Kerala High Court
Santhosh vs State Of Kerala on 2 December, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941
Bail Appl..No.8274 OF 2019
AGAINST THE ORDER/JUDGMENT IN CRMC 2277/2019 DATED 01-11-2019 OF
DISTRICT COURT & SESSIONS COURT, ERNAKULAM
CRIME NO.1263/2019 OF Fort Kochi Police Station, Ernakulam
PETITIONER:
SANTHOSH,
AGED 40 YEARS
S/O GANESHAN, HOUSE NO.10/1134, G.S.NIVAS,
DHARMASALA ROAD, VELI, FORT KOCHI-1.
BY ADV. SRI.SHERRY J. THOMAS
RESPONDENT:
STATE OF KERALA
THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM-35.
SRI,AMJAD ALI, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
02.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.8274 OF 2019
2
ALEXANDER THOMAS, J.
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B.A.No.8274 of 2019
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Dated this the 2nd day of December, 2019
O R D E R
The petitioner herein has been arrayed as the sole accused in Anx.A1 crime No.1263/2019 of Fort Kochi Police Station, Ernakulam District, which has been registered for offences punishable under Sections 354A(1)(ii), 354D(1)(i) of the IPC. The said crime has been lodged on the basis of the First Information Statement given by the lady defacto complainant on 02.10.2019 at about 4.50 P.M in respect of the alleged incidents which have happened on the same day (02.10.2019) on 8 A.M.
2. The petitioner would point out that the above said allegations have been made by the lady defacto complainant in this case falsely only because of the incidents in Anx.A2 Counter Case in crime No.1267/2019 of Fort Kochi Police Station, Ernakulam District, in which the mother of the petitioner herein is the defacto complainant therein and the accused therein is the husband of the lady defacto complainant herein and offences alleged therein are those under Sections 451, 324, Bail Appl..No.8274 OF 2019 3 323, 294(b) and 506 of the IPC and that the said incidents happened on the same day at about same time and it is only apprehending such action that the instant crime has been falsely registered, etc.
3. Learned Prosecutor would admittedly point out that all the offences alleged in the instant crime No.1263 /2019 of Fort Kochi Police Station are bailable offences and therefore petitioner does not have cause of action to seek for anticipatory bail under Section 438 of the Criminal Procedure Code and the remedy of the petitioner is to move for bail under Section 436 of the Criminal Procedure Code.
4. Learned counsel for the petitioner would point out that it is true that all the offences now included in Anx.A1 crime No.1263/2019 of Fort Kochi Police Station are bailable offences but that the petitioner has been openly threatened that the police would immediately add some non bailable offences against the petitioner in the instant crime. That apprehension of petitioner cannot be resolved by this Court, as the jurisdiction to consider the plea for anticipatory bail under Section 438 of the Criminal Procedure Code would arise only if an accused is alleged to have committed any non bailable offence. Counsel for the petitioner would then point out that the petitioner will be advised to immediately move an application before the Judicial First Class Magistrate Court, Bail Appl..No.8274 OF 2019 4 Mattanchery, who is dealing with the instant case for bail under Section 436 of the Criminal Procedure Code. Further it is pointed out by the petitioner's counsel that it is now well settled that, once the criminal court grants bail under Section 436 of the Criminal Procedure Code for bailable offences to an accused, then even if the Police subsequently adds non bailable offences to the said crime, then they can arrest such a person for involvement of the alleged non bailable offence only after getting permission from the learned Magistrate, who was granted bail under Section 436 of Criminal Procedure Code.
It is for the petitioner to work out his remedies in the manner known to law. Leaving such liberty to the petitioner and recording the above said submissions on both sides, the above application will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE mpm