IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 6330 of 2009()
1. BIJU, MALIEKKAL VEEDU,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY PUBLIC
... Respondent
For Petitioner :SRI.B.S.SWATHY KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :06/11/2009
O R D E R
C R
K.T. SANKARAN, J.
---------------------------
B.A. No. 6330 of 2009
------------------------------------
Dated this the 6th day of November, 2009
O R D E R
The question involved in this Bail Application is whether
the offences under Section 20 and 21 of the Kerala Protection of
River Banks and Regulation of Removal of Sand Act, 2001 (Act
18/2001) (herein after referred as ‘Sand Act’) which are
punishable with imprisonment for a term of which may extend to
two years or with fine which may extend to twenty-five thousand
rupees or with both, are non-bailable offences in view of section
24 of the Sand Act.
2. The petitioner apprehends arrest in Crime No. 787/2009
of Chengannur Police Station wherein the offence under
Sections 20 and 21 of the Sand Act are alleged against him.
Hence the petitioner has filed this application for Anticipatory
Bail under Section 438 of the Code of Criminal Procedure.
3. Sri. M.S.Breeze, the learned Public Prosecutor raised a
preliminary objection that the offences alleged against the
petitioner are bailable and therefore the application for
Anticipatory Bail is not maintainable.
B.A. No. 6330 of 2009
2
4. Sri. B.S.Swathi Kumar, the learned Counsel appearing
for the petitioner submitted that Section 24 of the Sand Act
provides that the offences under the Act are cognizable and
therefore it has to be assumed that they are non-bailable as well.
5. Sections 20 and 21 of the Sand Act are extracted below
for easy reference.
” 20. Penalty for contravention
of this Act.- Whoever contravenes any
of the provisions of this Act of rules
made thereunder shall, on conviction
be punished with imprisonment for a
term of which may extend to two years
or with fine which may extend to
twenty-five thousand rupees or with
both and in case of continuing
contravention with an additional fine
which may extend to one thousand
rupees for every day during which such
contravention continues.
21. Abetment of offences.-
Whoever abets any offence punishable
by or under this Act or attempts to
commit any such offence shall be
punished with the penalty provided by
this Act for committing such offence.”
6. Section 24 of the Sand Act Provides that
notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (Central Act 2 of 1974), all offences under
the Act shall be cognizable.
B.A. No. 6330 of 2009
3
7. The II Part of the First Schedule of the Code of Criminal
Procedure contains the ” CLASSIFICATION OF OFFENCES
AGAINST OTHER LAWS”. It is provided therein as follows.
Offence Cognizable Bailable or By what
non-cognizable non-bailable court triable
1 2 3 4
If punishable with death,
imprisonment for life, Cognizable Non-bailable Court of Session.
or imprisonment for more than 7 years, If punishable with imprisonment for 3 years, and upwards but Cognizable Non-bailable Magistrate of not more than 7 years. the first class If punishable with imprisonment for less than 3 years or with Non-cognizable Bailable Any Magistrate fine only.
8. Section 2(a) and (c) of the Code of Criminal Procedure
defines “bailable offence” and “cognizable offence” thus.
” 2(a) “bailable offence” means an offence
which is shown as bailable in the First
Schedule, or which is made bailable by
any other law for the time being in force;
and “non-bailable offence” means any
other offence;
(c) “cognizable offence” means an offence for
which, and “cognizable case” means a
case in which, a police officer may, in
accordance with the First Schedule or
under any other law for the time being in
force, arrest without warrant;”
B.A. No. 6330 of 2009
4
9. The punishment provided for the offences under
Sections 20 and 21 of the Sand Act is less than three years.
Therefore, going by the II Part of the First Schedule to the Code
of Criminal Procedure, such offences would be non-cognizable
and bailable. However, Section 24 of the Sand Act makes the
offence under the Act cognizable. It means that notwithstanding
the Second Part of the First Schedule to the Code of Criminal
Procedure, the Police Officer may arrest the accused without
warrant as the offence is cognizable. It does not mean that the
offence is non-bailable. All cognizable offences are not non-
bailable. For example, Sections 129, 135, 136, 138, 140, 143 to
148, 151 to 153, 157 to 160, 167, 171, 188, 212 to 213, 215 to
216-A, 218, 224, 225-B, 228-A, 259, 260, 269, 270, 277, 279 to
286, 289, 291 to 293, 294, 296, 304-A, 309, 317, 318, 325, 330,
332, 335 to 348, 353, 354, 356, 357, 363, 374, 376-B, 376-C,
376-D, 385, 388, 389, 419, 428 to 433, 435, 440, 447, 448, 451,
462, 469 to 474, 489-C and 509 of the Indian Penal Code
are cognizable but those offences are bailable as well. The
Scheme of the First Schedule to the Code of Criminal Procedure
shows that there are offences under the Indian Penal Code
which are cognizable and non-bailable, cognizable and bailable,
B.A. No. 6330 of 2009
5
non-cognizable but non-bailable and non-cognizable and
bailable. For example, Sections 194, 466, 467, 493 and 505 of
the Indian Penal Code are non-cognizable and non-bailable.
There are several offences under the Indian Penal Code which
are non-cognizable as well as bailable. Thus, it is clear that the
fact that an offence is cognizable does not mean that it is non-
bailable. Similarly, merely because an offence is non-cognizable,
it does not mean that it is always bailable. The question whether
a particular offence is bailable or not does not depend on
whether the offence is cognizable or non-cognizable. The Sand
Act does not indicate that the offences under Sections 20 and 21
are non-bailable.
For the aforesaid reasons, I am not inclined to accept the
contention of Advocate Mr. B.S.Swathi Kumar. The offences
involved in the present case are bailable and therefore the
application for Anticipatory Bail is not maintainable. The Bail
Application is accordingly dismissed.
K.T. SANKARAN
JUDGE
kkms