High Court Kerala High Court

Biju vs State Of Kerala on 6 November, 2009

Kerala High Court
Biju vs State Of Kerala on 6 November, 2009
       

  

  

 
 
  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

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