Andhra Pradesh High Court - Amravati
Pallapati Malyadri, vs State Of Andhra Pradesh on 30 November, 2022
Author: K Sreenivasa Reddy
Bench: K Sreenivasa Reddy
THE HONOURABLE SRI JUSTICE K. SREENIVASA
REDDY
CRIMINAL PETITION NO.978 OF 2021
ORDER :
The moot question that crops up for consideration of this Court in this Criminal Petition is whether the Magistrate granting bail under Section 436 of the Code of Criminal Procedure, 1973 (for short, 'CrPC'), is empowered to cancel the bail under Section 437 (5) CrPC on the ground that the police altered Section of law from Section 324 read with of the Indian Penal Code, 1860 (for short, 'IPC') to Section 324, 307 read with 34 IPC.
2. Petitioners herein are accused in crime No.277 of 2020 of Kanigiri police station. Originally, the case was registered against the petitioners for the offence punishable under Section 324 read with 34 IPC on the allegation that there were longstanding disputes between the petitioners and the defacto complainant and others 2 in respect of partition of lands, and on the date of the incident i.e. on 07.10.2020, at about 9.00 AM, when the petitioners were ploughing the land, which is in dispute, the defacto complainant and others questioned them not to plough the land, and in respect of that, a wordy quarrel took place; then, 2nd petitioner beat defacto complainant with an axe on head and beat one Pallapati Suryanarayana with an axe on right hand palm and head; 1st petitioner beat defacto complainant with handle stick of axe on head, and thereafter, both the injured were shifted to Kanigiri hospital. It is pertinent to mention here that the petitioners too got registered a case as against the defacto complainant and others in crime No.278 of 2000 for the offence punishable under Section 324 read with 34 IPC, and during the course of investigation, police altered the Section of law to 147, 148, 324, 307 read with 34 IPC.
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3. In the subject case viz. crime No.277 of 2020, the petitioners surrendered before the learned Judicial Magistrate of First Class, Kanigiri and they were enlarged on bail on execution of a personal bond for Rs.25,000/- each, with two sureties for the like sum. After alteration of Section of law, the State filed a petition in Crl.M.P.No.1099 of 2020 under Section 437 (5) CrPC seeking to cancel bail granted to the petitioners, and the learned Magistrate allowed the petition, vide the impugned Order dated 28.12.2020, cancelling the bail granted to the petitioners and directing them to surrender before the Court on or before 05.01.2020. Aggrieved by the same, the present Criminal Petition came to be filed.
4. Section 436 CrPC deals with 'in what cases bail to be taken'. Section 436 (1) CrPC reads thus:
"(1) When any person other than a person accused of a non-bailable offence is arrested or detained 4 without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail.."
A plain reading of the aforesaid provision goes to show that when a person is accused of a bailable offence is arrested or appears or is brought before a Court, such person shall be released on bail on his executing a bond.
5. Section 437 CrPC deals with 'When bail may be taken in case of non-bailable offence'. Section 437 (5) CrPC reads thus:
"Any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody."
The abovesaid provision goes to that when the Court releases a person on bail under sub-section (1) or 5 sub-section (2) of Section 437 CrPC, at a later stage, comes to conclusion that it is necessary so to do, direct that such person be arrested and commit him to custody.
6. It is relevant to mention here that the reliefs under Section 437 (1) and (2) CrPC are discretionary ones, in connection with grant of a bail in a non-bailable offence. On a reading of the entire procedure contemplated under Sections 436 and 437 (5) CrPC, it is apparent that once the Magistrate releases an accused on bail under Section 436 CrPC, the Magistrate is not empowered to cancel bail on the ground that police altered Section of law to a non-bailable offence. In the new procedure Code, a specific provision is there viz. Section 439 (2) CrPC, authorizing the High Court or Court of Session to direct arrest of a person who had been released on bail and to commit him to custody. In 6 view of the said specific provision, an application can be moved in accordance with law.
7. Learned counsel for the petitioners relied on a decision in Madhab Chandra Jena and another v. State of Orissa1, wherein the Orissa High Court held thus:
(paragraphs 4 and 9).
"4. The petitioners had been granted bail under Section 436, of the Criminal Procedure Code under which section admission into bail is as of right. The section itself does not make any provision for cancellation of bail. A benefit to which one is entitled as of right cannot be taken away without an express sanction of the law. There being no such provision under section 436 Cr.P.C., such a power cannot be conceded to the Magistrate on a plain reading of the section. The only provision for cancellation of bail is found in Section 437 (5) where the court which has released a person accused of a non-bailable offences on bail is authorized, if it considers necessary so to do, to direct that the person be re-arrested and be committed to custody.
1 1986 SCC OnLine Ori 144 7 The provision, being in respect of non-bailable offences, cannot be invoked in respect of bailable ones.
9. Even though it was held in Batilal Bhanji's case (AIR 1967 SC 1639), that where circumstance justifies, the bail granted in bailable offences may be cancelled by the High Court in its inherent powers, yet under the new Code, specific provision has been made under Section 439 (2), Criminal Procedure Code, authorizing the High Court or the Court of Session to direct arrest of a person who had been released on bail and to commit him to custody. In view of such specific provision, an application can now be moved either before the Sessions Court or the High Court to cancel the bail irrespective of the fact whether the offence is bailable or non-bailable. We are supported this view by the Patna High Court in Janardan Yadav v. State of Bihar (1978 C.L.J. 1318)."
8. In the case on hand, the learned Magistrate has erroneously passed the order in an application filed under Section 437 (5) CrPC, cancelling the bail granted to the petitioners, despite the fact that he himself 8 granted the bail under Section 436 CrPC to them. It is axiomatic that the provision under Section 437 (5) CrPC, which is in respect of non-bailable offence, cannot be invoked in respect of a bailable offence which is under Section 436 CrPC. When such is the law, the learned Magistrate has erred in entertaining the petition filed under Section 437 (5) CrPC. Learned counsel for respondents, on the other hand, did not dispute about the position of law.
9. In view of the foregoing circumstances, the impugned order 28.12.2020 passed in Crl.M.P. No.1099 of 2020 by the learned Judicial Magistrate of First Class, Kanigiri, in crime No.277 of 2020 of Kanigiri police station, is set aside.
10. It is stated that investigation is completed in the aforesaid crime and charge sheet is filed. The petitioners are directed to surrender before the learned Magistrate within a period of two weeks from the date of 9 receipt of a copy of this Order, and on such surrender, the learned Magistrate shall enlarge them on bail on each of them executing a personal bond for a sum of Rs.10,000/- with two sureties for the like sum, to the satisfaction of the learned Magistrate.
11. The Criminal Petition is, accordingly, allowed. Miscellaneous Petitions, if any, pending shall stand closed.
___________________________________ JUSTICE K. SREENIVASA REDDY 30.11.2022 DRK 10 THE HONOURABLE SRI JUSTICE K. SREENIVASA REDDY CRIMINAL PETITION NO.978 OF 2021 30.11.2022 DRK