Kerala High Court
Sukumari vs State Of Kerala on 23 November, 2000
ORDER R. Rajendra Babu, J.
1. The common question arising for consideration in all these petitions is whether the petitioners, who are accused of committing offence under S. 55 of the Abkari Act and facing committal proceedings can be released on bail by the committing court. All these petitions were filed invoking S. 482 of the Code of Criminal Procedure (For short the Code) for issuing a direction to the committing court to release the petitioners on bail in the event of their surrender or appearance before the committing court. As the same question is involved in all the above cases, these petitions are considered and disposed of by this common order.
2. Petitioners are accused of the commission of offence under S.55 of the Abkari Act. The allegation was that they were found in possession or transporting or keeping arrack or wash or other contraband articles. In all the above cases, the detecting officers could not arrest the petitioners either because of the absence of the petitioners at the scene of occurrence or due to their escape from the scene seeing the arrival of Excise or Police Officials. The Investigating Agency filed the charge sheet before the committing court wherein the petitioners were reported as not on bail or as absconding and committal proceedings are pending against them. In some of the cases, summons has been issued and the petitioners have accepted the summons. In few cases, arrest warrants were issued against the petitioners at the first instance as they were reported to be absconding. In all the above cases, the petitioners apprehend the rejection of bail and detention in jail, in the event of their surrender or appearance before the committing court. It was alleged that the learned Magistrates are under the view that as the cases are exclusively triable by court of sessions, they are not competent to grant bail. Hence the main question for consideration is whether the committing court has jurisdiction to grant bail at the time of committal when the accused is alleged to have committed an offence under S. 55 of the Abkari Act.
3. Heard the learned counsel for the petitioners Sri. T.G. Rajendran, R.T. Pradeep, K. Satheesh Kumar, B. Mohanlal, C. Rajendran, G. Sudheer & Sunny Mathew and learned Public Prosecutor Sri. V.K. Mohanan & N. Sukumaran.
4. Investigating Agency filed the charge sheet against the petitioners alleging the commission of offence under S. 55 of the Abkari Act. Petitioners could not be arrested either due to their absence at the time of detention of the offence or due to the escape from the scene seeing the police or the excise officials. In some of the cases, it was mentioned in the charge sheet that the petitioners are absconding. In some of the cases, the petitioners received summons from the committing court but in few cases, arrest warrants are pending against them. Petitioners apprehend detention in jail in the event of their surrender as the committing courts are under the view that those courts do not have the jurisdiction to enlarge the petitioners or the accused in abkari offences on bail.
5. S. 209 of the Code deals with committal of cases exclusively triable before the court of sessions. S. 209 of the Code reads:
"Commitment of case to Court of Sessions 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 offence is triable exclusively by the Court of Sessions, he shall-
(a) commit, after complying with the provisions of S.207 or S.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 10 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.
S.209 of the Code would make it clear that if it appears to the Magistrate that the offence is triable exclusively by a court of sessions, and when the accused appears or produced, the Magistrate has to commit the case to the court of sessions. In the case of the accused being produced, the Magistrate has to remand the accused to the custody until such commitment has to be made or during and until the conclusion of the trial and that too subject to the provisions of the Code relating to bail. The Supreme Court in Kewal Krishnan v. Suraj Bhan & Anr. (AIR 1980 SC 1780) held that the committing Magistrate cannot cancel the bail when the accused is on bail. There it was held:
"S. 209 of the Code of 1973 dispenses with the inquiry preliminary to commitment in cases triable exclusively by a Court of Sessions, 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 bait 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 clause (b) of S.209. Therefore, if the accused is already on bail, his bail should not be arbitrarily cancelled".
When the accused appears in pursuance to a summons issued by the Court, and files an application for bail, he cannot be remanded without considering the bail application, as in the case where an accused is produced. There also it is subject to the provisions of the Code relating to the grant of bail. In Rajender Kumar Jain v. State Through Spl. Police Establishment & Ors. (AIR. 1980 SC 1510) the Supreme Court while considering the question whether the committing Magistrate was competent or empowered to allow a petition to withdraw the case under S. 321 Crl.P.C. held:
"It may not be accurate to say that the Committing Magistrate has no judicial function to perform under the 1973 Code of Criminal Procedure. The Magistrate has to be satisfied that an offence is prima facie disclosed and the offence so disclosed is triable exclusively by the Court of Sessions. If no offence is disclosed the Magistrate may refuse to take cognizance of the case or if the offence disclosed is one not triable exclusively by the Court of Session he may proceed to deal with it under other provisions of the Code. To that extent the Court of the Committing Magistrate does discharge a judicial function".
6. The above provision "subject to the provision of this Code relating to bail" in clause (a) & (b) of S. 437(1) would make it clear that the committal court is fully empowered to enlarge the accused on bail subject to the provisions regarding the grant of bail. Thus when a bail application is filed by an accused appearing in pursuance to a summons, the Magistrate has to pass a judicial order on the bail application, as he is discharging a judicial function while committing the case. When a judicial order has to be passed, the Magistrate has to apply his mind and pass an order and he is not expected to pass a mechanical order without going into the merits of the case, but has to pass an order in accordance with the law regarding the grant of bail. Thus a distinction has to be drawn between an accused who is "produced before Court" and "appears before Court", and the same standard of approach cannot be made in remanding the accused to the custody. In cases where the accused appears in pursuance to a summons the bail application has to be considered and disposed of in accordance with the law regarding the grant of bail.
7. S. 437 of the Code deals with grant of bail in the case of non-bailable offences. Sub-s. (1) of S. 437 reads:
"When bail may be taken in case of non-bailable offence:-
When any person accused of or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he, may be released on bull, but-
(i) such person shall not be so released if there appears reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence:
Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court".
8. The above provisions would reveal that a Magistrate is not empowered to grant bail in respect of offences punishable with death or imprisonment for life as per S. 437(1)(i) of the Code. Clause (ii) of sub-s. (1) also stipulates that bail shall not be granted to cases where the accused had been previously convicted for an offence punishable with death or imprisonment for life or imprisonment for seven years or more or had been previously convicted of two or more occasions for a non-bailable and cognizable offence. The provisos to the above sub-s. (1) would make it clear that the Court has the authority or is empowered to release an accused on bail apart from the restrictions imposed under clause (i) & (ii) if the accused is a person below the age of 16, or if the accused is a lady or if the accused is an insane or infirm person or if the Court is satisfied that it is just and proper to release on any other special reasons. Thus a very reading of the above provisions would suggest that S. 437 of the Code does not create an absolute bar on the Magistrate to the grant of bail to persons accused of a non-bailable offence or in respect of offences exclusively triable by a court of sessions. A discretion is left with the Magistrate to see whether there are reasonable grounds for believing that the accused has been guilty of the offence alleged against him. Thus the Magistrate has the discretion to judge the materials on record and grant bail even if the offence is a non-bailable one or exclusively triable by a court of sessions. This court had the occasion to consider the scope of S. 437 in granting bail to persons accused of cases triable by court of sessions. In Chellappan v. State of Kerala (1987 (1) KLT 435) this Court held that a Magistrate has jurisdiction to grant bail if the offence is not punishable with death or imprisonment for life in the alternative. This Court in Antony Cherian v. Purushothaman Pillai (1987 (2) KLT 125 held:
"The words in S. 437(1) shall be interpreted disjunctively, if it is said that the Magistrate has no jurisdiction to grant bail in a case involving offences punishable with imprisonment for life, the discretion conferred on a Magistrate by S. 437 will stand unnecessarily restricted. Such restriction may lead to a practical consequence that in all cases (whether instituted on complaint or on police report) in which offences punishable with imprisonment for life but triable by a Magistrate of the First Class are involved in the Magistrate cannot exercise jurisdiction in favour of granting bail. Usually or atleast in most of such cases Magistrates exercise discretion in favour of granting bail. Of course, where offences punishable with imprisonment for life and triable exclusively by Court of Sessions are involved Magistrates refrain from granting bail to accused persons in such cases. The restriction imposed on a Magistrate by the legislature is that when "there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life" such person shall not be released on bail by that Magistrate. "Appear reasonable ground for believing" is a situation which is far below the stage when you can say that prosecution has proved the offence beyond reasonable doubt."
The question whether the Magistrate of Judicial First Class can grant bail in respect of offences exclusively triable by court of sessions under the SC/ST (Prevention of Atrocities) Act had been considered by a Single Judge by this Court in Shanu v. State of Kerala (2000 (3) KLT 452) and held that the Judicial First Class Magistrate has jurisdiction to grant bail to persons accused of offence punishable under any of the sub-clause (1) to (XV) of sub-s. (1) of S. 3 of the above Act.
9. The learned counsel for the petitioners argued that the Magistrates were not granting bail in cases where the accused were alleged to have committed offences under S. 55 of the Abkari Act holding the view that a Single Bench of this Court in Soman v. Vasanthakumari (2000 (2) KLT 552) has held that a Magistrate is not competent to grant bail in abkari offences. On going through the judgment in Soman v. Vasanthakumari (2000 (2) KLT 552). I do not find any such view taken by the learned Judge. There was no finding that the Magistrate is not competent to grant bail in abkari offences. What was observed by the learned Judge was that there was no such finding by a Division Bench of this Court in Asokan v. State of Kerala (1998 (1) KLT 330) that the Judicial First Class Magistrate has got jurisdiction to grant bail in cases punishable with imprisonment for five years or more under the Abkari Act. There it was observed:
"Counsel for the petitioner has submitted that the above observation made by the Sessions Court is incorrect and the decision reported in Asokan v. State of Kerala (1998 (1) KLT 330) a Division Bench of this Court has held that the Judicial First Class Magistrate has got jurisdiction to grant bail for the offence punishable under the Abkari Act with imprisonment for three years or more. I find no observation in the judgment reported in 1998 (1) KLT 330 referred to above by the Division Bench of this Court to the effect that Judicial First Class Magistrate has got jurisdiction to grant bail in cases punishable with imprisonment for three years or more under the Abkari Act. Therefore the contention of the petitioner that the Judicial First Class Magistrate is competent to grant bail for the offence punishable under the Abkari Act with imprisonment for three years and more is not sustainable."
But the head note on the above decision is misleading and only on the basis of the head notes, such a view was taken by the committing courts. Hence the approach taken by the learned Magistrate that there was a finding in 2000(2) KLT 552 that the Magistrate did not have jurisdiction to grant bail for offences punishable with three years and more was wrong and the denial of bail on the basis of the above decision could not be justified.
10. Learned counsel for the petitioners placed reliance on a decision of this Court in Satyan v. State of Kerala (1981 KLT 606) wherein the question whether a Magistrate of First Class can grant bail in respect of an offences under S. 326 IPC, which is punishable with imprisonment for life had been considered by this Court. There it was held:
"So long as an offence under S. 326 is triable by a Magistrate of the First Class, there is no reason why it should be viewed differently in the matter of granting bail from an offence under S. 420 IPC, for which the punishment is a term of imprisonment. The learned Magistrate is not justified in holding that he had no power to grant bail to a person accused on the sole ground that the offence is punishable with imprisonment for life."
A Division Bench of this Court in Asokan v. State of Kerala (1998 (1) KLT 330) considered the constitutional validity of certain provisions of the Abkari Act. It was held that the above penal provisions under S. 55 as well as 8(1) and (2) of the Act are not ultra vires to the Constitution. It was further held the Ss. 41 & 41A of the Abkari Act are also constitutional and that the Criminal Court has to consider the bail application in accordance with the provisions contained under S. 41 and 41A of the Abkari Act read with S. 437 of the Code, and the attending circumstances of each individual cases and the bail application cannot be dismissed merely because that the Public Prosecutor opposes it.
In para 25 of the above judgment, it was held:
"According to the petitioners, the conditions imposed for granting bail are most stringent and that no person would be entitled to gel bail. It was contended that in view of the amended S. 41 if a person is accused of an offence or is suspected to have committed an offence which is punishable for three years or more, he will not be granted bail under the Act. This does not appear to be correct. If we read Ss. 41 and 41A together, it is clear that there is no basis for such assumption. The offences which are punishable for a term of less than three years are bailable and those which are punishable for three years or more are not bailable. So far as the offences which are punishable for less than three years are concerned, there is no difficulty and S. 41 itself says that they shall be released on bail. It is true that the last sentence in S. 41 gives an impression that if the accused person is guilty of an offence punishable with imprisonment which may extend to three years or more, he shall not be released on bail. But both the Ss.41 and 41A are to be read together and harmonious construction is required to be given. As per S. 41A, bail can be granted by the court, but before granting bail, the court is required to hear the Public Prosecutor and it shall release the accused on bait provided there are reasonable grounds for believing that he is not guilty of such offences and further that he is not likely to commit any offence while continuing on bail. Sub-s.(2) of S.41A is specific that the limitations imposed under clause (b) of sub-s.(1) are in addition to the limitations provided under the Code of Criminal Procedure, 1973 or any other law for the time being in force."
In para 31 of the Order it was further held:
"We do not find any merit in the various contentions advanced by the petitioners challenging the validity of S. 41 and 41A of the amendment Act. They are constitutionally valid. The Criminal Court has to consider the bait application in advance with the provisions contained in Ss. 41 and 41A read with S. 437 of the Code of Criminal Procedure and the attending circumstances of each individual case. The bail application is not to be dismissed merely because the Public Prosecutor opposes it".
The above decision would reveal that both S. 41 and 41A have to be read together. If that be so, the rigour imposed under S. 41A would be more in respect of persons arrested and produced alleging the commission of the offence under the Abkari Act. But a distinction has to be drawn in respect of cases pending investigation at the crime stage and cases pending committal proceedings after the filing of the charge-sheet or final report. The same rigour may not be there when the investigation of the case has been completed and a charge has been laid before the court without arresting the accused. When a person is arrested and produced before court alleging the commission of an offence under the Abkari Act, the Court has to consider the bail application on the basis of S. 41 as well as S. 41A of the Abkari Act. When the accused was not arrested and a charge sheet had been laid before the court for committal to the Sessions Court, the Magistrate is fully competent to grant bail in view of S. 209 Cr.P.C. and subject to the provisions regarding the grant of bail under the Code and also subject to the restrictions imposed under S. 41A of the Abkari Act. S. 437 of the Code empowers the Magistrate to grant bail to an accused alleged to have committed of non-bailable offences including cases which are exclusively triable by a court of sessions. In such cases, the Court has to consider the bail application on merits. The proviso to sub-s. 1 of S. 437 of the Code empowers the Magistrate the grant of bail in certain circumstances. There may be cases when the accused was not arrested and could not execute any bail bond even though anticipatory bail had been granted to him, by competent court. It is settled law that when the accused is on bail, the committal court cannot refuse bail and remand the accused to judicial custody but he has to be released on bail. When an order for anticipatory bail had been issued from the competent court and the accused was not arrested and he could not execute the bond, it was a special circumstance which the committal court has to consider in granting bail instead of remanding him to the jail as the competent court did not intend the remand of the accused to judicial custody. There may be similar other circumstances. Likewise, the court has to consider the circumstance where the petitioners' request for anticipatory bail had been rejected by this court at the crime stage. When a person was suffering from acute illness and the detention in jail would be detrimental even to his life that may be a special circumstance. A Magistrate considering the bail application in such circumstances, has to give due regard to the above circumstances and apply his mind before refusing bail. A mechanical uniform order rejecting the bail application without applying the judicial mind cannot be termed as a judicial order. When a judicial order is to be passed, the court has to apply its mind to the facts and circumstances of each case, considering the nature and gravity of the offence also. Such an application of mind should be there in each and every case. In view of the provisions under the Code, the committing court is fully competent to grant bail to those persons who are alleged to have committed offences under S. 55 of the Abkari Act and those who are not arrested and are not on bail. In fact the non arrest of the petitioner during the crime stage and till the charge had been laid before the Court, itself can be one of the plus points in favour of granting bail, along with other circumstances. The appearance before the Court immediately after the receipt of the summons and the acceptance of summons shortly after the issue from the court are circumstances not in support of prosecution allegation that the accused was absconding. In Charanswamy & Anr. v. C.B.I (1997 SCC Crl. 14) the Supreme Court held that the paramount consideration has to be whether the enlarge on bail would jeoparadise the prosecution case. When the case does not come whether Clause (i) or (ii) of sub-s. 1 of S. 437 of the Code, the Magistrate has to consider the application for bail on merits and in accordance with S. 437(1) of the Code and S. 41A of the Abkari Act. But when applying S. 41A the rigour would be different when the accused is arrested and produced at the crime stage. A consideration of the entire circumstances would reveal that the committal court has to consider the bail application in accordance with the merits of the case and it cannot be rejected on the ground of lack of jurisdiction and the court is fully empowered to consider the bail application and to grant bail in appropriate cases.
The petitioner in Crl.M.C. 5232 of 2000, are accused Nos. 2 and 3 in CP 55/2000 pending before the Judicial First Class Magistrate's Court-II, Neyyattinkara and they are alleged to have committed offences under Ss. 55(b) and (g) of the Abkari Act. In the above case, the petitioners were alleged to have escaped from the scene seeing the police and wash and arrack had been seized and the first accused was arrested from the scene. Petitioners received summons and they filed an application for lime and it was dismissed holding that the above Court had no jurisdiction to grant bail in view of the decision of this Court in 2000 (2) KLT 552.
Petitioner in Crl.M.C. No.5254/2000 is the accused in C.P. 128/2000 pending before the JFCM Court-II, Neyyattinkara. He was alleged to have committed offence under S. 55(a) of the Abkari Act for keeping in his possession 5 litres of arrack and escaped from the scene seeing the police. He filed an application for time on receipt of the summons and it was dismissed and an arrest warrant was issued against him. Petitioner in Crl.M.C. 5261 of 2000 is alleged to have committed offences under Ss.55(1)and 8(1) of the Abkari Act and the matter is pending before the Judicial First Class Magistrate's Court-II, Neyyattinkara as C.P. 263/2000. The Thirupuram Excise Officials seized 105 litres of arrack from a shed and thereafter registered a case against the petitioner and he was not arrested.
In Crl.M.C. 5274/2000, the petitioner was alleged to have committed an offence under S. 55(a) of the Abkari Act for keeping in his possession arrack in 36 plastic covers each cover containing 100 ml. in C.P. 108/2000 pending before the Judicial First Class Magistrate's Court-II, Kollam. It was alleged that the petitioner escaped from the scene seeing the police and a summons was served on him. Thereafter he filed an application for time and it was rejected and an arrest warrant had been issued.
In Crl.M.C. No. 5275 of 2000, the petitioner was alleged to have committed an offence under S. 55(a) of the Abkari Act in C.P. 108/2000 pending before the Judicial First Class Magistrate's Court-II, Kollam. He is alleged to have kept arrack in 7 plastic covers, each cover containing 100 ml. and of arrack, escaped from the scene seeing the police and summons had been served on him and he filed an application for time and the same was rejected and non-bailable arrest warrant was pending against him.
Petitioners in Crl.M.C. 5354/2000 are the accused Nos. 3, 5 and 6 in CP.7/98 pending before the Judicial First Class Magistrate's Court, Kozhikode. Accused Nos. 1 and 2 were found transporting a large quantity of Indian made foreign liquor and they were apprehended and the contraband were seized. A1 & A2 disclosed that the foreign liquor was being transported at the instance of accused Nos. 3 to 6 and accordingly they were also arrayed as accused alleging the commission of an offence under S. 55(a) of the Abkari Act. They received summons and their application for excusing their absence was dismissed and arrest warrant had been issued against them.
Petitioner in Crl.M.C. 5458 of 2000 is accused in CP 224/2000 pending before the Judicial First Class Magistrate's Court-I. Punalur. Her husband was found dealing on arrack and seeing the police he ran off. Police recovered 1.5 litres of arrack and the petitioner also was made an accused alleging the commission of offence under Ss.55(a) & (i) of the Abkari Act.
In Crl.M.C. 5487 of 2000, the petitioner is alleged to have committed an offence under S. 55(a) of the Abkari Act for being found in possession of 2.5 litres of arrack and escaped from the scene seeing the police. She is the accused in C.P. 246/2000 pending before the Judicial First Class Magistrate's Court-III, Neyyattinkara.
Crl.M.C. 5518 of 2000 was filed by the accused in CP 167/2000 pending before the Judicial First Class Magistrate's Court II, Nedumangad. The petitioner is alleged to have committed offences under Ss. 55(a) and (b) of the Abkari Act for keeping 5 litres of arrack and escaped from the scene seeing the police.
The petitioner in Crl.M.C. 5541 of 2000, is the second accused in CP. 62/2000 pending before the Judicial First Class Magistrate's Court-II, Neyyattinkara. He is alleged to have committed an offence under S. 55(a) of the Abkari Act. He received summons from the committal court and filed an application for time and it was allowed.
Petitioners in Crl.M.C. No. 5543 of 2000 are accused in C.P. 97/2000 pending before the Judicial First Class Magistrate's Court-III, Neyyattinkara. They are husband and wife and are alleged to have escaped from the scene seeing the police. The police recovered 12.5 litres of arrack and utensils for distillation. The petitioners received summons from the Court.
The petitioners in Crl.M.C. 5545 of 2000 are the accused in C.P 158/2000 pending before the Judicial First Class Magistrate's Court-II, Neyyattinkara. The petitioners are ladies and they were alleged to have committed an offence under S. 55(1) of the Abkari Act for keeping 5 litres of arrack and they were alleged to have escaped from the scene seeing the police party.
Petitioner in Crl.M.C. 5594 of 2000 is the 4th accused in C.P. 25/2000 pending before the Judicial First Class Magistrate's Court-I, Neyyattinkara. The four accused were alleged to have committed offences under Ss. 55(a), (b), (g) and (f) of the Abkari Act and all of them, who were engaged in the distillation ran off from the scene seeing the police.
In all the above cases, the petitioners apprehend detention in jail in the event of their surrender or appearance before the committing court and hence they approached this Court invoking S. 482 for issuing a direction to the committing Court to release them on bail. The committing court has to consider each and every application for bail on merit and pass orders in accordance with law and as stated above, in the event of the petitioners filing applications for bail. Hence I do not think it necessary to issue any directions to the Court below as prayed for. These petitions are liable to be dismissed without prejudice to their right to approach the committing court for bail.
All the above Crl.M.Cs. are dismissed without prejudice to their right to file necessary bail applications before the committing courts.