Kerala High Court
Biju S. Praveen vs State Of Kerala And Anr. on 7 March, 2006
Equivalent citations: 2008(1)KLJ713, 2007 CRI. L. J. (NOC) 291 (KER.), 2007 (3) AJHAR (NOC) 783 (KER.)
Author: A.K. Basheer
Bench: A.K. Basheer
ORDER A.K. Basheer, J.
1. This application filed under Section 482 of the Code of Criminal Procedure depicts how judicial insensitivity can result in grave miscarriage of justice. The power and majesty of magistracy may be an alluring proposition, especially in a mofussil area. But the judicial officers occupying the seat of justice must always remember that they are dealing with problems of human beings. Insensitivity and insouciance bordering on callous apathy to human feelings may result in extreme mental torture to those who are unwittingly dragged to a criminal court.
2. In the instant case a young man, who was involved in a road accident while he was away from his home town, had to face the wrath of a Magistrate. Resultantly, he was banished to judicial custody for a day. The learned Magistrate probably had the satisfaction that he had shown his Magisterial powers and given vent to his judicial wrath. But at what cost?
3. On February 8. 2003 the petitioner, his parents and sister were proceeding to Chandrapur in Maharashtra through National Highway 47. The petitioner was driving the car which got involved in a road accident. According to the petitioner, an autorickshaw which was coming from the opposite direction suddenly took a turn to a pocket road on his right without giving any signal. Resultantly petitioner had to stop his car suddenly but by that time, another car which was coming from behind the autorickshaw dashed against petitioner's vehicle resulting in grievous injury to the head and right eye of his father (ultimately he lost his vision permanently due to the injury). Petitioner's sister who was sitting in the rear seat, sustained a fracture on her right foot. His mother suffered injuries on her eye. Petitioner had also sustained a ligament injury to his right leg. To make a long story short, petitioner, his parents and sister who were rushed to Fort Hospital. Palakkad. had to be shifted to K.G. Hospital, Coimbatore. According to the petitioner, the matter was reported to Kasba Police not only by him, but by his father as well, through his communication dated February 18,2003.
4. Later, the petitioner come to know that the police had registered a case against him, and not against the real culprits. Therefore, the petitioner had filed a private complaint against the real offender before the competent court at, Palakkad. The said complaint was referred to the police for investigation under Section 156(3) of the Code Crime No. 77/2003 was registered by Rasba Police in this connection. In the meanwhile, in the crime registered against the petitioner for offences punishable under Sections 279, 337 & 338 I.P.C. (Crime No.28/2003), the petitioner was released by the police on bail. According to the petitioner, his father had resigned from his job in Maharashtra shortly after the accident and the family has settled down in Thrissur permanently.
5. In October 2004, petitioner got information that a non-bailable warrant has been issued by the Magistrate's Court against him. On enquiry it was revealed that the warrant was in connection with the case relating to the road accident. According to the petitioner, he had not received any summons or notice from the court in connection with the above case. He was advises that if he surrendered before the court, he may be remand to custody since a non-bailable warrant was pending against him. He was further informed that his bail application was likely to be considered only on the next day as that was the usual practice that was being followed by the court concerned.
6. Therefore, the petitioner filed a petition under Section 482 of the Code of Criminal Procedure before this court praying for an appropriate direction to the learned Magistrate to consider the bail application on the same day when he surrenders. By order dated October 19,2004 in Crl. M.C. No. 2714/2004 this court directed the petitioner to surrender before the court within 10 days from the date of the order. It was further directed that the application for bail that may be moved on behalf of the petitioner on his surrender, shall be considered by the learned Magistrate on the same day itself and appropriate orders thereon shall be passed in accordance with law keeping in view the decisions of this court in Sukumari v. State of Kerala 2001 (1) KLT 22 and Georgekutty v. State of Kerala 2004 (1) KIT S.N. Page 10.
7. The petitioner surrendered before the learned Magistrate on October 27, 2004 as directed by this court. According to the petitioner, the bail application which was moved on is behalf at 11 a.m., was taken up by the learned Magistrate at about 3.30 p.m. The application was adjourned to next day viz. October 28, 2004 and the petitioner was remanded to judicial custody.
8. This Criminal Miscellaneous Application filed under Section 482 of the Code was moved before this court on an urgent motion on October 28, 2004 at 1.45 p.m. In the application, the above developments which took place in the court on surrender of the petitioner were narrated, and it was prayed that an appropriate direction may be issued to the court below to release the petitioner on bail on such conditions as this court may deem fit and proper. However, as it transpired, petitioner was released by the learned Magistrate from custody later in the day on October 28, 2004 itself.
9. When this application came up for further consideration, the lower court records and the remarks of the learned Magistrate were; called for. In his remarks the learned Magistrate gave a brief history of the earlier proceedings in the case. He stated that he had passed orders on the bail application on October 27, 2004 itself as directed by this court in Crl. M.C. No. 2714/2004. But according to the Magistrate, the petitioner/accused was remanded to custody till October 28, 2004 since he was an "absconder". A copy of the order which was stated to have been passed by the learned Magistrate on October 27, 2004 was also forwarded along with his remarks.
10. It is relevant to note that the counsel who has moved the application for bail before the court below has placed on record her own affidavit before this Court. In the said affidavit, the learned Counsel who happens to be a senior and respected member of Palakkad Bar, has averred that the petitioner had surrendered before the learned Magistrate on October 27, 2004 as directed by this court and an application for bail was moved at 11 a.m. But the application was taken up only at about 3.30 p.m. After perusing the bail application and the order of this court, the learned Magistrate directed the counsel to place the two decisions referred to in the order of this court, before him. The learned Magistrate retired to his chamber at that stage informing that he had to attend some meeting. The counsel handed over photo copies of the two decisions to the Bench Clerk. Later in the evening, the counsel came to know that the petitioner/accused was remanded to judicial custody till the next day. The learned Counsel has further asserted in the affidavit that the learned Magistrate had not afforded any opportunity to be heard to the counsel. If only the learned Magistrate had perused the records, it would have been revealed that the petitioner/accused was never served with summons in the case.
11. I have carefully perused the lower court records and considered the remarks and the order which was stated to have been passed by the learned Magistrate on October 27, 2004. As rightly pointed out by the learned Counsel for the petitioner, there is not even a reference to the order passed by this court in the Crl.M.C. directing the learned Magistrate to consider the dictum laid down by this court in Sukumari v. State of Kerala 2001 (1) KLT SC Page 10. In the order passed by this court, it was observed that there was no reason "why the learned Magistrate shall not follow the directions issued by this court in the two decisions cited supra in matters like this". It was therefore only appropriate that the learned Magistrate ought to have considered the question whether this was a fit case where the petitioner was entitled to be released on bail on his surrender. In the order passed by the learned Magistrate, it is seen stated thus:
Summons shows that it is served through his family member, further accused is released on bail during crime stage which itself shows that the accused was aware of the proceedings before this court. Therefore NBW and steps under Sections 82 and 83 of Cr.P.C. issued but accused not turn up...the accused surrendered today. The accused being an absconder i.e. it is not necessary that a person should have run away from his house, it is sufficient if he hide himself to evade the process of law as has been decided in a case reported in 1993 (2) KLT SN 27, so, application not allowed and he being a absconding person remanded till 28-10-2004.
12. The lower-court records show that the petitioner was granted bail by the police. It is true that he had not appeared before the court at the crime stage. The court had issued at Chandrapur in Maharashtra. Curiously, there is some scribbling on the reverse of the summons allegedly made by a police constable to the effect that copy of the summons was handed over to the brother of the petitioner/accused since he could not be found. There is another date under that endorsement. Thereafter, the court had issued non-bailable warrant to the petitioner on four occasions in his Maharashtra address. In the meanwhile, proclamation under Section 87 of the Code is also seen to have been issued. In this proclamation also the Maharashtra address is shown. Obviously, none of the non-bailable warrants could be executed since the police did not make any attempt to go to Maharashtra and execute it. Of course, there is an endorsement on one of the warrants that it was not executed since "presidency passport" could not be obtained.
13. The petitioner has a specific contention that he was not served with any summons from the court. Immediately when he came to know about the pendency of a non-bailable warrant against him, he had approached this court. It has also been contended by him that the endorsement on the summons that a copy thereof was served on his brother cannot be true at all, since he does not have a brother.
14. The above contention appears to be correct. As mentioned earlier, the summons was issued in the Maharashtra address of the petitioner. The endorsement is seen made by a constable attached to Kasba Police Station. There is no clue as to how "the brother" of the petitioner was served and at what address was it served. It is, thus, obvious that the endorsement made by the police constable on the summons cannot be relied upon. Any how, the learned Magistrate has proceeded as though the petitioner had failed too appear even after service of summons and issuance of non-bailable warrants against him repeatedly. It is thus that the learned Magistrate had come to the conclusion that the petitioner was "an absconder". Less said the better about this curious conclusion made by the learned Magistrate. If only the learned Magistrate had taken the "trouble" to peruse the records, it would have been revealed that the petitioner was not served with any summons in the case. At least, the learned Magistrate should have shown the propriety or courtesy to hear the learned Counsel for the petitioner when the application for bail was moved. Obviously, the learned Magistrate had passed the order in his chamber even without bothering to hear the learned Counsel. In my view, the procedure followed by the learned Magistrate was highly unsatisfactory and improper.
15. There is yet another aspect of the matter. The lower court records show that the learned Magistrate had initiated proceedings against the two sureties who had executed bond at the police station to release the petitioner on bail. On their appearance the learned Magistrate had noticed that the bonds executed by the sureties were not proper. Therefore, the sureties were discharged.
16. I have dealt with the above aspects of the case rather elaborately only to comment upon the practice that is being followed by some of the Magistrate in cases where the accused have surrendered in response to either summons or during the pendency of non-bailable warrants issued against them. In several cases it has come to the notice of this court that some of the Magistrates have made it a practice to remand the accused to custody for a day when they surrendered even if the offences alleged against them are bailable. It may be noticed that the petitioner in this case is also charged with only bailable offences (Sections 279, 337 and 338 IPC). Of course, in appropriate cases the courts must ensure that the accused persons who wilfully disobey the directions or orders of the court are appropriately dealt with. There may be occasions when due to no fault of the accused, he may be prevented from appearing before the court. There may also be circumstances when the court might have issued non-bailable warrant against the accused due to no fault or failure on his part, or there may be instances where the accused was never served with summons in the case at all. I have only referred to some circumstances which may not be illustrative but exhaustive.
17. It must always be remembered that personal liberty is a very valuable right guaranteed to every citizen of this country under the Constitution. Remanding the accused to custody pending trial in a very casual manner cannot be justified at all. Anybody can get involved in a criminal case unwittingly in connection with road accident due to reasons or circumstances beyond his control. The position of such an accused will be more vulnerable if he gets involved in such a case away from his village or home town. It may be remembered that the petitioner and his family got involved in the road accident in Palakkad district while they were on their way to Maharashtra. It is also on record that the petitioner and his family had shifted their residence from Maharashtra to Thrissur later. It is further revealed that petitioner's Maharashtra address was shown in the police and court records. Evidently, the learned Magistrate had not bothered to comply with the direction issued by this court or even peruse the case records. Such a conduct on the part of a judicial officer is highly unbecoming of the position that he is occupying. He ought to have exercised care and circumspection while passing orders on the bail application, particularly since there was clear indication in the order of this court to follow the guidelines contained in the two decisions rendered in similar cases. The very fact that the learned Magistrate has not referred to the order passed by this court clearly indicates the casual and disrespectful approach made by him while considering the bail application.
18. As mentioned earlier, criminal courts should always be careful while passing orders on bail applications which in effect deal with personal liberty. In cases where the court decides to sent an accused to custody pending trial, it must be ensured that the court applied its mind judicially and judiciously with particular reference to the facts and circumstances of the case. The mere fact that the accused had failed to respond to a summons or that the court had to issue non-bailable warrant to compel his presence will not ipso facto empower the criminal court to remand the accused to custody as a punitive measure when he appears before the court on his own volition or is produced in execution of the warrant. The bail application that may be moved on his behalf has to be considered and orders should be passed on the same day itself since personal liberty of an accused cannot be curtained in a whimsical or disdainful manner.
19. The above observations have been made to alert the subordinate courts to ensure that the accused in criminal cases are not condemned to custody as a matter of course without a proper application of mind. Judicial process has to be blended and tempered with humaneness. Personal liberty guaranteed to every citizen has to be respected.
20. As far as this application is concerned it is closed since no further orders are necessary at this stage. A copy of this order shall be communicated to the learned Magistrate through the learned Sessions Judge concerned. The lower court records shall be transmitted by the Registry to the court concerned forthwith.