Shibu T. Balan v. State of Kerala & The Secretary, Oorikkari Service Co-operative Bank Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 24TH DAY OF OCTOBER 2017/2ND KARTHIKA, 1939** ## **Crl.MC.No. 7203 of 2017 ()** ## **--------------------------L.P.NO.19/2012 IN CC.NO.03/2010 OF JUDICIAL FIRST CLASS MAGISTRATE COURT AT RAMANKARY, ALAPPUZHA DISTRICT** **----------------------** ## **PETITIONER/ACCUSED :** **------------------------------------** **SHIBU T. BALAN, S/O.LATE T. BALAN, AGED 48 YEARS, RESIDING AT SHINE VIHAR, NALLEPPILLY VILLAGE, CHITTOOR TALUK, PALAKKAD DISTRICT, PIN -678 553** ## **BY ADVS.SRI.PRAVEEN K. JOY SRIP.S.SUJETH** ## **RESPONDENT(S)/COMPLAINANT:** **------------------------------------------------** ## **1. STATE OF KERALA,** **REP. BY GOVERNMENT PLEADER, HIGH COURT OF KERALA, ERNAKULAM, PIN -682 031** ## **2. THE SECRETARY,** **OORIKKARI SERVICE CO-OPERATIVE BANK LTD NO.1239, RAMANKARY, ALAPPUZHA DISTRICT, PIN -689 595** ## **R1 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24-10-2017,ALONG WITH CRL.M.C.NO.7205 OF 2017 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** **Crl.MC.No. 7203 of 2017 ()** ## **--------------------------------------** ## **APPENDIX** |**PETITIONER(S)' ANNEXURES:**| |---| |**----------------------------------------------**| |**ANNEXURE 1 TRUE COPY OF THE OFFICIAL MEMORANDUM OF THE CJM COURT,**| |**THRISSUR, DATED 03-08-2017 ISSUED TO THE POOJAPPURA**| |**CENTRAL JAIL SUPERINTENDENT TO RELEASE THE PETITIONER IN**| |**CRIME NO.3473/16 OF TOWN EAST POLICE STATION, THRISSUR**| |**ANNEXURE 2 TRUE COPY OF THE DISCHARGE SUMMARY OF PETITIONER FROM**| |**THE HOSPITAL DATED 07-04-2017**| |**RESPONDENT(S)' ANNEXURES:**<br>**NIL**| |**-----------------------------------------------**| |**/TRUE COPY/**| |**P.S.TO JUDGE**| **sts** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.Nos.7205, 7203, 7213, 7214, 7227, 7228, 7233, 7234, 7243, 7244, 7248 & 7250 of 2017 ================== Dated this the 24[th] day of October, 2017 **O R D E R** The petitioner is accused for offence punishable under Sec. 138 of the Negotiable Instruments Act, in 12 separate complaints on the file of the Judicial First Class Magistrate's Court at Ramankary, in Alappuzha district, which are the subject matter of these 12 Criminal Miscellaneous Cases. 2. One Sri.P.G.Somanadhakumar, is the 2[nd] respondent (complainant) in Crl.M.C.No.7205/2017. Oorikkari Service Co-operative bank Ltd. No.1239, Ramankary, Alappuzha district, represented by its Secretary, is the 2[nd] respondent complainant with respect to other 11 Criminal Miscellaneous Cases. It is stated that the petitioner has not appeared before the court below in these complaints and that thereupon, the trial court had issued non-bailable warrants against the petitioner and has included these cases in the long pending case list. - (i) Crl.M.C.No. 7205/2017 arises out of L.P.No. 29/2012 in C.C.No. 13/2010, - (ii) Crl.M.C.No. 7203/2017 arises out of L.P.No. 19/2012 in C.C.No. 3/2010, (iii) Crl.M.C.No.7213/2017 arises out of L.P.No. 24/2012 in C.C.No. 8/2010, - (iv) Crl.M.C.No. 7214/2017 arises out of L.P.No. 23/2012 in C.C.No. 7/2010, (v) Crl.M.C.No. 7227/2017 arises out of L.P.No. 28/2012 in C.C.No. 12/2010, (vi) Crl.M.C.No. 7228/2017 arises out of L.P.No. 22/2012 in C.C.No. 6/2010, - (vii) Crl.M.C.No. 7233/2017 arises out of L.P.No. 21/2012 in C.C.No. 5/2010, - (viii) Crl.M.C.No. 7234/2017 arises out of L.P.No. 18/2012 in C.C.No. 2/2010, - (ix) Crl.M.C.No. 7243/2017 arises out of L.P.No. 25/2012 in C.C.No. 9/2010, _Crl.M.C.No.7203/17, etc._ - : 2 :- - (x) Crl.M.C.No.7244/2017 arises out of L.P.No. 27/2012 in C.C.No. 11/2010, - (xi) Crl.M.C.No.7248/2017 arises out of L.P.No. 20/2012 in C.C.No.4/2010, and - (xii) Crl.M.C.No. 7250/2017 arises out of L.P.No. 26/2012 in C.C.No. 10/2010, respectively. 3. It is stated by the petitioner's counsel that the petitioner has been arrayed as accused in certain other crimes registered for offence punishable under Sec.420 of the I.P.C., etc. and that he has already secured bail in some crimes. However, it is brought to the notice of this Court that the petitioner has not secured bail in Crime No. 6/2006 of Ramankary Police Station, for offence alleged under Secs. 419 and 420 of the I.P.C. and that though production warrant has been issued, his production has been delayed due to health reasons. It is also pointed by the learned Prosecutor that it is learnt that the accused is now detained in Central Jail, Poojappura, Thiruvanantpauram, in Crime No. 464/2016 of Palode Police Station, Thiruvananthapuram district. Further that the petitioner is a chronic heart patient and is suffering from serious cardiac ailments and he had undergone an angioplasty just before his arrest and now the doctors have advised to undergo another angioplasty or byepass surgery in the immediate future and that Anx.2 is the discharge summary certificate issued by the Department of Cardiology of the hospital concerned. ## 4. The prayer in each of these petitions is as follows: _“..... to give a direction to the J.F.C.M. Court Ramankary, to consider the bail application, if any moved at the time when the petitioner/ accused is produced followed by the production warrant, and the same may be considered and passed orders on the same day itself and until then, the warrant proceedings may be kept in abeyance by allowing the Memorandum of Criminal Miscellaneous Case, in the interest of justice.”_ 5. Heard Sri.Praveen.K.Joy, learned counsel appearing for the _Crl.M.C.No.7203/17, etc._ - : 3 :- petitioner and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State in these cases. In the nature of the orders that is proposed to be passed in these petitions, notice to the respective R-2 (complainant) will stand dispensed with in all these cases. 6. In this regard that 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 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 _Crl.M.C.No.7203/17, etc._ - : 4 :- 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."_ ## 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 para 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_ _Crl.M.C.No.7203/17, etc._ - : 5 :- _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.'_ 8. The offence alleged against the petitioner in all these 12 complaints is one under Sec.138 of the Negotiable Instruments Act, which is a bailable offence. Therefore, going by the provisions contained in Sec.436 of the Cr.P.C., as well as the legal principles laid down by this Court and by the Apex Court in the aforcited judgments, the accused is entitled to be released on bail, and the fact that non-bailable warrants were issued against the accused or other coercive steps were initiated against _Crl.M.C.No.7203/17, etc._ - : 6 :- him, etc. are no ground to refuse bail in such cases. It is submitted on behalf of the petitioner that he is now detained in Central Jail, Poojappura, Thiruvananthapuram. 9. Accordingly, taking into consideration the totality of the facts and circumstances of this cases, it is ordered that the Judicial First Class Magistrate's Court, Ramankary, shall consider the applications for grant of bail, recall of non-bailable warrant, etc. that are moved by the petitioner in these 12 complaints, when the petitioner accused is produced consequent to the production warrant that is issued by the trial court in these cases, then such applications shall be considered and necessary orders passed thereon on the same day on which the petitioner is so produced, by taking into account the legal principles laid down by this Court in the decision in _**Oseela Abdul Khaker v. State of Kerala**_ reported in 2012 (4) KLT 535 and by the Apex Court in the decisions as in _**Rasiklal v. Kishore,**_ reported in (2009) 4 SCC 446, para 9, and also taking into account the fact the offence alleged against the petitioner is only a bailable offence. Since the petitioner has been arrayed as accused in many complaints, it is also ordered in the interest of justice that the learned Magistrate shall consider accepting the same set of sureties in all these 12 complaints, provided the requisite solvency value is duly satisfied. The learned Magistrate shall ensure that necessary steps are taken for issuance of production warrant so as to enable the surrender and appearance of the petitioner in terms of the _Crl.M.C.No.7203/17, etc._ - : 7 :- present directions of this Court given herein above. Until orders are passed by the learned Magistrate as directed herein above, the non-bailable warrant and other coercive steps issued against the petitioner in these 12 complaints may be deferred. The Registry shall forward copies of this order to the trial court concerned, at the cost of the petitioner. With these observations and directions, the aforecaptioned Criminal Miscellaneous Cases stand finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge