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Ragilesh vs State Of Kerala on 3 March, 2020

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 27-01-
2020 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.
Crl.M.C.No.934 of 2020 2

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:
Crl.M.C.No.934 of 2020 3

C.R.
P.B.SURESH KUMAR, J.
———————————————–
Criminal M.C. No.934 of 2020
———————————————–
Dated this the 3rd day of March, 2020.

ORDER

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
Crl.M.C.No.934 of 2020 4

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 :

Crl.M.C.No.934 of 2020 6

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, –

Crl.M.C.No.934 of 2020 8

(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 sub-
section (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 sub-
section (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,
Crl.M.C.No.934 of 2020 9

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 sub-

section (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
Crl.M.C.No.934 of 2020 10

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 sub-

section (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
Crl.M.C.No.934 of 2020 11

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
Crl.M.C.No.934 of 2020 12

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
Crl.M.C.No.934 of 2020 13

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//

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