Kerala High Court
A.Jayaraj vs State Of Kerala on 10 July, 2009
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2207 of 2009()
1. A.JAYARAJ,(FORMERLY ACCOUNTS OFFICER AND
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.B.RAMAN PILLAI
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :10/07/2009
O R D E R
'C.R.'
THOMAS P JOSEPH, J
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Crl.R.P.No2207 of 2009
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Dated this 10th day of July 2009
ORDER
Short question arising for a decision is whether a subordinate criminal court could entertain a petition for bail by a person accused of a non bailable offence otherwise than under subclause (a) of the proviso to section 167(2) of the Code of Criminal Procedure (for short, "the Code")) after a superior court declined to grant bail to such accused on merit.
2. For alleged misappropriation of about Rs.50,00,000/- while working as accounts officer of the complainant, a company, petitioner was arrested by police in the course of investigation of crime No.92 of 2009 of Binanipuram Police Station. He preferred a petition before learned magistrate for bail. That petition was dismissed. Petitioner approached learned Sessions Judge requesting to invoke power under sec.439 of the Code. Learned Sessions Judge as per annexure-C, order dated 24-02-09 refused to grant bail observing that allegations against petitioner are serious, investigation is at the initial stage and that enormity of crime committed by petitioner is to be looked into. Learned Sessions Judge was satisfied after hearing counsel for petitioner and learned public prosecutor and perusing relevant records that prima facie case is made out against petitioner, observed that Crl.R.P.No.2207 of 2009 2 "I find that the petitioner cannot be granted bail during the investigation of the crime. It follows that this application is without any merit"
and dismissed the petition. Thereafter petitioner moved criminal M.P.No.1001 of 2009 before learned magistrate seeking bail. That petition was not opposed by learned Assistant Public Prosecutor as seen from annexure-D, order. Learned magistrate as per order, dated 02-03-2009 though observed that "there is every possibility of absconding"
granted bail to the petitioner subject to certain conditions. Petitioner filed Crl.M.P.No.1602 of 2009 before learned magistrate requesting that conditions imposed in the order granting bail may be lifted. That petition was dismissed as per annexure-E, order dated 25-04-2009. Petitioner approached learned Sessions Judge with a similar prayer in Crl.M.C.No.1023 of 2009 (on 28-05-2009). When that petition came for hearing before learned Sessions Judge it was noticed that learned magistrate granted bail overlooking annexure-C, order passed by learned Sessions Judge on 24-02-2009. Thereon, public prosecutor who was in charge of the case filed Crl.M.P.No.1338 of 2009 for cancellation of bail granted by learned magistrate, invoking Sec.439(2) of the Code. That petition along with Crl.M.P.No.1023 of 2009 was heard and disposed by a common order dated 18-06-2009. Learned Sessions Judge cancelled bail granted to the petitioner by learned Crl.R.P.No.2207 of 2009 3 magistrate. Cancellation of bail is under challenge in this revision.
3. Learned counsel for petitioner contented that there is no suppression of material fact in that counsel who had preferred the petition for bail on behalf of the petitioner before the learned magistrate was not informed about dismissal of the bail petition by learned Sessions Judge. It is contended by learned counsel that petitioner had no malafide intention to cover up the order of learned Sessions Judge refusing to grant bail as is clear from the fact that when learned magistrate refused to lift the conditions, petitioner moved learned Sessions Judge with the very same request concerning the order of learned magistrate granting bail. The further argument is that even in the affidavit of investigating officer supporting Crl.M.P.No.1831 of 2009 there is no allegation, even after expiry of three months after learned magistrate granted bail that petitioner ever attempted to violate any of the conditions of bail or to influence the witnesses. Learned counsel pointed out that the order granting bail by learned magistrate remained in force atleast for about three months, it was not challenged by the investigating officer and hence learned Sessions Judge was not correct in canceling bail atleast in the said circumstances. Learned counsel has placed reliance on the decision of the Supreme Court in Mohan Singh V. Union Territory (AIR 1978 SC 1095). Reliance is also placed on the decision of the Karnataka Crl.R.P.No.2207 of 2009 4 High Court in State of Karnataka V. Narayanappa (1992 CRI.L.J.225). Learned public Prosecutor would contend that learned magistrate has granted bail overlooking the finding of learned Sessions Judge that a prima facie case is made out and hence request for bail cannot be allowed. Reference is made to the observations made by learned Sessions Judge in Annexure-C, order dated 24-02-2009.
4. It is true that it is only when petitioner filed Crl.M.C.No.1023 of 2009 before learned Sessions Judge requesting to lift/modify the conditions imposed by learned magistrate while granting bail that public prosecutor chose to file Crl.M.P.No.1831 of 2009 for cancellation of bail. For exercise of power of Sessions Judge under Secs.439(2) of the Code for cancellation of bail, it does not require a motion by any of the parties concerned. That provision confers power on the High Court and the Sessions court to cancel the bail granted by a court subordinate to it. The Supreme Court has held in R.Rathinam V. The State and another (AIR 2000 SC 1851) that Superior court can cancel the bail granted by a subordinate court even in exercise of its Suo motu power. What is required is to bring to the notice of the High court or Sessions court, as the case may be about the illegality, irregularity or impropriety in the matter of grant of bail. Therefore, that a petition for cancellation of bail came from the public prosecutor only when petitioner moved learned Sessions Judge for Crl.R.P.No.2207 of 2009 5 lifting/modification of condition is of no consequence and did not affect power of learned Sessions Judge to interfere under Sec.439(2) of the Code if otherwise such a course was found necessary.
5. Fact remained that by annexure-C, order learned Sessions Judge refused to grant bail to the petitioner taking into account the nature of offence and enormity of the crime, alleged involvement of petitioner in that and as investigation was at the initial stage. There is an observation made by learned Sessions Judge that, "petitioner cannot be granted bail during the investigation of the crime".
Learned counsel has an argument that the said observation is only a passing observation. But when the petition for bail was subsequently filed before learned magistrate, certainly learned magistrate was bound by the order passed by learned Sessions Judge (annexure-C, order). It is not disputed that the fact of learned Sessions Judge refusing to grant bail as per annexure-C order was not brought to the notice of learned magistrate, whatever be the reason thereof. Purposeful or not, there is a suppression of material fact in that dismissal of the petition for bail by learned Sessions Judge which would and should have weighed with learned magistrate (in considering whether bail could be granted or not), was not brought to the notice of learned magistrate. Subordinate courts are bound to obey the orders Crl.R.P.No.2207 of 2009 6 passed by a superior court so far as such orders remained in force. That is a matter of propriety and judicial discipline. That principle applies in the matter of grant of bail also, though an order refusing bail by a court need not and may not operate as resjudicata on the same court. On proof of change of circumstances, the same court can consider a request for bail again. In Smt.Bimla Devi V. State of Bihar and others (1994 CRI.L.J.638) the magistrate granted bail inspite of its rejection on two earlier occasions by the High court. The Supreme court observed in para 2 of the judgment, "in view of the fact that the Judicial Magistrate at a later stage has himself cancelled the bail, it is not necessary for us to pass any order with regard to the petitioner's prayer for cancellation of bail but the disturbing feature of the case is that though two successive applications of the accused for grant of bail were rejected by the High Court yet the learned Magistrate granted provisional bail. The course adopted by the learned magistrate is not only contrary to the settled principles of judicial discipline and propriety but also contrary to the statutory provisions".
(emphasis supplied) Reference was made to an earlier decision of the supreme Court in Shahzad Hassan Khan V. Ishtiaq Hasan Khan (AIR 1987 SC 1613). There, Supreme court deprecated the practice of successive bail petitions being posted before different benches of the same High court. It was held that, Crl.R.P.No.2207 of 2009 7 "Where after three successive bail applications of an accused involved in a murder case were rejected by a particular Judge of the High court and subsequent application was also directed by another Judge sitting as vacation Judge to be placed before the former Judge who was afterwards available as vacation Judge, the latter should not have, on a subsequent date, to the passing of the order recalled his order and entertained the bail application and ordered the release of the accused in disregard of the prevailing practice of the High Court that subsequent bail application should be placed before the Judge who had disposed of the earlier application."
(emphasis supplied) These decisions indicate the judicial discipline and proprietary which the courts are expected to maintain.
6. I shall refer to the decisions relied on by learned counsel. Mohan Singh V. Union Territory (AIR 1978 1095) was a case where simultaneous bail petitions were moved before the learned Sessions Judge and the High court. Learned Sessions Judge granted bail without noticing that a similar petition was being considered by the High court. High court cancelled the bail granted by learned Sessions Judge. The Supreme court observed on the facts of the case that cancellation of bail by the High court was not required. That however was not a case where learned Sessions Judge had granted bail notwithstanding refusal of bail by the High Court. It is only that when learned Sessions Judge granted bail, another petition seeking Crl.R.P.No.2207 of 2009 8 the same relief was pending in the High court. Therefore, order of learned Sessions Judge did not involve a violation of discipline or propriety. The decision of Karnataka High Court in State of Karnataka V. Narayanappa (1992 CRI.L.J.225) also did not apply to the facts of the present case. There, learned Sessions Judge who had otherwise the power to grant anticipatory bail under Sec.438 of the Code did so but without adverting to the facts and circumstances of the case. That order remained in force for about two years. Attempt was made to cancel the order thereafter. The High Court observed that the order passed by learned Sessions Judge having remained in force for two years and the bail obtained by accused not shown to have been misused there was no necessity of the cancellation of the order. I must bear in mind, that also did not involve any illegality or violation of judicial discipline and propriety.
7. When the superior court has refused to grant bail to an accused on merrits of the case and that order remained in force, judicial discipline and propriety requires the subordinate criminal court not to entertain an application for bail from such accused unless the superior court has either permitted the accused to move again before the subordinate criminal court or, the case is one covered by the subclause (a) of the proviso to section 167(2) of the Code.
8. In this case learned magistrate though, without noticing the Crl.R.P.No.2207 of 2009 9 above order passed by the superior court refusing to grant bail on merit has granted bail. I also find from the order passed by learned Sessions Judge (Annexure C) that learned Sessions Judge had found that a prima facie case is made out against the petitioner and that the facts and circumstances of the case and the stage of investigation did not enable petitioner to get bail. Learned magistrate without making any reference to the existence or otherwise of a prima facie case against the petitioner, merely noticed that the Assistant public prosecutor has not opposed the grant of bail and allowed the petition ofcourse, imposing conditions so as to allay the apprehension of the Assistant public prosecutor that petitioner might abscond. It is seen from the order of learned magistrate that possibility of petitioner absconding was taken note of by learned magistrate also. It is in violation and contrary to the order passed by learned sessions Judge that learned magistrate has granted bail. That in my view is illegal, not to say irregular and in violation of judicial discipline and propriety. Learned Sessions Judge is justified in canceling the bail invoking power under section 439(2) of the Code.
9. Learned counsel requested that since this court is not interfering with the impugned order, petitioner may be given opportunity to file fresh petition for bail before learned Sessions Judge. I make it clear that notwithstanding the observations contained in the Crl.R.P.No.2207 of 2009 10 order dated 24-02-09, it will be open to the learned Sessions Judge to consider the request for bail if any application is made by petitioner in that court (after petitioner surrendered or is taken to custody) and pass appropriate orders in the light of the facts and circumstances of the case.
10. This court, on the administrative side has issued circular No.2/2009 dated 27-01-2009 to all the Sessions Judges as under:
" It has come to the notice of the High Court that in some cases Bail applications are filed simultaneously before the High Court and Sessions Courts. This may lead to contradictory decisions by two authorities and hence occurrence of such instances should be avoided.
To avoid this, the Sessions Judges in the State are directed to insist for inclusion of a statement in the Bail application as to whether any other Bail. Applications in the same matter is pending before any other Court or whether any other bail application in the same matter had been disposed of by any other Court. It is also clarified that non inclusion of such a statement in the Bail Application would only be treated as a curable defect.
All the Sessions Judges in the State are hereby directed to follow the instructions scrupulously."
There is no reason why the magistrates also should not do so while entertaining petitions for bail. It is only appropriate to avoid unpleasant situations of this nature and violation of judicial discipline and propriety that magistrates also ensured that in the petitions for bail filed before them, it is stated whether any petition for bail had Crl.R.P.No.2207 of 2009 11 been filed in that Court or any other court and if so, with what result. Registry of this court shall bring the matter to the notice of the Hon'ble the Chief Justice for necessary directions to the magistrates in the matter.
Revision petition is dismissed.
THOMAS P JOSEPH, JUDGE Sbna/