Madras High Court
R.Muthumari vs State Represented By on 18 March, 2010
Author: M.M.Sundresh
Bench: M.M.Sundresh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 18/03/2010 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH. Criminal Original Petition (MD) No.2962 Of 2010 R.Muthumari ... Petitioner Vs 1.State represented by The Inspector of Police, Avaniapuram Police Station, (In Crime No.415 of 2005). 2.The Superintendent of Prisons, Central Jail, Madurai. ... Respondents PRAYER This petition is preferred under Section 482 Cr.P.C to direct the 2nd respondent to release the petitioner forthwith who is lodged in Central Prison Madurai in respect of Crime No.415 of 2005 on the file of the 1st respondent. !For Petitioner ... Mr.C.Arulvadivel alias Seka ^For Respondents ... Mr.P.Rajendran Government Advocate(Crl.Side) :ORDER
The petitioner approaches this Court with a prayer to direct the 2nd respondent to release the petitioner forthwith who is lodged in Central Prison, Madurai in respect of Crime No.415 of 2005 on the file of the 1st respondent.
2. The petitioner herein is an accused in Crime No.415 of 2005 for the alleged offence under Section 366A, 376, 342, 307 r/w. 34 of I.P.C. In pursuant to the said case the petitioner was remanded on 16.08.2005 and thereafter he was enlarged on bail by the learned Judicial Magistrate No.VI, Madurai. Thereafter the said case was taken on the file of Mahila Court, Madurai in S.C.No.404 of 2006 and the same is pending.
3. In the meanwhile another case was filed against the petitioner in Crime No.1039 of 2009. The petitioner was also arrested in the said Crime number. In view of the fact that the petitioner was arrested in Crime No.1039 of 2009 a P.T. warrant was issued by the Mahila Court, Madurai in S.C.No.404 of 2006. In the meanwhile the petitioner was granted bail in Crime No.1039 of 2006 on 26.02.2010. Thereafter the petitioner was produced before the Mahila Court, Madurai under P.T. warrant on 02.03.2010. The learned presiding judge, Mahila Court, Madurai has remanded the petitioner to the prison even without canceling the bail.
4. The petitioner filed another bail petition before the Mahila Court, Madurai which is posted for hearing on 24.03.2010. The petitioner filed the present petition challenging the order of remand as one without jurisdiction contending that the Mahila Court does not have the power to remand in a case when a P.T. warrant was issued and when the petitioner was remanded in another case in Crime No.1039 of 2009 which was followed by an order enlarging him on bail on 02.03.2010.
5. The learned counsel for the petitioner submitted that the entire process adopted by the trial court is one without jurisdiction. He has also submitted that until and unless a bail duly granted by a competent court is cancelled the question of remanding an accused does not arise. He has further submitted that in the present case on hand admittedly the petitioner was produced on a P.T. warrant and the petitioner could not appear in view of the remand made in Crime No.1039 of 2009. He has also submitted that in such an event a remand cannot be made. The learned counsel in support of his contention has relied upon the judgment reported in 2004 MLJ (Crl.) 440(Appu alias Santhakumar and others Vs. State represented by Inspector of Police, Palavanthangal Police Station, Chennai and others), wherein this Court was pleased to observe that when a person who has already granted bail and produced under P.T. warrant he cannot be remanded but he can only be conveyed to prison. The learned counsel further submitted that in the present case on hand the question of conveying to prison also does not arise since he has been enlarged on bail. Therefore the learned counsel for the petitioner sought for setting aside the order of remand.
6. Heard the learned counsel appearing for the petitioner and the learned Government Advocate(Crl. Side) appearing for the State and also perused the materials available on record.
7. As submitted by the learned counsel for the petitioner even in case where an accused was arrested in another case and thereafter he was produced on P.T. warrant he cannot be remanded but he can only be conveyed to prison. In the present case on hand it is not in dispute that the petitioner has been granted bail. Therefore the Court below has committed an error in remanding the petitioner. It is further to be seen that the said order of remand would amount to cancellation of bail. If it is a cancellation of bail, the trial court will have to exercise the said power by issuing notice to the petitioner before doing so. The said exercise is also not required in the present case since admittedly the petitioner was on remand and that is the reason why he was not present before the Court. Therefore the order passed by the court below is totally incorrect and illegal.
8. It is no doubt true that a Magistrate of competent jurisdiction has got the power to cancel the Bail by exercising the power under Section 437(5) Cr.P.C. However such a power can only be exercised after affording sufficient opportunity to the accused, record his satisfaction before proceeding to pass the final order. Hence in the absence of the same the action of the Court below in remanding the petitioner cannot be sustained.
In the judgment rendered in Crl.O.P.No.1439 of 2010 dated 25.01.2010 (Prabakaran Vs. The State rep. by Inspector of Police, Kavindapadi Police Station, Erode District), this Hon'ble Court after referring to the order passed in Jagannath Rout Vs. State of Orissa (1975 Cri.L.J.1684) and Sham Sunder Vs. State of Delhi (1990 Cri.L.J.2370), has held as follows:
"10. I regret, I am unable to persuade myself to agree with the said view taken by the Orissa High Court as well as Delhi High Court wherein the learned Judges have taken the view that where there is failure of the accused to appear before the Court, no further enquiry or proof is necessary or contemplated for recording satisfaction. In my considered opinion, mere failure to appear before the Court, in the absence of any willfulness on the part of the accused, would not amount to"a breach" in terms of Section 446 of the Code of Criminal Procedure. Manifestly, there has to be an animus on the part of the accused not to abide by or comply with, the terms and conditions of the bond. Such animus alone makes the failure of the accused to appear, a breach in terms of Sectiion 446 of the Code. Such animus on the part of the accused could be ascertained only after affording sufficient opportunity to the accused. For example, while on his way to the Court, if an accused had met with an accident and he was taken to a hospital, such failure of the accused to appear before the Court on that particular date of hearing can never be treated as breach in terms of Section 446 of the Code. On receipt of notice, if the accused satisfies the Court that he was prevented from appearing before the Court due to sufficient reason, like the one, illustrated above, the Court may not record such satisfaction holding that the accused had committed a breach of bond. The language "proved to the satisfaction" needs to be underscored, which clears doubt, if any, that the term "proof" held within it "disproof" by the accused/surety also. Such proof or disproof of animus can be arrived at only after sufficient opportunity to the accused/surety. Such opportunity shall satisfy the principles of natural justice "Audi Alteram Partem" which is not alien to criminal law as it has the sanction of the Constitution of India. Therefore, before recording such satisfaction, notice to the accused is necessary and further enquiry should follow. On such enquiry only, the learned Magistrate has to get satisfied himself on proof as to whether there was any breach of the terms of the bond; and after so satisfied that breach has taken place, then only such recording of the satisfaction of the Court will indicate the breach of the terms of the bond.
11. The above view of mine is fortified by judgment of Himachal Pradesh High Court in Narata Ram Vs. State of Himachal Pradesh, 1994 Cri.L.J.491, wherein, the Himachal Pradesh High Court in para 10 has held as follows:
" The scheme of Section 446 of the Code of Criminal Procedure envisages two stages, as indicated above. No doubt, accused did not appear nor they could be produced by the petitioner and non-bailable warrants had been issued for their appearance on 1st July, 1992, the Court below had also afforded an opportunity to the petitioner to produce the accused on 1st July 1992. Had this last opportunity to produce the accused been afforded, the portion of the order dated 25th May, 1992, directing the forfeiture of the amount under the bonds was legal and valid and for the reasons stated above, the Court could be deemed to have satisfied regarding the existence of reasonable grounds for directing the forfeiture of the bond. Here, a composite order was passed. The petitioner could have produced the accused on 1st July 1992 and had he complied with the order to this effect, the circumstances would not have attracted the issuance of order forfeiting the bonds. Thus, in such circumstances, the Court cannot be deemed to have satisfied itself as to the existence of grounds for directing the issuance of forfeiture of the bonds on 25th May, 1992. In other words, the trial Court committed an illegality by exercising jurisdiction improperly, which had also not been noticed by the appellate Court."
12. In para 13 of the said judgment, the Himachal Pradesh High Court has gone to the extent of saying that issuance of notice to the individual to afford an opportunity is part of principles of natural justice which states that no adverse order could be passed to affect any party without affording sufficient opportunity of being heard.
13. In view of the said position, I am of the firm view that before recording such satisfaction that breach has been committed, the learned Magistrate is required to issue notice and after affording an opportunity to offer any explanation, if the Magistrate is not satisfied with the said explanation offered by the accused, then, he had to record such satisfaction that the terms of the bond have been breached which alone signifies the forfeiture of the bond.
9. I am in respectful agreement with the decision rendered by this Hon'ble Court above and applying the ration laid thereunder the present petition is liable to be allowed.
10. Hence on a consideration of the above said facts the order of remand passed against the petitioner is hereby set aside and the petitioner is directed to appear before the trial court on the next hearing to be fixed by the trial court. In view of the order passed by this court there is no necessity to take up the bail petition filed by the petitioner before the trial court. The second respondent is directed to release the petitioner forthwith.
11. This Criminal Original Petition is ordered accordingly.
cs To
1.The Judicial Magistrate No.VI, Madurai.
2.The Mahila Court, Madurai
3.The Inspector of Police, Avaniapuram Police Station,
4.The Superintendent of Prisons, Central Jail, Madurai.e Station, Dindigul District.
5.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.