Kerala High Court
Harilal vs State Of Kerala on 21 October, 2014
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
TUESDAY, THE 21ST DAY OF OCTOBER 2014/29TH ASWINA, 1936
Bail Appl..No. 7460 of 2014
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CRIME NO. 774/2014 OF NOORANADU POLICE STATION , ALAPPUZHA
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PETITIONERS/ACCUSED 1 TO 4:
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1. HARILAL, AGED 32 YEARS,
S/O SIVANKUTTY, VALIYATHU VADAKKATHIL VEEDU,
PEROORKARAZHMA, SOORANADU NORTH VILLAGE,
KUNNATHUR TALUK.
2. SUBHA, AGED 39 YEARS,
D/O SIVANKUTTY, VALIYATHU VADAKKATHIL VEEDU,
PEROORKARAZHMA, SOORANADU NORTH VILLAGE,
KUNNATHUR TALUK NOW RESIDING AT VALIYATHU VADAKKATHIL VEEDU,
PEROORKARAZHMA, THAMARAKKULAM VILLAGE, CHARUMMOODU.
3. JAYA, AGED 36 YEARS,
D/O SIVANKUTTY, VALIYATHU VADAKKATHIL VEEDU,
PEROORKARAZHMA, SOORANADU NORTH VILLAGE,
KUNNATHUR TALUK.
4. THANKAMONY AMMA, AGED 58 YEARS
W/O SIVANKUTTY, VALIYATHU VADAKKATHIL VEEDU,
PEROORKARAZHMA, SOORANADU NORTH VILLAGE,
KUNNATHUR TALUK.
BY ADVS.SRI.D.KISHORE
SRI.S.RASHEED
RESPONDENTS/STATE & COMPLAINANT:
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1. STATE OF KERALA,
REPRESENTE BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
2. THE SUB INSPECTOR OF POLICE,
NOORANADU POLICE STATION, ALAPPUZHA DISTRICT-688501.
BY PUBLIC PROSECUTOR SRI.C.RASHEED
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21-10-2014,
ALONG WITH BA.NO.7461/2014, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
PJ
ALEXANDER THOMAS, J.
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B.A.Nos.7460 of 2014 & 7461 of 2014
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Dated this the 21st day of October, 2014
ORDER
The four petitioners in B.A No.7460 of 2014 are accused Nos. 1 to 4 in Crime No.774 of 2014 of Nooranadu Police Station, Alappuzha district, registered for offences under Section 498A r/w Section 34 of the Indian Penal Code and three petitioners in B.A No.7461 of 2014 are accused Nos.1 to 3 respectively in Crime No.1181 of 2014 of Nooranadu Police Station, Alappuzha district, registered for offences under Sections 120(b), 420 and 416 r/w Section 34 of the Indian Penal Code. Petitioners 1 and 2 in B.A No.7461 of 2014 are petitioners 2 and 3 in B.A No.7460 of 2014. and they are the sisters of the husband of the de facto complainant.
2. The gist of the prosecution allegation in Crime No.1181 of 2014 of Nooranadu Police Station is that the 1st and 2nd accused being the sister-in-laws of the de facto complainant had committed cheating by taking back 7 sovereigns of gold ornaments pledged by the de facto complainant by impersonation and the 3rd accused B.A Nos.7460/2014 & 7461/2014 2 being the daughter of the 1st accused has impersonated the de facto complainant to take back the gold ornaments pledged with Muthoot Finance. The crime was registered on the basis of the direction issued by the jurisdictional Magistrate concerned in terms of Section 156(3) of the Code of Criminal Procedure.
3. Sri.D.Kishore, the learned counsel for the petitioners in both the bail applications seriously urged that the allegations are falsely foisted against the petitioners and that the entire dispute arose on account of difference of opinion between the de facto complainant and her husband who is the 1st petitioner in B.A No.7460 of 2014. It is further submitted by the learned counsel for the petitioners that investigation is completed and that going by the guidelines issued by the Apex court in Arnesh Kumar v. State of Bihar [2014(3) KLT 143 (SC)], the plea of the petitioners for anticipatory bail are fully tenable. The learned counsel for the petitioners would further submit that petitioners are prepared to abide by any conditions imposed by this Court to protect the bonafide interest of the prosecution.
4. The learned Public Prosecutor would submit that the presence of the petitioners is required for the purpose of investigation and that in case this Court is inclined to allow the B.A Nos.7460/2014 & 7461/2014 3 plea for anticipatory bail in this case, the petitioners shall be directed to appear before the Investigating Officer concerned and to fully co-operate with the conduct of the investigation.
5. Having considered the submissions of the learned counsel for the petitioners and the learned Public Prosecutor and having considered the totality of the facts and circumstances of this case, this Court is of the view that the plea of the petitioners herein are to be considered in accordance with the guidelines issued by the Apex Court in Arnesh Kumar v. State of Bihar [2014(3) KLT 143 (SC)], more particularly, the aspects dealt with in paragraphs 7, 8 and 9 of that decision, which read as follows:
"7. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.
8. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need B.A Nos.7460/2014 & 7461/2014 4 to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short `Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest. As the offence with which we are concerned in the present appeal, provides for a maximum punishment of imprisonment which may extend to seven years and fine, Section 41(1)
(b), Cr.PC which is relevant for the purpose reads as follows:
"41. When police may arrest without warrant.-(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person -
(a) x x x x x x
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely :-
(i) x x x x x
(ii) the police officer is satisfied that such arrest is necessary B.A Nos.7460/2014 & 7461/2014 5
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(a) to prevent such person from committing any further offence; or
(b) for proper investigation of the offence; or
(c) to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
(d) to prevent such person from making 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 the police officer; or
(e) as unless such person is arrested, his presence in the Court whenever required cannot be ensured, and the police officer shall record while making such arrest, his reasons in writing:
Provided that a police officer shall, in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
x x x x x x From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. Law mandates the police officer to state the B.A Nos.7460/2014 & 7461/2014 6 facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest. In pith and core, the police office before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC.
9. An accused arrested without warrant by the police has the constitutional right under Article 22(2) of the Constitution of India and Section 57, Cr.PC to be produced before the Magistrate without unnecessary delay and in no circumstances beyond 24 hours excluding the time necessary for the journey. During the course of investigation of a case, an accused can be kept in detention beyond a period of 24 hours only when it is authorised by the Magistrate in exercise of power under Section 167 Cr.PC.
The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention under Section 167, Cr.PC, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty bound not to authorise his further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that condition precedent for arrest under Section 41 Cr.PC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record its own satisfaction, may be in brief but B.A Nos.7460/2014 & 7461/2014 7 the said satisfaction must reflect from its order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement etc., the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording its satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant and secondly a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny."
6. This Court is inclined to grant pre-arrest bail to the petitioners in B.A Nos. 7460 of 2014 and 7461 of 2014 respectively, but, subject to stringent conditions so as to protect the interest of the prosecution.
Accordingly, it is ordered that in the event of the petitioners in B.A No.7460 of 2014 being arrested in connection with Crime No.774 of 2014 of Nooranadu Police Station, then, they shall be released on bail on each of them separately executing bond for `35,000/- (Rupees Thirty Five Thousand Only) with two solvent sureties each for the like amount to the B.A Nos.7460/2014 & 7461/2014 8 satisfaction of the investigating officer concerned in the aforementioned crime, and subject to the following conditions:
i) The petitioners shall surrender their passport, if any, before the jurisdictional Magistrate concerned within three days from the execution of the bail bond before the Investigating Officer and if either of them are not holders of passport, they shall file an affidavit to that effect in the said court. If the petitioners require their passport in connection with their travel abroad, then they shall approach the court concerned for the release of the same and for necessary permission in that regard. In case such an application is filed, the trial court or the jurisdictional Magistrate concerned, as the case may be, is free to consider the same on merits and to pass appropriate orders thereon, taking necessary guidance from the principles laid down in the decision of this Court in the case Asok Kumar v State of Kerala, (2009(2) KLT 712), notwithstanding the aforementioned conditions imposed by this Court.
ii) The petitioners shall not involve in any criminal offence of similar nature.
iii) The petitioners shall not influence the witnesses or shall not tamper or attempt to tamper evidence in any manner whatsoever.
iv) The petitioners shall appear before the Investigating Officer concerned on 29.10.2014 and fully co-operate with the investigation.
v) The petitioners shall report before the investigating officer concerned as and when directed by him.
B.A Nos.7460/2014 & 7461/2014 9 It is further ordered that in the event of the petitioner in B.A No.7461 of 2014 being arrested in connection with Crime No.1181 of 2014 of Nooranadu Police Station, then they shall be released on bail on each of them separately executing bond for `35,000/- (Rupees Thirty Five Thousand Only) with two solvent sureties each for the like amount to the satisfaction of the investigating officer concerned in the aforementioned crime, and subject to the following conditions:
i) The petitioners shall surrender their passport, if any, before the jurisdictional Magistrate concerned within three days from the execution of the bail bond before the Investigating Officer and if either of them are not holders of passport, they shall file an affidavit to that effect in the said court. If the petitioners require their passport in connection with their travel abroad, then they shall approach the court concerned for the release of the same and for necessary permission in that regard. In case such an application is filed, the trial court or the jurisdictional Magistrate concerned, as the case may be, is free to consider the same on merits and to pass appropriate orders thereon, taking necessary guidance from the principles laid down in the decision of this Court in the case Asok Kumar v State of Kerala, (2009(2) KLT 712), notwithstanding the aforementioned conditions imposed by this Court.
ii) The petitioners shall not involve in any criminal offence of similar nature.
B.A Nos.7460/2014 & 7461/2014 10
iii) The petitioners shall not influence the witnesses or shall not tamper or attempt to tamper evidence in any manner whatsoever.
iv) The petitioners shall appear before the Investigating Officer concerned on 29.10.2014 and fully co-operate with the investigation.
v) The petitioners shall report before the investigating officer concerned as and when directed by him.
If the petitioners violate any of the above conditions, then, the bails granted to them are liable to be cancelled.
The above two bail applications stand disposed of accordingly.
ALEXANDER THOMAS, JUDGE.
vdv