The court held that a committal court retains authority to consider bail applications despite statutory provisions, affirming the importance of personal liberty in bail considerations.

ORDER :

V.G. Arun, J.

The petitioner is the sole accused in Crime No.27 of 2024 registered at the Excise Range Office, Kattakkada for the offence punishable under Section 55(i) of the Abkari Act 1 of 1077, now pending as C.P.No.185 of 2024 on the files of the Judicial First Class Magistrate Court, Kattakkada. The crime is registered on the allegation that, on 08.05.2024, at 07:30 pm, the excise party found the petitioner selling Indian Made Foreign Liquor (IMFL) at his rented house and recovered 1 litre of IMFL from his possession. At the investigation stage, the petitioner moved applications seeking pre-arrest bail before the Sessions Court as well as this Court, but the same were dismissed as per Annexures A1 and A2 orders. The petitioner has approached this Court again, this time seeking an opportunity to surrender before the trial court and for a direction to consider his bail application on the day of surrender itself.

2. Learned counsel for the petitioner submits that even if this Court directs consideration of his bail application, the Magistrate may hesitate in view of the 2^nd proviso to Section 232 of the Bharatiya Nagarik Suraksha Sanhita , 2023 ('the BNSS ' for short). It is then contended that, if the learned Magistrate decides to consider the bail application, that should be based on the nature of allegations and the present circumstances, uninfluenced by the dismissal of his earlier applications for anticipatory bail. To buttress the argument, reliance is placed on the decision of this Court in Sukumari v. State of Kerala [2001 KHC 43] .

3. The learned Public Prosecutor submitted that the petitioner was absconding throughout the investigation stage and having failed to appear on summons at the committal stage also, is not entitled for any lenient consideration. The learned Public Prosecutor also submitted that the 2^nd proviso to Section 232 is not an embargo for considering the bail applications filed by the accused.

4. The primary question to be considered is whether the 2^nd proviso to Section 232 of the BNSS (earlier Section 209 of the Cr.P.C) takes away the power of the committal court to consider even the bail applications filed by the accused. Being contextually relevant, Section 232 is extracted below;

“232. Commitment of case to Court of Session when offence is triable exclusively by it-

When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-

(a) commit, after complying with the provisions of Section 230 or Section 231 the case to the Court of Session, and subject to the provisions of this Sanhita relating to bail, remand the accused to custody until such commitment has been made;

(b) subject to the provisions of this Sanhita relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) notify the Public Prosecutor of the commitment of the case to the Court of Session:

Provided that the proceedings under this section shall be completed within a period of ninety days from the date of taking cognizance, and such period may be extended by the Magistrate for a period not exceeding one hundred and eighty days for the reasons to be recorded in writing:

Provided further that any application filed before the Magistrate by the accused or the victim or any person authorised by such person in a case triable by Court of Session, shall be forwarded to the Court of Session with the committal of the case.”

(underlining supplied for e