Kerala High Court
Seema vs Av. Viswanathan
Author: B.Kemal Pasha
Bench: B.Kemal Pasha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
WEDNESDAY, THE 3RD DAY OF FEBRUARY 2016/14TH MAGHA, 1937
Crl.MC.No. 6214 of 2015 ()
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IN CRRP 109/2014 of D.C. & SESSIONS COURT, ERNAKULAM
IN CC 605/2010 of JUDL.M.F.C.-I,ERNAKULAM
CRIME NO. 949/2007 OF ERNAKULAM NORTH POLICE STATION , ERNAKULAM
PETITIONER(S)/DEFACTO COMPLAINANT:
SEEMA,
AGED 38 YEARS, S/O SIVAN,
EASWRAMANGALAM HOUSE, H.NO.30/167,
VARIAM LANE, POOMKUNNAM P.O., THRISSUR TALUK,
THRISSUR DISTRICT.
BY ADV. SRI.RAJIT
RESPONDENT(S)/ACCUSED AND STATE:
1. AV. VISWANATHAN,
AGED 73 YEARS, S/O VELAYUDHAN, ANDICOT HOUSE, PONOTH ROAD,
KALOOR, KOCHI-682 017.
2. ARUN ANDICOT,
AGED 42 YEARS, S/O VISWANATHAN, ANDICOT HOUSE, PONOTH ROAD,
KALOOR, KOCHI-682 017.
3. AMMINI VISWANATHAN,
AGED 69 YEARS, W/O VISWANATHAN, ANDICOT HOUSE, PONOTH ROAD,
KALOOR, KOCHI-682 017.
4. STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.
R1-R3 BY ADV. SRI.C.P.UDAYABHANU
BY PUBLIC PROSECUTOR SMT.SAREENA GEORGE P.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
03-02-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
rvs.
Crl.MC.No. 6214 of 2015 ()
APPENDIX
PETITIONER(S)' EXHIBITS :
ANNEXURE A: TRUE COPY OF THE ORDER DATED 28.12.2007 IN CRL.M.C NO.2184/2007
OF THE LEARNED SESSION JUDGE, ERNAKULAM.
ANNEXURE B: TRUE COPY OF THE BAIL BOND EXECUTED BY THE RESPONDENTS.
ANNEXURE C: TRUE COPY OF THE FINAL REPORT IN CRIME NO.949/2007 OF ERNAKULAM
TOWN NORTH POLICE STATION.
ANNEXURE D: TRUE COPY OF THE ORDER DATED 20.7.2015 IN CRIMINAL REVISION
PETITION NO.109/2014.
RESPONDENT(S)' EXHIBITS:
NIL.
/TRUE COPY/
P.A.TO JUDGE
rvs.
[CR]
B.KEMAL PASHA, J.
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Crl.M.C. No. 6214 of 2015
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Dated this the 3rd day of February, 2016
O R D E R
The order passed by the Sessions Judge, Ernakulam in Crl.R.P.No.109/2014 is under challenge.
2. In C.C.No.605/2010 of the Judicial First Class Magistrate's Court-I, Ernakulam, the learned Assistant Public Prosecutor filed an application under Section 311A Cr.P.C., seeking an order directing the accused to furnish specimen signatures. The learned Magistrate allowed the application and directed respondents 1 and 2 herein, who are A1 and A2 in the case, to furnish specimen signatures. The accused challenged the said order in Crl.R.P.No.109/2014 before the court below.
3. According to the learned Sessions Judge, Crl.M.C. No. 6214 of 2015 -: 2 :- anticipatory bail was granted to the accused and therefore, there was no arrest as far as the accused are concerned. The court below took the view that the application of Section 311A Cr.P.C. presupposes an arrest, and without an arrest, an order cannot be passed under Section 311A Cr.P.C.
4. Heard the learned counsel for the petitioner, the learned counsel for respondents 1 to 3 and the learned Public Prosecutor.
5. As per the proviso to Section 311A Cr.P.C., "an order under Section 311A shall not be made unless the person has at sometime been arrested in connection with such investigation or proceeding." Admittedly, anticipatory bail was granted to A1 and A2. The learned counsel for the petitioner has produced Annexure-A order, whereby anticipatory bail was granted to A1 and A2. As per the said order, they were ordered to be released on bail in the event of their arrest or on their surrender before the Magistrate's Crl.M.C. No. 6214 of 2015 -: 3 :- court concerned on condition of their executing bail bonds for 10,000/- each with two solvent sureties for the like sum each to the satisfaction of the Officer conducting arrest or the learned Magistrate, before whom, they may surrender.
6. In this particular case, they had surrendered before the Judicial First Class Magistrate's Court-I, Ernakulam and they were enlarged on bail through Annexure-B order. Anneuxure-B order is in Form No.3 of the Code of Criminal Procedure, 1973, and the said bond is meant for "bond and bail bond after arrest under a warrant". When anticipatory bail is granted and a bail bond has been executed, it presupposes an arrest. Only after arrest, a person can be enlarged on bail. When such a bond has been executed, it has to be deemed that it involves an arrest and therefore, an order under Section 311A Cr.P.C can be passed in case of such an accused.
7. The impugned order passed by the learned Crl.M.C. No. 6214 of 2015 -: 4 :- Sessions Judge is therefore, unsustainable in law and the same is liable to be quashed.
In the result, this Crl.M.C is allowed and Annexure- D order stands quashed. The order passed by the learned Magistrate is restored.
Sd/-
B.KEMAL PASHA, JUDGE stu