IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR
TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937
Bail Appl..No. 688 of 2016
CRIME NO. 670/2015 OF AMBALAVAYAL POLICE STATION , WAYANAD
NAHIF ALI @ MANU
S/O.HASSAN, CHOLACKAL HOUSE, VADAPPURAM
P.O.,NILAMBUR, MALAPPURAM DISTRICT.
BY ADVS.SRI.BABU KARUKAPADATH
SRI.MITHUN BABY JOHN
SRI.SATHEESH KUMAR N.
THE STATION HOUSE OFFICER,
AMBALAVAYAL POLICE STATION, AMBALAVAYAL, WAYANAD
DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
BY PUBLIC PROSECUTOR SRI. V.S. SREEJITH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
01-03-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B. SUDHEENDRA KUMAR, J.
Dated this the 1st day of March, 2016
The petitioner is the third accused (originally the fifth accused) in Crime No.670 of 2015 of Ambalavayal Police Station, registered for the offence under Section 3 (1) of the Prevention of Damage to the Public Property Act and Sections 120 (B) and 201 read with section 34 IPC.
2. The prosecution allegation is that on 8.01.2015 at about 4.30 a.m., the petitioner along with the other accused in furtherance of their common intention, transported chick through Talur Check Post in two Volero pick up vans, escorted by a car, after causing damage to the pillar of the check post, for evading sales tax to the tune of Rs.3,00,000/-. The State Government sustained a loss to the tune of Rs.5,370/- due to the damage caused to the check post pillar.
3. The petitioner has filed this application under Section 439 of Cr.P.C.
5. This Court as per order dated 9.12.2015 in B.A.No.7414 of 2015 granted the relief under Section 438 Cr.P.C. in favour of the petitioner and the other accused with a direction that they should surrender before the investigating officer within ten days from the date of the said order, if not arrested in the meantime. While so, the petitioner and the other accused filed Crl.M.A.No.198 of 2015 seeking for making correction in respect of the District and the name of the third petitioner in the memorandum of bail application, namely, B.A. No. 7414 of 2015. It was also requested for making necessary correction in this regard in order in B.A. No. 7414 of 2016 dated 9.12.2015 passed by this Court. During the pendency of the said application before this Court, the petitioner was arrested by the Sub Inspector of Police, Ambalavayal on 19.1.2016. Thereafter, he was produced before the learned magistrate on 20.1.2016. The learned magistrate was informed of the order passed by this Court under Section 438 of the Code by the Sub Inspector of Police through the remand application. The petitioner also produced the certified copy of the order passed by this Court, granting the relief under Section 438 of the Code in favour of the petitioner, along with the bail application. The learned magistrate, disregarding the said order, remanded the petitioner to judicial custody. The bail application filed by the petitioner was dismissed by the learned magistrate as per order dated 23.1.2016 in CMP No.448 of 2016.
6. This Court was informed about the remand of the petitioner by the learned counsel for the petitioner when CMA 199 of 2015, which was an application seeking for extension of time to surrender, was taken up for hearing on 25.1.2016. On that day, this Court directed the learned Magistrate to submit explanation as to why the petitioner was remanded to judicial custody declining bail, even after having the knowledge that this Court had already granted the relief under Section 438 of the Code in favour of the petitioner. This Court also directed to release the petitioner on interim bail forthwith.
7. The learned magistrate submitted explanation dated 25.1.2016, which would show that the learned magistrate had taken up the matter lightly and casually. Since this Court found that the learned magistrate had lightly and casually taken up the matter and submitted the reply disregarding the ratio laid down by the Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others [AIR 2011 SC 312] and this Court in Jose George v. State of Kerala [2006 (2) KLT 188], as if she had rightly remanded the petitioner to the judicial custody, this Court directed the learned magistrate to submit further explanation as to why the learned magistrate remanded the petitioner even after having the knowledge that the order of pre-arrest bail granted by this Court was not cancelled by this Court. The learned magistrate submitted explanation dated 30.1.2016, admitting the mistake on her part and tendering apology.
8. A learned Single Judge of this Court in Jose George v. State of Kerala [2006 (2) KLT 188] held thus:
“When this Court grants the relief of pre-arrest bail, though there is no specific direction to the Magistrate, the message is clear that this court is of the view that the person to whom the relief of pre-arrest bail is granted is not to be remanded to judicial custody.”
9. The Constitution Bench of the Hon’ble Apex Court in Shri. Gurbaksh Singh Sibbia and Others v. State of Punjab (1980 (2) SCC 565) held that the normal rule should be not to limit the operation of the order under section 438 Cr.P.C. in relation to a period of time and the bail granted by the Court should ordinarily be continued till the trial of the case. The Apex court in Sibbia’s case (supra) further held in paragraph 36 thus:-
“Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session, it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the code, as and when an occasion arises. Such a course will defeat the very object of Section 438.”
10. The Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others (AIR 2011 SC 312) held that the court which grants the bail also has the power to cancel it and the discretion to cancel the bail can be exercised either at the instance of the public prosecutor or the complainant on finding new material or circumstances at any point of time. It was further held in Siddharam (supra) that the order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia’s case (supra). The Apex court in Siddharam (supra) further held in paragraph 117 thus:-
“The view expressed by this Court in all the above-referred judgments have to be reviewed and once the anticipatory bail is granted, then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused.”
11. The Apex Court in Bhadresh Bipinbhai Sheth v.State of Gujarat and another [2016 (1) SCC 152] quoted with approval the ratio laid down by the Apex Court in Siddharam (supra).
12. It is clear from the above decisions that once the pre-arrest bail is granted, the same will be in force unless it is canceled by the court granting the same or by the higher court. When pre-arrest bail is granted by the court, the same can be cancelled only by the court granting the order or by the higher court either at the instance of the public prosecutor or the complainant on finding new material or circumstances at any point of time. The pre-arrest bail granted by this court was not cancelled by this court and hence, the same was in force when the petitioner was remanded by the learned magistrate. Therefore, the learned Magistrate should not have remanded the petitioner to judicial custody, when the learned Magistrate was informed of the relief granted by this Court in favour of the petitioner under Section 438 of the Code. It was noticed by this court from the explanation submitted by the learned magistrate that the learned Magistrate had taken up the matter lightly and casually, without considering the seriousness of the issue involved in the case. It is clear that there was failure on the part of the learned magistrate in this regard. However, the learned magistrate did not even express any regret in the first explanation submitted by her. The humility must be the hallmark of a Judicial Officer. The judicial discipline is necessary for the existence of the judicial system. If judicial officers commit mistakes, the same will undermine the esteem of the judiciary. The judicial officers must be conscious about the importance of personal liberty vis-a-vis social interests. Therefore, the judicial officers must be careful and diligent while discharging their duties. The learned magistrate submitted in the second explanation that there was mistake on her part in dealing with the matter. However, in order to avert the impairing of the morale of the officers of the subordinate judiciary, this court restraints from making any adverse comment against the learned magistrate concerned. This court also accepts the second explanation and directs the learned magistrate to be more diligent and careful in discharging the duties in future.
13. The petitioner was granted interim bail by this Court. After hearing both sides, I am of the view that the interim bail granted to the petitioner can be made absolute on the same conditions and accordingly I order so.
14. In the result, this application stands allowed as above.
I make it clear that the observations made in this order are not intended to be treated as adverse remarks against the learned Magistrate and the said observations should not be used or even referred to for any purpose relating to the officer concerned, including her service prospects.
B. SUDHEENDRA KUMAR