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High Court of Judicature at Madras
S. NAGAMUTHU, J.
Parameswaran
Versus
Inspector of Police, N-1 Royapuram Police Station, Chennai
Case No : Crl.O.P.No.18533 of 2012
Decided On : 02-08-2012
(B)Constitution of India-Art.21-Code of Criminal Procedure, 1973(2 of 1974)-Sec.436-Offence-Bailable offence-Bail-Accused-Right-Magistrate-Duty-Right to bail in a bailable offence is an absolute and indefeasible right of the accused-In bailable offences, neither the Magistrate nor the police officer who has arrested the accused has any power to deny bail provided the accused is prepared to execute bond and also to produce sureties.
In my considered opinion too, the right to bail in a bailable offence is an absolute and indefeasible right of the accused. Neither the Magistrate nor the police officer who has arrested the accused has any power to deny bail provided the accused is prepared to execute bond and also to produce sureties. Para 12
(C)Constitution of India-Art.21-Code of Criminal Procedure, 1973(2 of 1974)-Sec.436, 482, 483-Offence-Bailable offence-Bail-Accused-Right-High Court-Jurisdiction-The right of an accused to come out on bail is a constitutional right inbuilt in Article 21 of the Constitution-High Court could exercise its jurisdiction under Sec.482, 483 Cr.P.C. to grant bail to a party when he is denied bail in bailable offences.
After all the Code of Criminal Procedure is only a procedural law and it is not a substantive law; whereas the right of an accused to come out on bail is not only a statutory right under Section 436 of Cr.P.C. but also a constitutional right inbuilt in Article 21 of the Constitution. When such a right is very seriously infringed, I am of the view that this court has to necessarily invoke its inherent jurisdiction under Section 482 of Cr.P.C. as well as the power of superintendence over the court of magistrate under Section 483 of Cr.P.C. to set aside the said illegal order of the learned Metropolitan Magistrate. Para 15
(D)Constitution of India-Art.21-Code of Criminal Procedure, 1973(2 of 1974)-Sec.436-Offence-Bailable offence-Bail-Accused-Right-Intervener-Locus standi-In a case of bailable offence, no one has got any right to oppose bail including the police and the de facto complainant.
In my considered opinion, in a case of bailable offence, no one has got any right to oppose bail including the police and the de facto complainant. The learned senior counsel has produced the affidavit filed by the Advocate Mr.R.C.Manoharan before the learned Sessions Judge. In the said affidavit he has not stated anything as to how he has got locus standi in the matter. Assuming that he is an interested party and he has got locus standi, he has got no right to oppose the bail because the bail in bailable offence is an absolute right of the accused. Para 16
1. The petitioner is the 2nd Accused in Crime No.841 of 2012 on the file of the respondent police. Initially, the said case was registered under Section 174 of Cr.P.C. During the course of investigation, it was altered into one under Sections 304(1) and 304(A) of IPC. The petitioner was arrested by the respondent on 27.07.2012 and produced before the learned XVI Metropolitan Magistrate, George Town, Chennai, with a request for remanding him to judicial custody. In the request for remand itself, the respondent submitted to the court that the petitioner had been arrested only on the allegations that he had committed offence punishable under Section 304(A) of IPC. The petitioner, immediately after remand, filed a petition in M.P.No.3129 of 2012 seeking bail. The learned Magistrate ordered notice to the respondent. The respondent submitted a response before the learned Judicial Magistrate, in which, the respondent submitted that the petitioner is accused of an offence only under Section 304(A) of IPC and, therefore, the respondent had no objection for the grant of bail to the petitioner. It was argued before the learned Metropolitan Magistrate by the learned counsel for the petitioner that the offence under Section 304(A) of IPC, for which the petitioner has been accused of and arrested, is bailable. It was also contended that since the offence is bailable, it is his right to come out on bail and the court has no discretion.
2. But, the learned Metropolitan Magistrate by order dated 30.07.2012 dismissed the said petition on the ground that offence under Section 304(i) of IPC has also been mentioned in the alteration report and the said offence is triable exclusively by a Court of Sessions.
3. According to the petitioner, thereafter, he filed an application for bail before the learned Principal Sessions Judge, Chennai, in Crl.M.p.No.7596 of 2012. That petition came up for hearing before the learned II Additional Sessions Judge, Chennai because the learned Principal Sessions Judge was not sitting on 01.08.2012. When the matter was taken up for hearing before the II Additional Sessions Judge on 02.08.2012, an Advocate by name Mr.R.C.Manoharan filed a petition seeking to intervene in the matter and opposed the grant of bail and the learned Additional Sessions Judge without passing any order has simply adjourned the matter to 03.08.2012. In those circumstances, the petitioner has rushed to this court with this original petition under Section 483 of Cr.P.C.
4. On representation made by Mr.N.R.Elango, the learned senior counsel before this court, the matter has been listed by way of lunch motion. When this matter was taken up at 2.15 p.m., the learned Additional Public Prosecutor wanted a pass-over of the matter to get instructions from the respondent police. Accordingly, the matter was taken up at 4.00 p.m. and the learned Additional Public Prosecutor has got instructions from the respondent by the time. He has also produced the case diary for the inspection of the court. [After inspection it was returned to the learned Additional Public Prosecutor in the open court itself].
5. I have heard Mr.N.R.Elango, the learned senior counsel for the petitioner and Mr.M.Maharaja, learned Additional Public Prosecutor for the respondent and also perused the records carefully.
6. The facts of the case would be as follows:-In Chennai , there is a school known as "K.C.Sankaralinga Nadar Higher Secondary School". The deceased aged 13 years was studying VIII Standard in the said school. The 1st Accused in this case is one Karthik, aged 13 years and admittedly, a juvenile and studying VIII standard in the same school. For the students of VIII standard, the period between 2.00 and 2.40 p.m. was the play time [Physical Educational Training Class]. The students were in the ground playing various games according to their wish. The petitioner was a Physical Education Teacher in-charge of the said class. According to the prosecution, he was not ava
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