IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 6273 of 2008()
1. PUTHIYAPURAYIL MOIDEENKUTTY,
... Petitioner
2. P.K.MUHAMMADALI. S/O.MOIDEEN HAJI,
3. SHAKEEB.K. S/O. FATHIMA, 22 YEARS,
4. K.HAKKIM, S/O. FATHIMA, 22 YEARS,
5. KALIATH GAFOOR, S/O. ABDULLA,
6. NIDINCHARA RASHEED, 27 YEARS,
7. SEERAKTH ISHAQ, 23 YEARS, S/O. HASSAINAR
Vs
1. THE STATE OF KERALA ( THE SUB INSPECTOR
... Respondent
For Petitioner :SRI.O.V.MANIPRASAD
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MRS. Justice K.HEMA
Dated :05/12/2008
O R D E R
K.HEMA, J.
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B.A.No.6273 of 2008
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Dated this the 5th December, 2008
O R D E R
Petition for anticipatory bail.
2. According to prosecution, petitioners (accused
nos.6,7,8,15,16,19 and 20 ), along with other persons (about 50 persons in
total), who are Muslim League workers formed into an unlawful assembly,
armed with deadly weapons, under the leadership of first accused,
assaulted workers of CPI(M) (defacto complainant and others), using iron
rod, reapers, stone etc. Defacto complainant sustained a fracture to the
leg, thereby.
3. Learned counsel for petitioners argued that petitioners are
innocent of the allegations made and they are deliberately dragged into this
case and falsely implicated under strong political influence. As per the
allegations in the First Information Statement, no overt act is attributed to
petitioners and, they have not inflicted any injury on the defacto
complainant, it is submitted. The only grievous injury sustained by defacto
complainant is a fracture to his leg, and it was allegedly caused by pelting
of stones by fifth accused, it is pointed out.
4. Learned counsel for petitioners also submitted that accused
nos. 1 to 5 who are the prime offenders in the case were granted
BA No.6273/2008 2
anticipatory bail by learned Sessions Judge, as per Annexure 3-order. If
petitioners are refused anticipatory bail and in case they surrender before
the Magistrate’s court, it is likely that they will be remanded to custody and,
they will suffer irreparable injury and loss, it is submitted. It will also result
in great injustice, if petitioners who have a lesser role in the incident are
remanded especially since prime offenders are granted anticipatory bail,
as per Annexure 3-order, it is submitted.
5. This petition is opposed. Learned Public Prosecutor submitted
that two other crimes are also registered against petitioners on the same
day, as crime nos. 202/08 and 203/08; one under Section 353 IPC etc.
and another under the provisions of the PDPP Act etc. Almost at the
same time and same venue, petitioners caused injuries to police
constables also and they were prevented them from discharging their duty.
Stones were pelted by accused at the Grama Panchayath office and
damage was also caused to the Panchayath office, and three crimes were
registered in respect of three incidents which took place within span of one
hour.
6. It is also pointed out by learned Public Prosecutor that as per
Annexure 3-order, anticipatory bail was not granted to co-accused.
Learned Sessions Judge entered a clear finding in Annexure 3 that this is
not a fit case to grant anticipatory bail and it was also observed that
BA No.6273/2008 3
learned Sessions judge was not inclined to invoke section 438 of the code.
In such circumstances, Annexure 3 cannot be deemed to be an
anticipatory bail order and petitioners cannot claim any benefit under the
said order, it is submitted.
7. Annexure 3-order passed by learned Sessions judge is
extracted below:
“The learned public prosecutor produced a report from
Sreekandapuram Police Station. In the report it is stated that
these petitioners and others formed themselves into an
unlawful assembly under the leadership of A1 who is a
practising lawyer. He had given leadership to all the activities
of the unruly mob. Considering the fact that these petitioners
are accused in other crimes of similar nature and as the
petitioners failed to make out any special circumstance for
invoking the provisions of Section 438 Crl.P.C., I am not
inclined to invoke the provisions of Section 438 Crl.P.C. At the
same time, I am satisfied that following directions can be given
while disposing of this Crl.M.C.
(1) Petitioners shall surrender before the Court of JFMC,
Taliparamba on a day prior to 22.9.2008. In case bail
application is moved, they shall be released on bail on
executing a bond for Rs.20,000/- each with two solvent sureties
each in the like sum to his satisfaction.
(2) In case petitioners are arrested by the I.O. in connection
with crime no.206/08, they shall be released on bail on
executing a bond for Rs.20,000/- each without sureties on
condition that they shall surrender before the concerned court
before 22.9.2008.
(3) In case petitioners fail to surrender before the concerned
court on or before 22.9.2008, this order shall lapse.
(4) They shall appear before the I.O. on 23.9.2008 and
24.9.2008 for interrogation.”
A reading of Annexure-3 order shows that learned Sessions Judge
BA No.6273/2008 4
was not inclined to invoke the provision contained in section 438 of the
code, since there are no special circumstances to do so. A specific finding
was entered that applicants failed to make out any special circumstances
for invoking provisions of Section 438 of the code. After having found that
it is not a fit case to grant anticipatory bail, lower court issued certain
directions that the accused be released on bail, in the event of arrest and
also on appearance before Magistrate court.
8. A reading of sections 437, 438 and 439 of the code would
reveal that when an accused appears before Magistrate Court, such
person can be released on bail under section 437 of the code by the court,
before which, such person appears, but such court will not include a Court
of Session. An order under section 437 of the code can be passed only by
a court other than a High Court or Court of Session. So, it follows that
bail can be granted under Section 437 only by the court before which the
accused appears and a Court of Session will not have jurisdiction to issue
any direction under section 437 of the code to the Magistrate Court to
release a person who appears before such court. If it does so, the
Sessions court will be usurping jurisdiction of the Magistrate Court and
interfering with the independent exercise of the jurisdiction of the latter.
9. Under section 439 of the code, a Court of Session may issue
an order that an accused who is in custody be released on bail. But,
BA No.6273/2008 5
such an order is issued not in anticipation of such custody. It is passed
only in respect of a person who is already in custody and not in relation to
any person who is not in custody. So, it is clear that a Court of Session
cannot issue any direction to a Magistrate Court either under section 437
or 439 of the code to release a person in anticipation of his appearance
before such court. Such a direction which may take effect on his
appearance is not permissible either under Section 437 of 439 of the Code.
In other words, a direction cannot be issued under Section 437 or 439 of
the code by the court of Sessions in anticipation of the appearance or
custody of a person by the Magistrate Court or any other court.
10. However, under section 438 of the code, a Court of Session
has the power to issue direction that a person be released on bail, in the
event of his arrest. Such an order is issued in anticipation of the arrest. So,
in cases in which an accused is not so far arrested the Sessions Court can
direct that he be released on bail in case he be arrested. In cases in which
an accused appears before the Magistrate Court, in obedience of the
direction issued by a Court of Session also, the Sessions court can issue a
direction under Section 438, to release him on bail since, in such event,
there will be a deemed arrest of the accused by the court, on his
appearance before court. Therefore, the direction issued in this case as
per Annexure 3 order to release the accused can only be treated as one
BA No.6273/2008 6
falling under section 438 of the Code, since it was issued in anticipation of
a deemed arrest, on appearance of the accused in the Magistrate Court.
11. Therefore, it follows that learned Sessions Judge went wrong
fundamentally in issuing a direction for release of accused on bail on his
appearance, after entering a find that there are no special circumstance to
pass an order under section 438 of the code and that the court was not
inclined to invoke provision contained in section 438 of the code etc., If
the Sessions court finds that it is not a fit case to invoke section 438 of the
code, it shall not issue any direction to release the accused on his
appearance/ surrender before the Magistrate Court because, it has no
powers under any of the provisions contained in the code relating to bail, to
issue such directions. So, any such order issued by a Court of Session
directing the Magistrate Court to release an accused on bail on his
surrender will be illegal and without any jurisdiction, unless it is an order
passed under Section 438 of the Code.
12. Now coming to the facts persons who are specifically named in
the First Information Statement and against whom specific overt acts are
attributed, enjoyed, the benefit of pre-arrest bail as per Annexure 3-order.
Though the co-accused obtained the benefit under an illegal order, it will be
unfair if the petitioners, who have lesser role in the incident are denied
such benefit. No specific allegations are made against petitioners in the
BA No.6273/2008 7
First Information Statement and no overt act is alleged. Even at present, it
is not clear from the case diary as to what are the specific overt acts
committed by each of the accused.
In such circumstances, on the peculiar facts and circumstances, I am
forced to invoke section 438 of the code to grant anticipatory bail to
petitioners, since refusal of such order to them may result in great
injustice. Hence, the following order is passed:
(1) Petitioners shall surrender before the Magistrate court
concerned and they shall be released on bail, on their
executing bond for Rs.25,000/- with two solvent sureties each
for like sum to the satisfaction of the learned Magistrate on the
following conditions:
(i) Petitioners shall report before the Investigating Officer
within three days of release on bail and co-operate with
the investigation and make themselves available for
interrogation.
(ii) Petitioners shall not influence or intimidate any witness
or commit any offence while on bail.
With these directions, petition is allowed.
K.HEMA, JUDGE
csl