Allowed

Babu @ Hasan Modi Babu v. State by Halasurgate Police Station

Karnataka HC10 Oct 2014CRL.RP/611/2014

Case brief

AI extract

What is this about?

This judgment allows a criminal revision petition challenging the rejection of a bail application. The court held that the order is maintainable as it affects substantial rights and directed the lower court to consider the mandatory provisions of Section 437(6) Cr.P.C. regarding bail entitlement after 60 days of trial.

What did the court decide?

Impugned order set aside; court below directed to examine if trial exceeded 60 days and grant bail if applicable.

Babu @ Hasan Modi Babu Vs State by Halasurgate Police… — Bail and Remand | Karnataka HC (2014)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 10^TH DAY OF OCTOBER, 2014

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BEFORE

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THE HON’BLE MR. JUSTICE ANAND BYRAREDDY

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CRIMINAL REVISION PETITION No.611 OF 2014

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BETWEEN:

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Babu @ Hasan Modi Babu, Aged about 47 years, Son of Iqbal Mohiddin Mohalla, No.140, Gundappa Street, 1^st Cross, Neelasandra, Bangalore – 560 047, (UTP No.8619/2013)

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…PETITIONER

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(By Shri. Ravi L Vaidya, Advocate)

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AND:

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State by Halasurgate Police Station, Represented by Public Prosecutor, Cauvery Bhavan, Bangalore.

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…RESPONDENT

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(By Shri. K.R. Keshava Murthy, State Public Prosecutor 1)

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This Criminal Revision Petition is filed under Section 397 read with 401 of the Code of Criminal Procedure, 1973, by the advocate for the petitioner praying to set aside the order passed by the VI Additional Chief Metropolitan Magistrate, Bangalore City, dated 10.3.2014 in C.C.No.16086/2013 rejecting the application of the petitioner filed under Section 437(6) Cr.P.C. and allow the application filed by the petitioner 437(6) of Cr.P.C. in C.C.No.16086/2013 on the file of the VI Additional Chief Metropolitan Magistrate, Bangalore City and release the petitioner on bail.

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This petition coming on for Orders this day, the court made the following:

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O R D E R

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Heard the learned Counsel for the petitioner. The learned

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State Public Prosecutor is directed to take notice and is heard.

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The office has raised an objection as to the maintainability of the present petition. The background is that the petitioner is accused of offences punishable under Sections 380, 466, 468, 471, 473, 419, 420, 201, 120-B read with Section 34 of the Indian Penal Code, 1860 (Hereinafter referred to as the ‘IPC’, for brevity). The petitioner is in custody and it is his case that the trial is deemed to have commenced before the Court of the Additional Chief Metropolitan Magistrate

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Court, Bangalore as on 11.12.2013 as seen from a copy of the order sheet, which is also filed along with the petition. It transpires that the trial was still not completed even after 60

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days after commencement. Therefore, the petitioner had invoked Section 437(6) of the Code of Criminal Procedure,

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1973 and sought bail in terms of the said provision. The court below having rejected the application, the petitioner is before this court.

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The learned Counsel would draw attention to the tenor

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of Section 437(6) which reads as follows:

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“437. When bail may be taken in case of nonbailable offence.-¹ (1) 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 Session, he may be released on bail, but –

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(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

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(ii) such person shall not be so released if such offence is a cognizable offence

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1 Subs. by Act 63 of 1980, sec.5(a), for sub-section (1) (w.r.e.f.23-9-1980)

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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 2[a cognizable offence punishable with imprisonment for three years or more but not less than seven years]:

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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 women or is sick or infirm:

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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:

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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:]

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³ [provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor.]

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(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial as the case may be , that there are no reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into

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2 Subs. by Act 25 of 2005, sec. 37(i)(a), for “a non-bailable and cognizable offence” (w.e.f. 23-6-2006)

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3 Ins. by Act 25 of 2005, sec. 37(i)(b) (w.e.f. 23-6-2006).

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his guilt,⁴ [the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail], or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.

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(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub-section (1) �[the Court shall impose the conditions.-

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(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter,

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(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

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(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such acts to the Court or to any police officer or tamper with the evidence,

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and may also impose, in the interests of justice, such other conditions as it considers necessary.]

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4 Subs. by Act 63 of 1980, sec. 5(b), for “the accused shall, pending such inquiry, be released on bail”. (w.r.e.f. 23-9-1980).

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1 Subs. by Act 25 of 2005, sec. 37(ii), for “the Court may impose any condition which the Court considers necessary—

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(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or

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(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or

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(4) An officer or a Court releasing any person on bail under sub-section (1), or sub-section (2), shall record in writing his or its² [reasons or special reasons] for so doing.

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(5) 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.

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(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.”

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The learned Counsel would submit that having regard to

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the mandatory nature of the provision, when it is demonstrated that the trial having commenced and not having been completed within 60 days, the petitioner was entitled to bail as a matter of right. It is in this background that the application was filed. The court below though having taken note of the fact that the particular provision having been invoked, has failed to

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2 Subs. by Act 63 of 1980, sec. 5(c) , for “reasons” (w.e.f. 23-9-1980).

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consider the language of the same and has proceeded on the basis that the allegations against the petitioner are of a serious nature and that his repeated applications for bail have been rejected not only by the court below, but also by this court and has ultimately rejected the application. It is that which is sought to be challenged in the present appeal.

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The office has questioned the maintainability of the petition and has listed the same as regards ‘Orders on maintainability’. In this regard, the learned Counsel would submit that the office has proceeded on the presumption that the order under challenge is an interlocutory application and therefore, a revision petition under Section 397 of the Cr.PC would not be maintainable. In this regard, he would draw attention to a judgment of the Supreme Court in the case of Haryana Land Reclamation and Development Corporation Limited vs. State of Haryana, (1990)3 SCC 588, wherein the Supreme Court, citing an earlier decision in Amarnath vs. State

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of Haryana, 1977 SC 2185, has extracted the following

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passage:-

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“The term “interlocutory order” is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the CPC, Letters Patent of the High Courts and other like statutes. In Webster’s New World Dictionary “interlocutory” has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term “interlocutory order” in Section 397(2) of the 1973 Code has been used in restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision of the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code.”

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The apex court has held in the circumstances of the

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case with which the Supreme Court was dealing, that it could not be said that though the impugned order was seemingly an interlocutory order, it could be deemed to be an order which affected the rights of the accused substantially and therefore, the revision petition was maintainable. By the same token of reasoning, the learned Counsel for the petitioner would submit that though the order could be described as an interlocutory order, since it affects a right conferred under the statute, which the court below has failed to take note of, the ratio of the said decision would apply on all fours to the present case on hand and seeks that the petition be allowed.

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The learned State Public Prosecutor would not seriously dispute the nuances sought to be placed on the definition of an ‘interlocutory order’ when the important rights or liabilities of the parties are affected by such orders and the revisional powers of the High Court to challenge such orders. And in the

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light of the decision of the apex court, he would not dispute that a revision petition would be maintainable though seemingly the impugned order appears to be in the nature of an interlocutory order.

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Given the above circumstances, it is evident that the court below has failed to address the mandatory language of Section 437(6) of the Cr.PC.

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Consequently, the petition is allowed. The impugned

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order is set aside. The court below is directed to address the circumstance whether 60 days had elapsed from the date of commencement of the trial, without the trial being completed and notwithstanding the gravity of the offences alleged against the petitioner, he shall be entitled to bail, if indeed, the trial has not been completed within 60 days from the date of commencement.

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Sd/- JUDGE

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Babu @ Hasan Modi Babu v. State by Halasurgate Police Station

Case brief

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Babu @ Hasan Modi Babu v. State by Halasurgate Police Station

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