE .................... PETITIONERS/ACCUSED --------------------------------------- SHARMILA MATHEW, D/O.MATHEW, ARAKKAL HOUSE, MUNDAMVELI, ERNAKULAM-682507. BY ADV. SRI.B.S.SWATHY KUMAR SMT.P.V.SOBHANA SMT.M.G.AISHWARYA RESPONDENT(S): STATE AND DEFACTO COMPLAINANT -------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031. 2. VIVEK CHANDRAN, S/O.CHANDRAN, NO.142, 2ND D MAIN, - 8TH BLOCK, KORAMANGALA, BANGALORE-560002. 3. THE STATION HOUSE OFFICER, THOPPUMPADY POLICE STATION, ERNAKULAM-682505. BY P.P.SRI.R.RANJITH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J. --------------------------------------------Bail Appln.No.10778 of 2011 ---------------------------------------------Dated this the 23[rd] day of December, 2011** ## **ORDER** The petitioner apprehends arrest in execution of a nonbailable warrant in C.C.No.21816 of 2011 on the file of the court of the Additional Chief Metropolitan Magistrate, Bangalore. Hence, the petitioner has filed this application for anticipatory bail. 2. In paragraphs 2 and 3 of the Bail Application, it is stated as follows:- “2) Now the petitioner understands that a non bailable warrant has been issued by the Additional Chief Metro Politan Magistrate Court, Bangalore in C.C.No.21816/2011. The petitioner came to know of the same when the 2[nd] respondents men came to her house for demanding more amount, they have know threatened the petitioner with arrest. True copy of the summons the Additional Chief Metro Politan Magistrate Court, Bangalore in C.C.No.21816/2011 dated 7-7-2011 is produced herewith and marked as **Annexure-A.** Bail Appln.No.10778/2011 : 2 : 3) Now as the warrant of arrest is pending against the petitioner she apprehends arrest at any point of time especially when the 2[nd] respondents men are went upon having the petitioner arrested. The petitioner is ready and willing to appear before the Court at Bangalore and take bail, since Court is situated in the State of Karnataka she needs some time to make the necessary arrangements and go to Bangalore and get herself enlarged on bail, if in the meanwhile she is arrested she will be taken to Bangalore and she will be put irreparable injury loss and sufferings.” 3. The learned counsel for the petitioner submitted that the summons was received late and therefore the petitioner could not appear before court. Due to nonappearance of the petitioner, warrant was issued by the court. ## 4. In **Koshy v. State of Kerala : 2010 (1) KLT 945** , it was held: “16. Now, I shall consider the contention that the Bail Application is not maintainable, since the arrest is sought to be made on the basis of a warrant issued by a competent Court. In Bharat Chaudhary v. State of Bihar (2003 (3) KLT 956 (SC) = (2003) 8 SCC 77), the Bail Appln.No.10778/2011 : 3 : Supreme Court held that S.438 of the Code of Criminal Procedure can be invoked even after charge sheet is filed and cognizance is taken. It was held: “From the perusal of this part of S.438 of Cr.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge sheet is filed. The object of S. 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases.” 17. In Vineeth Somarajan v. State of Kerala (2009 (3) KLT 576 = 2009 (3) KHC 471), after filing the charge sheet, non bailable warrant was issued by the court for the arrest of the accused. The accused moved the High Court under S.438 Cr.P.C. Referring to Bharat Chaudhary's case and Salauddin Abdulsamd Shaikh v. State of Maharashtra ((1996) 1 SCC 667), it was held: Bail Appln.No.10778/2011 : 4 : “6. It is true that going by the decision in Bharat Chaudhary's case, there is no bar in entertaining an application under S.438 of the Code of Criminal Procedure after the charge sheet is filed. However, it is not a general rule that the power under S.438 of the Code of Criminal Procedure could be exercised in each and every case, where charge sheet is filed. Exceptional circumstances may arise in which exercise of the power by the Sessions Court or the High Court under S.438 may be warranted and the fact that the charge sheet was filed in the case would not be a bar to entertain such an application under S.438 of the Code of Criminal Procedure. Ordinarily, when a charge sheet is filed, it is for the Court which has to try the case that has to deal with the application for regular bail. Whether bail should be granted in the facts and circumstances of the case, has to be considered by the Court which is expected to try the case.” 18. In Vineeth Somarajan's case, warrant was issued after the charge sheet was filed. In Rajeevan v. State of Kerala (2008 (4) KLT 98 = 2008 (4) KHC 70), proceedings under Ss.82 and 83 Cr.P.C. were taken against the accused Bail Appln.No.10778/2011 : 5 : and non bailable warrant was issued. In the present case, it would appear that warrant was issued by the Court on the request of the investigating officer pending investigation. In the light of the decisions referred to above, I am not inclined to accept the contention put forward by Sri.Ramakumar that the Bail Application is not maintainable since the petitioners are sought to be arrested in execution of a non bailable warrant. 19. In C.I.Mathew v. Government of India (1984 KLT 942), Justice Bhaskaran Nambiar considered the question whether the High Court has power to grant anticipatory bail in respect of offences committed outside the jurisdictional limits of that High Court and held in the affirmative. It was held thus: “11. If arrest is sought to be prevented, the place where the arrest is effected gives reasonable nexus for the exercise of jurisdiction under S.438. The court, whether it is the High Court or the Sessions Court, within whose jurisdiction the arrest is sought to be effected can naturally have jurisdiction to decide whether it thinks fit to grant anticipatory bail. The arrest is made with reference to a crime, at the behest of the Bail Appln.No.10778/2011 : 6 : police or Magistrate within whose jurisdiction the offence is alleged to be committed. Thus the court within whose jurisdiction the offence is alleged to have been committed is, without doubt, a court competent to exercise the powers to grant anticipatory bail. 12. If thus there are two courts of concurrent jurisdiction empowered to grant anticipatory bail,- the court within whose jurisdiction the offence is committed, and the court within whose territory the person is sought to be arrested - conflict of decision has to be avoided and inherent limitation is thus implicit in the exercise of this jurisdiction under S.438. The anticipatory bail granted by the High Court or Sessions Court within whose jurisdiction the offence is committed will enure beyond the territorial limits of that court as the arrest sought to be made is within reference to that specific crime or offence and the police can pursue the offender beyond its jurisdiction to enforce the arrest. In granting anticipatory bail in a State where the applicant is sought to be arrested, the High Court naturally has to restrict the relief and direct that in the event of the appellant's arrest in that State, he will be released on certain conditions. In the latter case, the High Court will not extent relief to arrests made beyond that State. In this view Bail Appln.No.10778/2011 : 7 : the residence of the accused may not be a relevant factor to fix jurisdiction for this purpose.” 20. In the light of the decision of the Punjab and Haryana High Court in Ravinder Mohan v. State of Punjab (1984 Crl. L.J. 71) taking a contrary view, the question was considered by a Division Bench of this Court in Madhusoodanan v. Superintendent of Police ((1992 (2) KLT 83). The Division Bench confirmed the decision in C.I.Mathew v. Government of India (1984 KLT 942). 21. In Shree Baidyanath Ayurved Bhawan Private Limited v. State of Punjab & Ors. ((2009) 9 SCC 414), it was held: “For the purpose of grant of anticipatory bail, the Court of Session or the High Court must take into consideration the ingredients therefor as laid down in S. 438 of the Code of Criminal Procedure. Ordinarily, an order granting anticipatory bail should not be for an indefinite period, particularly when the F.I.R. had been in a police station of another State.” 22. In the light of the decisions referred to above, there cannot be any doubt that this Bail Appln.No.10778/2011 : 8 : Court has jurisdiction to entertain the Bail Application and grant appropriate relief.” 5. In the facts and circumstances, I am of the view that a breathing time can be provided to the petitioner to appear before the Additional Chief Metropolitan Magistrate's Court, Bangalore. Accordingly, there will be a direction that if the petitioner is arrested in the State of Kerala within a period of six weeks from today in execution of the non-bailable warrant issued in C.C.No.21816 of 2011 on the file of the court of the Additional Chief Metropolitan Magistrate, Bangalore, she shall be released on bail on her furnishing a bond for `10,000/-with two solvent sureties for the like amount to the satisfaction of the Magistrate within whose jurisdiction the petitioner is arrested. The petitioner shall surrender before the court of Additional Chief Metropolitan Magistrate, Bangalore, within a period of six weeks. ## **K.T.SANKARAN, JUDGE** skj