Madras High Court
P-1 D.Thiagarajan vs R-1 State on 13 March, 2014
Author: P.Devadass
Bench: P.Devadass
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13/03/2014 CORAM THE HON'BLE MR.JUSTICE P.DEVADASS P-1 D.THIAGARAJAN, 72 YRS, S/O.K.S.DURAISWAMY, 290 PAPER MILLS ROAD, PERAMBUR CHENNAI 600 011 VS R-1 STATE REP.BY THE REVENUE DIVISIONAL OFFICER, TIRUVANNAMALAI R-2 STATE REP.BY INSPECTOR OF POLICE, TIRUVANNAMALAI TOWN PS., TIRUVANNAMALAI ORDER
CRL.OP.No.5436 of 2014 P.DEVADASS, J., Petition for anticipatory bail in PRC No.33 of 2010 for offence under Section 302 r/w. 34 of IPC, pending on the file of the learned Judicial Magistrate No-I, Thiruvannamalai.
2. According to the learned counsel for the petitioner, the case is coming up for committal. There is apprehension that referring to Section 209(b) Cr.P.C the Committal Magistrate may remand the petitioner to custody, thus, the petitioner seeks anticipatory bail. In support of his submissions, the learned counsel for the petitioner cited several decisions.
3. According to the learned Government Advocate (Crl. Side), petitioner is involved in a Sessions case. Serious allegations are made against him.
4. I have anxiously considered the rival submissions. Perused the materials on record and the decisions cited.
5. There is 'police case" and 'private case'. A police case is instituted on a police (Final) Report under Section 173 Cr.P.C. A private case is instituted upon a complaint (see Section 200 Cr.P.C). In both the cases, after cognizance (see Section 190 Cr.P.C.) summons are issued to the accused, if he is not in custody (See Section 204 Cr.P.C.).
6. In either type of case, there may be cases involving offences exclusively triable by a Court of Sessions. A Sessions Court has no original jurisdiction, unless the case is committed to it by the Magistrate (See Section 193 Cr.P.C.). There are exceptions to this general principle. Cases under POTA, TADA and defamation cases filed by the public servants are examples of them.
7. Principles of Natural Justice also has been imported to the Code of Criminal Procedure. Copies of documents proposed to be relied on as against the accused during trial have to be furnished to him, if it is a police case, under Section 207 of Cr.P.C and if it is a private case, under Section 208 Cr.P.C. Only after such compliance, both type of Sessions cases have to be committed to the Court of Sessions under Section 209 Cr.P.C.
8. Section 209 Cr.P.C reads as under:
209. Commitment of case to Court of Session when offence is triable exclusively by it. - When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall -
[(a) Commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;]
(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial.
(c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session. (emphasis supplied by us)
9. As per Section 209 Cr.P.C it must 'appear' to the Magistrate that there is an offence exclusively triable by a Court of Sessions. Then, he has to commit the case to the Court of Sessions.
10. In the matter of committal to the Court of Sessions, there is a major distinction between the New Code of 1973 and the Old Code of 1898. Under the Old Code, the Magistrate conducts a preliminary enquiry and ultimately if there is no offence exclusively triable by a Court of Sessions, he can discharge the accused from the case. But, if it discloses an offence exclusively triable by a Court of Sessions, the Magistrate has to forward the accused to the Court of Sessions to stand for trial. But, under the New Code, if it appears to the Magistrate there is an offence exclusively triable by a Court of Sessions, he shall commit the case to the Court of Sessions (See Section 209(a) Cr.P.C.). Thus, under the Old Code, he forwards the accused but under the New Code, he forwards the case.
11. When it does not disclose an offence exclusively triable by a Court of Sessions the Magistrate has no jurisdiction or occasion to commit the case to the Court of Sessions. Even during enquiry, or trial relating to some other offence, if it appears to the Magistrate there is an offence exclusively triable by a Court of Sessions, the learned Magistrate has to commit the case to the Court of Sessions under Section 209 Cr.P.C (See Section 323 Cr.P.C.).
12. Under the Old Code, since the accused has been forwarded to the Court of Sessions there is no provision as regards bail. But, in the New Code, since the case is being committed to the Court of Sessions there is provision relating to bail (See Section 209(b) Cr.P.C). According to Section 209(b) Cr.P.C the committal of the case is "subject to the provisions of the Code relating to bail and remand the accused to custody during and until the conclusion of the trial". This general provision is applicable to both type of Session cases, whether instituted on a police report or upon a private complaint.
13. In the Sessions Court in fit cases, during the investigation stage, Sessions Court grants bails to the accused. When after completion of investigation, Final Report is filed by the Investigation Officer under Section 173 Cr.P.C., and the case is ripe for committal because of Section 209 (b) Cr.P.C question arises as to whether the accused has to be committed to custody, whether accused who is on bail, again shall seek fresh bail also called 'committal bail'. There are many occasions even prior to the committal, the accused may be on bail. Whether before committal of the case, the accused has to obtain bail from the Sessions Court or from this Court looms large here.
14. In Kewal Krishnan V. Suraj Bhan, (AIR 1980 S.C.1780) in view of Section 209(b) Cr.P.C question arose whether while committing the case to the Court of Sessions bail already granted to the accused has to be cancelled.
The Hon'ble Apex Court answered as under:-
S.209 of the Code of 1973 dispenses with inquiry preliminary to commitment in cases triable exclusively by a Court of Session, irrespective of whether such a case is instituted on a criminal complaint or a police report. If the committing Magistrate thinks that it is not necessary to commit the accused, who may be on bail to custody, he may not cancel the bail. This has been made clear by the words, 'subject to the provisions of this Code relating to bail' occurring in Cl(b) of S.209. Therefore, if the accused is already on bail, his bail should not be arbitrarily cancelled."
15. In Subbiah @ Raju Gounder and others (1981 L.W. Crl. 356) when similar question arose before this Court a learned Single Judge referred to the phrase "subject to the provisions of this code relating to bail' appearing in S.209(b) Cr.P.C and SURAJBHAN (supra) and held that if the accused is already on bail, his bail should not be arbitrarily cancelled.
16. In (1) Thomas (2) Pal Pandi (3) Bairavamoorthy (4) Swami (1982 L.W. (Crl.) 88), with regard to Section 209(a) Cr.P.C, a learned Single Judge of this Court held that while committing the case to the Court of Sessions bail need not be cancelled instead the learned Magistrate shall bound over the accused to appear before the Court of Sessions.
17. In Free Legal Aid Committee Vs. State of Bihar (AIR 1982 S.C.1463), when similar question arose the Hon'ble Apex court held as under:-
"In cases triable by the Court of Session, the practice followed by the Magistrates is that when an accused is released on bail by the Magistrate, the bail is granted to him only during the pendency of the inquiry before the Magistrate, with the result that when the case is committed to the Court of Sessions he is re-arrested and brought before the Court of Session where he has to apply once again for fresh bail. This causes considerable inconvenience to the accused without any corresponding advantage so far as the administration of criminal justice is concerned. It would avoid hardship to an accused if the Magistrate, while releasing the accused on bail, requires execution of a bond with or without surety, as the case may be binding the accused not only to appear but also to appear when called upon in the Court of Session. A Magistrate should normally follow this procedure unless there are any particular reasons for not doing so.
18. In Annamalai and Others Vs. Inspector of C.B (CID), Velllore (1985 L.W.(Crl.) 334, it was held that when the accused in a preliminary Registered Case sought grant of bail in the event of committal of the case to the Court of Sessions, a learned Single Judge of this Court referred to AIR 1982 S.C 1463 and directed the learned Magistrate to release the accused on bail as and when the order of committal is made.
19. In NKKP RAJA Vs. STATE rep by D.S.P, CBCID, Coimbatore Unit ( (2010) 2 MLJ (Crl) 700), A8 on receipt of summons in PRC No.35 of 2009 appeared before the Committal Court. Subsequently, the case was posted for committal. At that stage he approached this Court for anticipatory bail. A learned Single Judge of this Court reviewed the entire case law governing the situation arising under Section 209(a) Cr.P.C, referred to the Constitution Bench decision of the Hon'ble Apex Court in Gurbaksh Singh Sibbia and others Vs. State of Punjab 1980(2) SCC 565 and held that even if the summon has been received from the committal Court the accused involved in a sessions case with reference to Section 209(b) Cr.P.C will have apprehension and this Court or Sessions Court if satisfied can grant anticipatory bail to him. In the said case the learned Judge directed the Magistrate to release the accused on bail and also bound over him to appear before the Sessions Court for trial.
20. This is the position with regard to a Sessions case instituted on a police report. Though same position is involved in a Sessions case instituted upon a private complaint but there is some difference. As regards committing of the case to the Court of Sessions there is no distinction as between both type of cases viz., police case and private Complaint case (See Section 209 Cr.P.C).
21. A private complaint case is filed under 200 Cr.P.C by a private individual or by a Government Official. If it is for a Sessions Offence, conducting of preliminary enquiry, namely, examining of all the witnesses is compulsory (See Section 202 Cr.P.C). Upon taking cognizance under Section 190(i)(a) Cr.P.C, the learned Magistrate issues summons to the accused (See Section 204 Cr.P.C). In such a case, there will be no arrest, no bail. There will be appearance of the accused in response to the summons issued by the Court. That is what exactly the situation before us. The case has reached the committal stage. At this juncture, the accused seeks anticipatory bail.
22. In this case, a complaint of custodial death has engaged the attention of the Government. The Government instituted statutory enquiry. Based on the enquiry report the Government passed orders directing filing of a complaint as against the petitioner and others. Accordingly, a complaint has been filed before the learned Judicial Magistrate-I, Thiruvannamalai complaining of commission of offence under Section 302 r/w. 34 IPC.
23. Though prior enquiry has been conducted by the Government Officials, complaint filed by a Government Official will also be a case coming under private complaint procedure (See Sections 200, 202 and 204 of Cr.P.C.).
24. In the meanwhile, two of the accused have passed away, Charges against them abated. When the occurrence took place petitioner was an Inspector of Police. By the time the complaint came to this level petitioner retired as a DSP. Now, he is 72 years old. According to the petitioner, in view of Section 209(a) Cr.P.C, when the case is coming up for committal, he apprehends arrest by court and he may be remanded to judicial custody. Thus, he seeks anticipatory bail.
25. As we have already seen that if summons were issued to the accused to appear in a Sessions case, and the case is coming up for committal, then there would be apprehension of arrest in the mind of the accused. In such circumstances, he can approach the Sessions Court or this Court and the Magistrate may be directed to ask the accused to execute a bond ensuring his appearance before the Court of Sessions.
26. Now, in this case, the accused is being proceeded with for a custodial death. He is the only person now, in existence. Others have gone to the other world and followed the deceased. The sole accused viz., the petitioner received the summons from the Committal Court. He is regularly attending the Court. He is an elderly man. He has fixed place of residence. He has roots in the society. In such circumstances, referring to Section 209(b) Cr.P.C, the learned Magistrate need not commit him to custody to stand for trial before the Court of Sessions.
27. In the circumstances, it is a fit case for grant of relief to the petitioner.
28 Ordered as under:-
(i) Learned Judicial Magistrate I, Thiruvannamalai is directed not to remand the accused to custody while committing the case in P.R.C.No.33 of 2010 to the Court of Sessions, Thiruvannamalai.
(ii)Petitioner shall appear before the said Magistrate within 15 days of receipt of a copy of this order.
(iii) The learned Magistrate shall release the petitioner on bail.
(iv) Petitioner shall execute a bond for Rs.10,000/- (Rupees Ten Thousand Only) with two sureties each for a like sum to the satisfaction of the said Magistrate;
(v) The learned Magistrate shall bound over the petitioner to appear before the Court of Sessions fixing a date for his appearance before the said Court.
(vi)The bail bond shall be in force till the disposal of the sessions case.
trp Copy to:-
1.The Sessions Judge, Thiruvannamalai
2.Judicial Magistrate No-I, Thiruvannamalai
3.The Revenue Divisional Officer, Thiruvannamalai
4.The Inspector of Police, Thiruvannamalai Town Police Station, Thiruvannamalai
5.Public Prosecutor, High Court, Madras