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IN THE HIGH COURT OF KERALA
K. HEMA, J.
MAHESH - Appellant
Versus
STATE OF KERALA - Respondent
Criminal M.A. No. 1867 of 2009 in B.A. No. 4368 of 2008
Decided on : 03-08-2009
Criminal Law - Criminal Trial - Criminal Procedure Code, 1973 - Sections .437, 439 , 437( 5) ,439( 2) 446A,441 - Grant of Bail - When warranted - Conditions - Deputy Superintendent of Police, who is present investigating officer filed a report before the Magistrate Court stating that all the three accused failed to report before Investigating Officer and violated conditions imposed by the High Court and Sessions Court - 1st and 2nd accused did not report before the investigating officer, after 4.9.2008 and 22.9.2008 respectively and 3rd accused, since 15.9.2008. Therefore, he requested the Magistrate Court to take necessary action in the matter - Learned Magistrate therefore sent a report to this Court to cancel bail, since according to him, bail granted by the High Court can be cancelled only by the High Court - Whether Section 441 does not make any difference between the bond to be executed by an accused, on the order of the Magistrate u/S.437 of the Code or on the order of the High Court/Sessions Court u/S.439 - Whether If any condition in the bail order, imposed by the Superior Courts, is violated, the Magistrate Court can independently proceed against the accused for procuring his presence or to proceed against him for forfeiture of bond - Held, If a Magistrate comes across with instances of violation of conditions of bail imposed by Superior Courts or if a report is filed by an investigating officer pointing out violation of such conditions of bail without there being any request for cancellation of bail, nothing prevents the Magistrate from proceeding against such accused under appropriate provisions of law - A joint reading of Ss.439, 441, and 446A of the Code, shows that when a person is granted bail by the High Court or Sessions Court, he shall be released on bail only after execution of a bail bond, as provided under S.441 of the Code. If any condition is imposed by the High Court or the Sessions Court, such condition shall also be incorporated in the bail bond. If any of such condition is violated by the accused and thereby, such bond is forfeited by any person or persons, who executed the bail bond, the bond shall stand cancelled, by virtue of S.446A of the Code - As per S.441 (1) of the Code, before any person is released on bail, he shall execute a bond that such person shall attend at the time and place mentioned in the bond and continue to attend, until otherwise directed by the Court. Sub-s.(2) of S.441 provides that where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. S.441 does not make any difference between the bond to be executed on the order of the Magistrate or the superior Courts. Whether it be on the basis of in order passed by the Magistrate Court under S.437 or by the Sessions Court or High Court under S.439 of the Code, the nature of bail bond to be executed is the same under S.441 and it must be in accordance with the terms and conditions imposed in the bail order by respective court - Magistrate need not to address the High Court or Sessions Court to cancel bail - Whereas a High Court/Sessions Court can only direct that an accused be released on bail, a Magistrate Court, can, by itself, release an accused on bail - The Court must be satisfied that the bond is forfeited - The matter is disposed of accordingly.[
The ratio decidendi of the case is that when a person is granted bail by a higher court, such as the High Court or Sessions Court, the actual release on bail is effected by the Magistrate after the execution of a bail bond, which must incorporate any conditions imposed by the higher court (!) (!) . If the accused violates any of these conditions, the bail bond is automatically forfeited, leading to its cancellation under the provisions governing bail bonds (!) (!) (!) . Once the bond is forfeited and cancelled, the Magistrate has the authority to proceed against the accused for the breach, including issuing warrants and arresting the accused, without the need for a separate order from the higher court to cancel bail (!) (!) (!) . Therefore, the Magistrate can independently act upon violations of bail conditions, especially when such violations result in the forfeiture of the bail bond, and it is not necessary to seek prior cancellation from the court that originally granted bail.
K. Hema, J.
1. If an accused violates any condition imposed by the High Court or the Sessions Court in the order granting bail, can the Magistrate himself proceed against him for such violation, under the provisions of the Code of Criminal Procedure ('the Code', for short). Is it necessary for the Magistrate to address this Court to cancel bail?
2. This Court granted bail to the third accused, as per order dated 4.8.2008 in B. A. No. 4368/2008, on condition that he shall report before the investigating officer, on every alternate day, between 10 a.m. and 1 p.m., until further orders. Another condition was that he shall not leave the limits of the police station within which the crime is registered, except with the previous permission of the learned Magistrate.
3. Bail was granted to 1st and 2nd accused by the Sessions Court as per order in Crl.M.P.3251/07 dated 14.8.2007 on condition that they shall report before the investigating officer on every Monday and Thursday between 10 a.m. and 11 a.m. until the final report is filed. All the three accused executed the bond before the Magistrate Court and were released on bail.
4. The Deputy Superintendent of Police, who is the present investigating officer filed a report before the Magistrate Court stating that all the three accused failed to report before Investigating Officer and violated the conditions imposed by the High Court and Sessions Court. The 1st and 2nd accused did not report before the investigating officer, after 4.9.2008 and 22.9.2008 respectively and 3rd accused, since 15.9.2008. Therefore, he requested the Magistrate Court to take necessary action in the matter. Learned Magistrate therefore sent a report to this Court to cancel bail, since according to him, bail granted by the High Court can be cancelled only by the High Court.
5. Notice was issued to third accused by this Court, calling upon him to show cause why bail shall not be cancelled. He entered appearance through counsel and filed an affidavit stating that he was laid up etc. Heard both sides. Learned Public Prosecutor argued that as per the settled position of law, if the accused violates any condition imposed by the High Court or the Sessions Court while granting bail u/s 439 of the Code, bail can be cancelled only by the High Court or Sessions Court. The Magistrate has no power to cancel the bail and hence, bail granted to 3rd accused may be cancelled, it is submitted.
6. Learned Public Prosecutor also relied upon a decision of the Supreme Court reported in Gurcharan Singh v. State (Delhi Admn.) AIR 1978 SC 179 in support of his arguments. The relevant portion of the above decision is extracted hereunder:
Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court
7. In Narendra K. Amin (Dr.) v. State of Gujarat (2008) 13 SCC 534, It was held that "under the scheme of the Code, the application for cancellation of bail can be filed before the Court granting the bail if it is a Court of Session or the High Court".
8. Learned Counsel for 3rd accused contended that the 3rd accused was unable to report before the investigating officer, since he was laid up due to viral hepatitis. The 3rd accused filed an affidavit before this Court and also produced a medical certificate and contended that there was no wilful default or breach of any condition imposed, while granting bail and hence, bail may not be cancelled.
9. On hearing both sides and on going through report of learned Magistrate and report of the investigating officer (which was filed before Magistrate Court), I find that the only request made by Investigating Officer
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