IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl MC No. 2927 of 2007()
1. PRITHIVIRAJ B.S., S/O.BHASKARN NAIR,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
For Petitioner :SRI.S.KRISHNAKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :04/10/2007
O R D E R
R.BASANT, J
------------------------------------
Crl.M.C.No.2927 of 2007
-------------------------------------
Dated this the 4th day of October, 2007
ORDER
The petitioner faces indictment in a prosecution for offences
punishable, inter alia, under Section 332 I.P.C. The alleged incident
occurred on 7.2.2005. All other offences alleged are bailable. Section
332 I.P.C, after the amendment by Act 25 of 2005, is non bailable now
w.e.f 23.06.06. Final report has already been filed. Cognizance has
already been taken. The learned Magistrate has registered the case
as C.C.No.507 of 2005. The petitioner is a person employed abroad.
He has not come to India after cognizance was taken. The petitioner
now comes to know that a warrant of arrest has been issued by the
learned Magistrate to procure his presence. The petitioner, in these
circumstances, has come to this Court with a prayer to quash the final
report in so far as it relates to the allegation under Section 332 I.P.C.
2. The learned counsel for the petitioner submits that the
petitioner is willing to stand trial for the other offences. But the
offence under Section 332 I.P.C is non bailable. Because the said
offence is non bailable, the petitioner apprehends that the learned
Magistrate may remand him to custody when he appears before the
Crl.M.C.No.2927 of 2007 2
learned Magistrate. The petitioner is coming back to India by the
middle of November, 2007. The petitioner is willing to appear before
the learned Magistrate. He is willing to apply for bail. But he
apprehends that since the non bailable offence under Section 332 is
also alleged, the learned Magistrate may not grant regular bail to the
petitioner. The learned counsel for the petitioner further urges that
charge under Section 332 I.P.C is not sustainable and is hence liable to
be quashed.
3. The jurisdiction which is sought to be invoked is the
extraordinary inherent jurisdiction under Section 482 Cr.P.C.
Ordinarily and normally, when a person faces such allegation, it is for
him to appear before the learned Magistrate and claim discharge for
that offence which according to him is not maintainable. It is not
necessary for this Court to invoke the powers under Section 482
Cr.P.C in every case where there is a possibility of the plea for
discharge for any one of the Sections being upheld by the learned
Magistrate. I find absolutely no reason in this case for this court to
invoke the powers under Section 482 Cr.P.C to quash one of the
several charges that are raised against the petitioner.
4. The apprehension of the petitioner that the offence being
non bailable the petitioner may not be granted bail can easily be
Crl.M.C.No.2927 of 2007 3
allayed by issuing appropriate directions under Section 438 Cr.P.C. On
merits as also on the ground that the offence when it was committed
was bailable, I am persuaded to issue directions under Section 438
Cr.P.C in favour of the petitioner.
5. This Crl.M.C is, in these circumstances, allowed in part.
The following directions are issued under Section 438 Cr.P.C in favour
of the petitioner.
i) The petitioner shall surrender before the learned
Additional Chief Judicial Magistrate, Trivandrum on or before
01.12.2007;
ii) He shall be released on regular bail by the learned
Magistrate on condition that he executes a bond for Rs.25,000/-
(Rupees Twenty five thousand only) with two solvent sureties each for
the like sum to the satisfaction of the learned Magistrate;
iii) He shall make himself available for interrogation before
the Investigating Officer as and when directed by the Investigating
Officer in writing to do so;
iv) If the petitioner does not appear before the learned
Magistrate as directed in clause (i), directions issued above shall
thereafter stand revoked and the police shall be at liberty to arrest the
petitioner and deal with him in accordance with law as if those
directions were not issued at all;
Crl.M.C.No.2927 of 2007 4
v) If the petitioner were arrested prior to his surrender on or
before 01.12.2007 as directed in clause (1) above, he shall be released
from custody on his executing a bond for Rs.25,000/- (Rupees Twenty
Five thousand only) without any sureties undertaking to appear before
the learned Magistrate on or before 01.12.2007.
(R.BASANT, JUDGE)
rtr/-