Madras High Court
Parameswaran vs The Inspector Of Police on 2 August, 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.08.2012 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU Crl.O.P.No.18533 of 2012 Parameswaran ... Petitioner Vs. The Inspector of Police, N-1 Royapuram Police Staion, Chennai. ... Respondent Petition filed under Section 483 of the Code of Criminal Procedure praying to invoke the power of superintendence and set asid ethe order dated 30.07.2012 passed by the learned XVI Metropolitan Magistrate, George Town,Chennai in Crl.M.P.No.3129 of 2012 and consequently, grant bail to the petitioner in the case in Crime No.841 of 2012 pending on the file of the respondent police. For petitioner : Mr.N.R.Elango, Senior Counsel for Mr.L.Murali Krishnan For respondent (s) : Mr.M.Maharaja, Addl. Public Prosecutor ORDER
The petitioner is the 2nd Accused in Crime No.841 of 2012 on the file of the respondent police. Initially, the said case was registered under Section 174 of Cr.P.C. During the course of investigation, it was altered into one under Sections 304(1) and 304(A) of IPC. The petitioner was arrested by the respondent on 27.07.2012 and produced before the learned XVI Metropolitan Magistrate, George Town, Chennai, with a request for remanding him to judicial custody. In the request for remand itself, the respondent submitted to the court that the petitioner had been arrested only on the allegations that he had committed offence punishable under Section 304(A) of IPC. The petitioner, immediately after remand, filed a petition in M.P.No.3129 of 2012 seeking bail. The learned Magistrate ordered notice to the respondent. The respondent submitted a response before the learned Judicial Magistrate, in which, the respondent submitted that the petitioner is accused of an offence only under Section 304(A) of IPC and, therefore, the respondent had no objection for the grant of bail to the petitioner. It was argued before the learned Metropolitan Magistrate by the learned counsel for the petitioner that the offence under Section 304(A) of IPC, for which the petitioner has been accused of and arrested, is bailable. It was also contended that since the offence is bailable, it is his right to come out on bail and the court has no discretion.
2. But, the learned Metropolitan Magistrate by order dated 30.07.2012 dismissed the said petition on the ground that offence under Section 304(i) of IPC has also been mentioned in the alteration report and the said offence is triable exclusively by a Court of Sessions.
3. According to the petitioner, thereafter, he filed an application for bail before the learned Principal Sessions Judge, Chennai, in Crl.M.p.No.7596 of 2012. That petition came up for hearing before the learned II Additional Sessions Judge, Chennai because the learned learned Principal Sessions Judge was not sitting on 01.08.2012. When the matter was taken up for hearing before the II Additional Sessions Judge on 02.08.2012, an Advocate by name Mr.R.C.Manoharan filed a petition seeking to intervene in the matter and opposed the grant of bail and the learned Additional Sessions Judge without passing any order has simply adjourned the matter to 03.08.2012. In those circumstances, the petitioner has rushed to this court with this original petition under Section 483 of Cr.P.C.
4. On representation made by Mr.N.R.Elango, the learned senior counsel before this court, the matter has been listed by way of lunch motion. When this matter was taken up at 2.15 p.m., the learned Additional Public Prosecutor wanted a pass-over of the matter to get instructions from the respondent police. Accordingly, the matter was taken up at 4.00 p.m. and the learned Additional Public Prosecutor has got instructions from the respondent by the time. He has also produced the case diary for the inspection of the court. [After inspection it was returned to the learned Additional Public Prosecutor in the open court itself].
5. I have heard Mr.N.R.Elango, the learned senior counsel for the petitioner and Mr.M.Maharaja, learned Additional Public Prosecutor for the respondent and also perused the records carefully.
6. The facts of the case would be as follows:- In Chennai , there is a school known as "K.C.Sankaralinga Nadar Higher Secondary School". The deceased aged 13 years was studying VIII Standard in the said school. The 1st Accused in this case is one Karthik, aged 13 years and admittedly, a juvenile and studying VIII standard in the same school. For the students of VIII standard, the period between 2.00 and 2.40 p.m. was the play time [Physical Educational Training Class]. The students were in the ground playing various games according to their wish. The petitioner was a Physical Education Teacher in-charge of the said class. According to the prosecution, he was not available in the ground during the relevant point of time. When the students were playing , there was quarrel between the deceased - Ganesh Kumar and the juvenile accused Karthik. The deceased fisted juvenile accused twice or thrice with hands. The Juvenile accused retarded and he in turn fisted the deceased on his chest and other parts of the body. The deceased fell down. Thereafter, he was taken to the hospital where he was declared dead. Based on the above incident, the present case was registered initially under Section 174 of Cr.P.C.
7. During the course of investigation, it came to light that the death was due to the physical assault made by the juvenile accused. It also came to light that the petitioner who was supposed to monitor the students playing in the play ground was not available and the said act of the petitioner amounts to an offence punishable under Section 304(A) of IPC. Accordingly, an alteration report was submitted before the XVI Metropolitan Magistrate alleging that the juvenile accused had committed an offence punishable under Section 304(i) of IPC and the petitioner has committed an offence punishable under Section 304(A) of IPC.
8. The petitioner was arrested on 27.07.2012 and produced before the learned XVI Metropolitan Magistrate on the same day for remand and his bail application was dismissed as I have mentioned at the beginning of this order.
9. In this petition, it is submitted that the order of the learned Metropolitan Magistrate is wholly without jurisdiction, illegal and not sustainable in law. The learned senior counsel appearing for the petitioner would submit that the order of the learned Magistrate is a serious infringement of the right to life guaranteed under Article 21 of the Constitution of India and the same is also a serious human rights violation.
10. The learned senior counsel would further submit that the right to bail in a bailable offence is an absolute right and the learned Magistrate has got no power to deny bail. In this regard, the learned senior counsel for the petitioner would bring to my notice the judgement of the Hon'ble Supreme Court in Rasikalal v. Kishore, (2009) 4 Supreme Court Cases 446 wherein the Hon'le Supreme Court in para 9 has held as follows:-
"9. .......... 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.
11. In para 10 of the aforesaid judgement , the Hon'ble Supreme Court has held as follows:-
"The position of persons accused of non-bailable offence is entirely different. The right to claim bail granted by Section 436 of the Code in a bailable offence is an absolute and indefeasible right. In bailable offences there is no question of discretion in granting bail as the words of Section 436 are imperative. The only choice available to the officer or the court is as between taking a simple recognizance of the accused and demanding security with surety. The persons contemplated by Section 436 cannot be taken into custody unless they are unable or willing (sic unwilling) to offer bail or to execute personal bonds. There is no manner of doubt that bail in a bailable offence can be claimed by accused as of right and the officer or the court, as the case may be, is bound to release the accused on bail if he is willing to abide by reasonable conditions which may be imposed on him."
12. In my considered opinion too, the right to bail in a bailable offence is an absolute and indefeasible right of the accused. Neither the Magistrate nor the police office who has arrested the accused has any power to deny bail provided the accused is prepared to execute bond and also to produce sureties. The right to life is a very precious fundamental right guaranteed under Article 21 of the Constitution of India. Such right can be restricted only by following the procedure established by law. The procedure contemplated is found in Section 436 of Cr.P.C. As has been laid down by the Hon'ble Supreme Court, under Section 436 of Cr.P.C. it is mandatory for a Magistrate to grant bail and he has got no power to deny bail at all. The denial of bail in a bailable offence is, thus, a serious infringement of the fundamental right guaranteed under the Constitution. Such an order denying bail is undoubtedly without jurisdiction and illegal. Therefore, such order cannot be allowed to sustain.
13. In the case on hand, the learned Magistrate was of the view that since Section 304(i) of IPC has also been included in the alteration report, the accused is not entitled for bail. This approach of the learned Magistrate is totally erroneous. Even in the request made by the police to remand, it was made very clear that the petitioner herein has committed offence punishable only under Section 304(A) and he has got nothing to do with the offence under Section 304(i) of IPC. Before the Magistrate in the response filed by the police also, it was made clear that the offence said to have been committed by the petitioner is purely bailable and the respondent has no objection for grant of bail. Despite that, I am unable to understand as to why the Magistrate was not convinced to grant bail in this matter.
14. The learned senior counsel for the petitioner has fairly brought to the notice of this Court that after dismissal of the bail application by the Magistrate , the petitioner has moved the learned Principal Sessions Judge for bail. But, unfortunately, the learned Additional Sessions Judge who heard the matter has simply adjourned the matter on two occasions, as a result, the petitioner who is entitled for bail has been in incarceration from 27.07.2012 onwards. Such continued detention is illegal and , therefore, such illegality cannot be allowed to continue for any more.
15. The learned senior counsel would submit that when the order passed by the learned Magistrate is illegal and the learned Additional Sessions Judge has not discharged his judicial function as expected of in law, it is for this Court to invoke its power of superintendence over courts of judicial magistrate under Section 483 of Cr.P.C. and the inherent power under Section 482 of Cr.P.C.. I am in full agreement with the above argument advanced by the learned senior counsel for the petitioner. After all the Code of Criminal Procedure is only a procedural law and it is not a substantive law; whereas the right of an accused to come out on bail is not only a statutory right under Section 436 of Cr.P.C. but also a constitutional right inbuilt in Article 21 of the Constitution. When such a right is very seriously infringed, I am of the view that this court has to necessarily invoke its inherent jurisdiction under Section 482 of Cr.P.C. as well as the power of superintendence over the court of magistrate under Section 483 of Cr.P.C. to set aside the said illegal order of the learned Metropolitan Magistrate.
16. The learned senior counsel would nextly contend that it was wrong on the part of the II Additional Sessions Judge, to have permitted a total stranger to oppose the bail application when it was taken on 02.08.2012. In my considered opinion, in a case of bailable offence, no one has got any right to oppose bail including the police and the de facto complainant. The learned senior counsel has produced the affidavit filed by the Advocate Mr.R.C.Manoharan before the learned Sessions Judge. In the said affidavit he has not stated anything as to how he has got locus standi in the matter. Assuming that he is an interested party and he has got locus standi, he has got no right to oppose the bail because the bail in bailable offence is an absolute right of the accused.
17. In view of all the above, I am inclined to set aside the order of the learned Metropolitan Magistrate and this petition must succeed.
18. In the result, the criminal original petition is allowed; the order dated 30.07.2012 made in Crl.M.P.No.3129 of 2012 by the learned XVI Metropolitan Magistrate , George Town, Chennai is hereby set aside; and the matter is remitted back to the learned XVI Metropolitan Magistrate , who shall dispose of the same as indicated above forthwith. It is further directed that in view of this order, the bail application filed by the petitioner in Crl.M.P.No.7595 of 2012 before the learned Principal Sessions Judge, Chennai, shall be withdrawn by the petitioner as undertaken by the learned Senior Counsel for the petitioner before this Court.
kmk To
1. The XVI Metropolitan Magistrate, George Town, Chennai.
2. The Inspector of Police, N-1 Royapuram Police Staion Chennai