Shoukath Ali v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 15TH DAY OF MARCH 2017/24TH PHALGUNA, 1938** ## **Crl.MC.No. 2027 of 2017 ()** **--------------------------L.P.NO.86/2010 IN CC.NO. 89/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-1, PERUMBAVOOR --------** **PETITIONER/ACCUSED: ------------------------------------** **SHOUKATH ALI, S/O.M.A.MUHAMMED, AGED 46, MULADAN HOUSE, NEDUNGAPPRA P.O., PANICHIYAM KARA, ASAMANNOOR VILLAGE, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT.** **BY ADV. SRI.T.M.SUDHEER** **RESPONDENT/COMPLAINANT: ----------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** ## **BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 2027 of 2017 () -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **-------------------------------------------** **ANNEXURE 1 TRUE COPY OF THE COMPLAINT FILED BY THE COMPLAINANT DATED ON 28.01.2009 IN C.C.NO.89/2009 BEFORE THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERUMBAVOOR.** **ANNEXURE 2 TRUE COPY OF THE AFFIDAVIT FILED BY THE COMPLAINANT DATED ON 28.01.2009 IN CC NO.89/2009 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - I, PERUMBAVOOR.** **ANNEXURE 3 TRUE COPY OF THE VISA OF THE PETITIONER ISSUED BY THE SAUDI ARABIA DATED 03.04.2006.** **ANNEXURE 4 TRUE COPY OF THE PASSPORT PAGES OF THE PETITIONER ISSUED BY THE PASSPORT AUTHORITIES DATED 23.09.1997.** **RESPONDENT(S)' ANNEXURES: NIL** **-----------------------------------------------** **/TRUE COPY/** ## **P.S.TO JUDGE** **sts** ## ALEXANDER THOMAS, J. ================== Crl.M.C.No. 2027 of 2017 ================== Dated this the 15[th] day of March, 2017 ## O R D E R The petitioner is accused for offence under Sec.138 of the Negotiable Instruments Act in C.C.No. 89/2009 on the file of the Judicial First Class Magistrate's Court-I, Perumbavoor. The case of the complainant is that the petitioner herein (accused) had availed a loan of Rs. 1.5 lakhs from the complainant for the purpose of his business. Later the cheque in question was issued in discharge of the debt, etc. and the cheque when presented was dishonoured. After completing the necessary formalities, complaint was filed before the Judicial First Class Magistrate's Court-I, Perumbavoor. It is averred that the petitioner is an NRI and is working in Saudi Arabia since 10.4.2006. It is recently that the Police official had informed the wife of the petitioner in their residence that the petitioner is an accused in L.P.No.86/2010 (arising out of C.C.No. 89/2009) on the Judicial First Class Magistrate's Court-I, Perumbavoor and that a non-bailable warrant (NBW) is pending against him. It is stated that the petitioner had not received summons as he was abroad and that his absence before the court is not willful or deliberate, etc. Accordingly, the petitioner prays that necessary directions may be issued Crl.M.C.2027/17 - : 2 :- to the Judicial First Class Magistrate's Court concerned to consider and pass orders on the bail application on the date of his appearance itself, to secure the ends of justice. In the light of these aspects, the petitioner has filed the instant Crl.M.C. with the following prayers: “.... to direct the Judicial First Class Magistrate Court-I, Perumbavoor to favourably consider and pass orders on the bail application for regular bail filed by the petitioner, In L.P.No.86/2010 in C.C.No.89/2009 of (sic) before the Hon'ble Judicial First Class Magistrate Court-I, Perumbavoor, on the date of his appearance itself to secure the ends of justice.” 2. Heard Sri.T.M.Sudheer, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, appearing for the respondent State. 3. 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 Crl.M.C.2027/17 - : 3 :- 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 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 Crl.M.C.2027/17 - : 4 :- ## 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 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.' 4. Accordingly, it is ordered in the interest of justice that in case the petitioner personally appears before the Judicial First Class Crl.M.C.2027/17 - : 5 :- Magistrate's Court-I, Perumbavoor, which is dealing with L.P.No.86/2010 (arising out of C.C.No.89/2009), within a period of 2 weeks from the date notified for receiving certified copy of this order and makes appropriate application in relation to the prayers in this matter including application for grant of bail and application for recall of NBW, etc., then the learned Magistrate shall consider those applications on the day itself and pass appropriate orders thereon in accordance with law, in the light of the legal principles laid down by the Apex Court and by this Court in the aforesaid judgments, etc. Orders should be passed as directed above on the same day itself. Until the learned Magistrate passes orders as directed above, all further coercive steps pending against the petitioner including NBW, shall be kept under suspension. If the petitioner does not appear before the learned Magistrate within the aforestated time limit stipulated by this Court, then the aforesaid directions will stand automatically vacated without any further orders from this Court. With these observations and directions, the Crl.M.C. stands finally disposed of. Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge Crl.M.C.2027/17 - : 6 :-