Kerala High Court
Shiji P. Antony vs State Of Kerala on 23 December, 2005
Equivalent citations: 2006CRILJ1097, 2006(1)KLT331, 2006 CRI. L. J. 1097, 2006 (2) AJHAR (NOC) 446 (KER), 2006 (3) ABR (NOC) 422 (KER), 2006 (3) AKAR (NOC) 340 (KER), (2006) 2 EASTCRIC 348, (2006) 3 CURCRIR 50, (2006) 40 ALLINDCAS 338 (KER), (2006) 1 KER LJ 219, (2006) 2 CRIMES 74, 2006 (54) ACC (SOC) 104 (KER)
Author: A.K. Basheer
Bench: A.K. Basheer
ORDER A.K. Basheer, J.
1. This petition has been filed by a defacto complainant in a crime under Sections 439(2) and 482 of the Code of Criminal Procedure, to cancel the order of pre-arrest bail granted in favour of respondent No. 2/accused.
2. Kuruppampady Police had registered Crime No. 291/2005 for offences punishable under Sections 447, 326 and 308 I.P.C. at the instance of the petitioner who was allegedly attacked by respondent No. 2 with a bill hook. The petitioner had suffered grievous injuries including "fracture of ulna with severed ECU mid forearm" apart from certain lacerated wounds on the other parts of the body.
3. Respondent No. 2 had filed an application under Section 438 of the Code of Criminal Procedure for anticipatory bail before the Sessions Court, Ernakulam. The learned Sessions Judge by order dated August 19, 2005 directed that "the petitioner be released on bail in the event of his arrest, on executing a bond for Rs. 15,000/- with two solvent sureties each in the like sum to the satisfaction of the officer concerned." It was made clear that "the bail if any granted as per this order will be in force only for two months". A copy of the said order has been produced as Annexure III. On the same day, respondent No. 1 appeared before the Judicial Magistrate of First Class, Perumbavoor. He was granted bail by the learned Magistrate in terms of the order passed by the learned Sessions Judge. A copy of the said order is on record as Annexure IV.
4. It is contended by the petitioner that the order passed by the learned Sessions Judge has resulted in grave miscarriage of justice. It is pointed out that the petitioner had suffered grievous injuries in the brutal attack perpetrated by respondent No. 2 with the bill hook. A perusal of Annexure I discharge summary issued from the hospital where the petitioner was treated, shows that he had suffered "Type II open fracture ulna with severed ECU mid forearm." He was admitted in the hospital on August 6,2005, the day on which the alleged incident took place, and was discharged on August 8,2005. The certificate further shows that a surgery had to be conducted for wound debridement. ECU repair and Ulnar nailing were also done. The arm was put in POP slab.
5. Learned counsel for the petitioner has also made available a photo copy of the Accident Register-cum-Wound Certificate issued by the Medical Officer, Government Hospital, Perumbavoor, where the petitioner was taken immediately after the incident. The wound certificate reveals that the petitioner had mentioned the name of respondent No. 2 to the doctor who had noticed the grievous injuries on the body of the petitioner. The Medical Officer had referred the petitioner to a major hospital in view of the seriousness of the injuries.
6. The learned Sessions Judge had granted anticipatory bail to respondent No. 2, since it was submitted before him that the alleged incident had occurred while respondent No. 2/accused was asserting his right over a pathway. It is apparent from the order that the grievous nature of the injury sustained by the petitioner/defacto complainant was not brought to the notice of the learned Judge. The learned Judge had also not referred to the medical records like the discharge summary, wound certificate, etc. It was specifically averred by the petitioner in the first information statement that the accused had tried to inflict injuries on his head and chest with the bill hook. He had sustained the fracture on his hand while trying to ward off one such attempt. There is no reference to any of the above aspects in the order. Therefore, there is considerable force in the contention raised by the petitioner that the order passed by the learned Sessions Judge was without a proper application of mind.
7. It is beyond controversy that this court can invoke its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to cancel the bail granted by the sessions court even if it be in the nature of an interim order Puran v. Rambilas and Anr. . Undoubtedly, such an order of cancellation can be passed to secure the ends of justice. Similarly, under Section 439(2) of the Code, this court can issue a direction that any person who has been released on bail under Chapter XXXIII, be arrested and committed to custody.
8. However, it is strenuously contended by learned counsel for respondent No. 2/ accused that so long as there is no allegation that the accused had violated any of the conditions of bail or had interfered with the investigation of the crime in any manner, it may not be just or proper to order cancellation of bail. It is also contended that the facts considered at the stage of grant of bail cannot be reconsidered for the purpose of cancellation of the same. Learned counsel for the accused has placed reliance on a decision of their Lordships of the Supreme Court in Bhagirathsinh Judeja v. State of Gujarat in this context.
9. It is the admitted position that the accused has not yet appeared before the investigating officer. He has not been questioned so far. It is also beyond dispute that the accused had appeared before the Judicial Magistrate of competent jurisdiction on the same day when the order of pre-arrest bail was granted in his favour. The order of the learned Magistrate reads thus:
Accused is present. Sureties are present. Anticipatory bail granted by the Hon'ble Sessions Court. Order is produced. Execute bond as per direction. As per the order of the Hon'ble Sessions Court anticipatory bail was granted only for 2 months.
Thus, it is evident that respondent No.2/accused had successfully evaded his being interrogated by the investigating agency. It is submitted at the Bar that the investigation is still in progress.
10. In Sunitha Devi v. State of Bihar and Anr. their Lordships of the Supreme Court held that the protection in terms of Section 438 of the Code can be granted for a limited duration during which, the regular court has to be moved for bail. Their Lordships further held that the provisions contained in Sections 438 and 439 of the Code shall not be allowed to be rendered meaningless and redundant. A perusal of the order passed by the learned Sessions Judge, apparently shows that it was passed without a proper application of mind. It is also evident that the court had not considered the material aspects like the medical records.
11. The learned Magistrate had passed Annexure IV order in a mechanical manner, understandably because the Sessions Court had already directed his release. But the accused had not moved the competent court for regular bail thereafter, though the Sessions Court had made it clear that the order of pre-arrest bail would be in force only for two months. Therefore, it was imperative that the accused ought to have moved the competent court for regular bail. In that event, the application for bail under Section 437/439 could have been considered on its merit and an order could have been passed after a careful examination of the materials on record.
12. It may be remembered that the charge against the accused includes an offence punishable under Section 308 as well. The order passed by the learned Magistrate undoubtedly shows that there was total lack of application of judicial mind. This is not what is contemplated under Section 437 of the Code. Respondent No. 2 had taken undue advantage of the benefit of the order given to him under Section 438 of the Code. Not only had he refused to move the court for regular bail, he had also not made himself available for interrogation before the investigating agency. Significantly the learned Sessions Judge had directed release of the accused on bail in the event of his arrest by a police officer. But the accused had surrendered before the Magistrate's Court and executed the bail bond. Thus, he had manoeuvred to get bail in a case which involved a serious offence punishable under Section 308 I.P.C. This cannot be permitted under law.
13. Therefore, the Crl.M.C. is allowed. The bail granted to respondent No. 2/accused is cancelled. Respondent No. 2 shall appear before the Judicial Magistrate of First Class, Perumbavoor on or before January 9, 2006. In the event of his failure to appear before the court as directed above, the learned Magistrate shall ensure that he is arrested and produced before the court forthwith.
14. If an application for bail is moved by respondent No. 2/accused, the learned Magistrate shall consider the same strictly on its merits and in accordance with law. It shall be ensured by the learned Magistrate that notice is given to the learned Asst. Public Prosecutor in advance and an opportunity to be heard is afforded before orders are passed on the bail application.