Disposed

Oommen Geevarghese v. State of Kerala

Kerala HC8 Nov 2017Crl.MC/7387/2017

Case brief

AI extract

What is this about?

The High Court of Kerala directed the trial Magistrate to grant bail, recall a non-bailable warrant, and consider related applications on the same day as the accused's surrender in a cheque dishonour case. The Court held that the issuance of a non-bailable warrant is no ground to refuse bail in bailable offences and deferred further coercive steps pending the Magistrate's order.

What did the court decide?

Stayed execution of non-bailable warrant and directed the Magistrate to consider bail and recall the warrant on the same day of surrender within two weeks.

Oommen Geevarghese Vs State of Kerala — Cheque Dishonour | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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WEDNESDAY, THE 8TH DAY OF NOVEMBER 2017/17TH KARTHIKA, 1939

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Crl.MC.No. 7387 of 2017 ()

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LP 28/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT - I, CHENGANNUR (CCNO.225/1998)

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-----------------

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PETITIONER :

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OOMMEN GEEVARGHESE

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S/O.A.G.VARGEHESE, ALELIL NO.3, VENMONY P.O., CHENGANNUR, ALAPPUZHA DISTRICT.

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BY ADVS.SRI.K.SURESH SMT.DEEPTHI S.MENON

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RESPONDENTS :

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1. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.

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2. K.P. KARUNAKARAN NAIR BHASKARA VILASAM BANGLAW, ALA VADAKKU MURI, ALA VILLAGE, CHENGANNUR-689121, ALAPPUZHA DISTRICT.

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R1 BY PUBLIC PROSECUTOR SRI. JESTIN MATHEW

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 08-11-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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ALEXANDER THOMAS, J.

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---------------------------------------Crl.M.C.No.7387 of 2017

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----------------------------------------Dated this the 8^th day of November, 2017

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O R D E R

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The petitioner is accused for the offence punishable under Section 138 of the Negotiable Instruments Act in C.C.No.225 of 1998 on the file of the Judicial First Class Magistrate Court, Chengannur, instituted on the basis of a complaint filed by the second respondent herein.

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It is stated that the petitioner is a coolie and had gone out of State in search of his employment and that no summons or warrant has ever been served on the petitioner in this case. Now the petitioner has returned back home. He came to know recently that a non bailable warrant has been issued against him in relation to this case and the case is now transferred to the long pending case list and numbered as L.P.No.28 of 1999. The petitioner is a law abiding citizen and that he is prepared to voluntarily surrender before the learned Magistrate and seek grant of bail. It is prayed that this Court may direct the learned Magistrate to consider the application for grant of bail, recall of non bailable warrant, etc., on the same day of surrender and that otherwise, he apprehends that he may be remanded to judicial custody on account

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Crl.M.C.No.7387/17

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of the pendency of the non bailable warrant issued against him. The prayer in this Crl.M.C. is as follows:

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“For these and other grounds to be urged at the time of hearing, it is most respectfully prayed that this Honourable Court may be pleased to stay the execution of the non bailable warrant issued against the petitioner and permit him to appear before the Judicial First Class Magistrate Court, Chengannur in L.P.No.28/1999 and to consider the application for bail on the date of surrender itself.”

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Heard Smt.Deepthi.S.Menon, learned counsel appearing for

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the petitioner/accused and Sri.Jestin Mathew, learned prosecutor appearing for R1/State.

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In the nature of the orders proposed to be passed in this

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petition, notice to R2/complainant will stand dispensed with.

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This Court in the judgment in Oseela Abdul Khader v.

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State of Kerala reported in 2012 (4) KLT 535 , has considered the issue as to whether the Magistrate is correct in remanding an accused, who has offered to give bail for the reason that non bailable warrant is pending against such person and that steps under Sections 82 and 83 of the Cr.P.C. are also taken against such person. Answering this issue, this Court has held that when the accused has surrendered before the Magistrate in a case relating to bailable offence, it is not proper to pass

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a drastic order to incarcerate such an accused and the fact that non

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Crl.M.C.No.7387/17

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bailable warrant has been issued against the accused, in such a case involving bailable offence, then whatever be the justification of such an order, that by itself will not be a ground to incarcerate the accused. This Court held in that case that the learned Magistrate evidently has not taken note that where the offence is bailable and the accused, if he offers to give bail, has to be released pending his trial and there is no question of police officer or court exercising any discretion in granting bail and only choice is of demanding security with surety, etc. and that the only exception that can be made against an accused proceeded of bailable offence would be in a situation covered by sub-section (2) of Section 439 of the Cr.P.C. The fact that the Magistrate has issued non bailable warrant against such accused and proceeded with coercive steps under Sections 82 and 83 of the Cr.P.C., is no ground to refuse bail when the offence is bailable and that the accused is entitled to be released on bail as of right. It will be profitable to refer to paragraph 9 of the said decision, which reads as follows:

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"9. When the 1^st petitioner surrendered before the Magistrate I fail to understand why a drastic order to incarcerate her was called for. The fact that a non - bailable warrant has been issued against her in the case whatever be the justification for such an order by itself is not at all a ground to incarcerate her. The offence imputed against her under S.12(1)(b) of the Act contemplates punishment of imprisonment for a term which may extend to two years or with fine which may extend to Rs.5,000/- or with both. As the offence falls under Clause II of the Ist Schedule to the Code with punishment for less than three years, it is bailable. The learned Magistrate evidently has not taken note that where the offence is bailable the accused if he offers to give bail has to be released pending his trial, and there is no question of the police officer or Court exercising any discretion in granting bail. Only choice is

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of demanding security with surety. An exception thereto can be made against an accused proceeded of bailable offence only in a situation covered by sub-section (2) of S.439 of the Code. The Magistrate has issued a non - bailable warrant against such accused and proceeded with coercive steps under S.82 and S.83 of the Code against such accused, is no ground to refuse bail when the offence imputed is bailable and she is entitled to be released on bail as of right."

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6. In this regard, it is also relevant to note the judgment of the

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Apex Court in the case Rasiklal v. Kishore, reported in (2009) 4 SCC

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446 , wherein it has been held in paragraph 9 thereof as follows:

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“9. As is evident, the appellant is being tried for alleged commission of offences punishable under Sections 499 and 500 of the Penal Code. Admittedly, both the offences are bailable. The grant of bail to a person accused of a bailable offence is governed by the provisions of Section 436 of the Code of Criminal Procedure, 1973. The said section reads as under:

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“436. In what cases bail to be taken.—(1) When any person other than a person accused of a 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, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such court to give bail, such person shall be released on bail:

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Provided that such officer or court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided.

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Explanation.—Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the court to presume that he is an indigent person for the purposes of this proviso:

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Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of Section 116 or Section 446-A.

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(2) Notwithstanding anything contained in sub-section (1), where a person has failed to comply with the conditions of the bail bond as regards the time and place of attendance, the court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the court or is brought in custody and any such refusal shall be without prejudice to the powers of the court to call upon any person bound by such bond to pay the

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penalty thereof under Section 446.”

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There is no doubt that under Section 436 of the Code of Criminal Procedure a person accused of a bailable offence is entitled to be released on bail pending his trial. As soon as it appears that the accused person is prepared to give bail, the police officer or the court before whom he offers to give bail, is bound to release him on such terms as to bail as may appear to the officer or the court to be reasonable. It would even be open to the officer or the court to discharge such person on his executing a bond as provided in the section instead of taking bail from him. ''

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The offence alleged against the petitioner is one under Section 138 of the Negotiable Instruments Act, which is bailable. Therefore, going by the provisions contained in Section 436 of the Code of Criminal Procedure, as well as the legal principles laid down by this Court and by the Apex Court in the aforequoted judgments, the accused is entitled to be released on bail, and the fact that non bailable warrant was issued against the accused or other coercive steps were initiated against the accused, etc., are no ground to refuse bail.

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In the facts and circumstances of this case, it is ordered in the interest of justice that in case the petitioner voluntarily surrenders and personally appears before the Judicial First Class Magistrate Court, Chengannur, dealing with L.P.No.28 of 1999, within a period of two weeks from the date notified for receiving certified copy of this order and submit necessary applications for grant bail, recall of non bailable warrant, etc, then the learned Magistrate shall consider those applications and pass necessary orders thereon on the same day itself in accordance with law and after taking into consideration the legal

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Crl.M.C.No.7387/17 : :6::

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principles laid down by the Apex Court and this Court in the aforesated judgments and also by taking into account the fact that the offence alleged against the petitioner is only a bailable offence. Until orders are passed by the learned Magistrate as directed herein above, all further coercive steps including the non bailable warrant issued against the petitioner in relation to this case will stand deferred. However, it is made clear that in case the petitioner does not appear before the learned Magistrate within the above time limit, then the benefit of this direction will stand automatically vacated without any further orders from this Court. The petitioner may produce a certified copy of this order before the learned Magistrate along with the abovesaid applications.

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With these observations and directions, the Criminal Miscellaneous Case stands finally disposed of.

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ALEXANDER THOMAS JUDGE

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csl

Oommen Geevarghese v. State of Kerala

Case brief

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Oommen Geevarghese v. State of Kerala

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