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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P.N. PRAKASH, J.
Pillappan @ Ravikumar – Petitioner
Versus
State Rep. by the Inspector of Police, West Police Station, Kumbakonam – Respondent
Crl. R.C. (MD) No. 148 of 2018 and Crl. M.P. (MD) No. 1954 of 2018
Decided On : 18-04-2018
Penal Code, 1860 – Sections 309, 446, 419 and 363 – Code of Criminal Procedure, 1973 – Sections 317,437 – Cancellation of Bail – Criminal Revision Case has been filed seeking to call for the records of the Judicial Magistrate No. II, Kumbakonam in C.C. and to set aside the order – Case raises a seminal issue qua the power of the Court to cancel the bail of an absconded accused in a case involving a bailable offence. – Held, If an accused on bail, be it in a case involving a bailable or non-bailable offence, (whether granted by the superior Court or by the Magistrate), does not appear on a hearing date and no petition is filed for dispensing with his presence, non-bailable warrant can be issued under Sec. 89 of the Code. – On the appearance of the accused or on his production by the police, what is required to be given is, an opportunity to him to explain as to why he did not appear from that particular date onwards. If he gives a satisfactory explanation, he can be let off by recalling the warrant. – If his explanation is not satisfactory, the Magistrate/Court is required to record the reasons and give a finding that the bond has been forfeited. – On such finding, the bail bond gets automatically cancelled. – Thereafter, the Magistrate/Court cannot release him on his own bond in view of the bar under Sec.446-A(b). – He may be released under the proviso to Sec.446-A(b) on his executing a bond with fresh sureties, or, he may be remanded to custody under Sec. 309 of the Code – If he is so remanded to judicial custody, he should apply for fresh bail. Thereafter, the Magistrate/Court can issue notice under Sec. 446 of the Code to the sureties separately for payment of penalty. In the bail application filed afresh by the accused either under Sec.436 or 437 or 439 of the Code, the Court will have to consider not only the usual parameters for grant of bail but also the additional factor, viz. his abscondence. – Petitioner has been in custody since 20.02.2018 in a case involving bailable offences, which, in the opinion of this Court, is a sufficient penalty for his having been in abscondence. – Hence, the petitioner is directed to be released on bail on condition that he shall appear before the Trial Court at 10.30 a.m. everyday until further orders, on conditions of bond and sureties as determined by the Trial Court in order to ensure his continued participation in the trial. – Criminal Revision Case Disposed of.
1. This Criminal Revision Case has been filed seeking to call for the records of the Judicial Magistrate No. II, Kumbakonam in C.C. No. 642 of 2007 and to set aside the order dated 20.02.2018.
2. This case raises a seminal issue qua the power of the Court to cancel the bail of an absconded accused in a case involving a bailable offence.
3. Shorn of the minute details, the facts germane for deciding this case are as under:
3.1 On 07.03.2002, four accused abducted the de facto complainant posing themselves as CB-CID sleuths. The police rescued the de facto complainant from the said abductors and registered a case in Cr. No. 88 of 2002 under Sections 419 and 363 IPC and arrested the accused.
3.2 In this petition, we are concerned with the case of A4 (Pillappan @ Ravikumar) who is the petitioner herein. The petitioner was produced before the Judicial Magistrate No. II, Kumbakonam on 07.03.2002 and was remanded to custody. As the offences for which he was arrested were bailable, the petitioner was released on bail by the Judicial Magistrate No. II, Kumbakonam on 11.03.2002, on condition that he should execute a bond with two sureties. After completing the investigation, the police filed the final report on 17.10.2007 against A.1 to A.4 for the offences under Sections 419 and 363 IPC before the Judicial Magistrate No. II, Kumbakonam and the same was taken on file as C.C. No. 642 of 2007 on 19.10.2007.
3.3 On issuance of process, the petitioner appeared before the Trial Court on 14.06.2010 and was continuously appearing on various dates till 27.02.2013. On 27.02.2013, the petitioner did not appear before the Trial Court nor was a petition under Sec. 317, Cr.P.C. (hereinafter referred to as the Code) filed for condoning his absence. Hence, a non-bailable warrant was issued by the Magistrate for securing his presence. On 11.07.2013, the petitioner surrendered and the warrant was recalled under Sec. 70 of the Code. Again, on 14.12.2015, the petitioner did not appear before the Trial Court and hence, the Trial Court issued non-bailable warrant against him.
3.4 The non-bailable warrant was pending for three years and ultimately, the petitioner was apprehended by the police upon execution of the non-bailable warrant, and was produced before the Magistrate on 20.02.2018. On the date of his production, the Magistrate gave him a notice asking him to show cause as to why his bail should not be cancelled on the ground that he had violated the conditions of bail by not appearing on the hearing dates.
3.5 In response, the petitioner replied that he was not aware of the warrant against him. The Magistrate recorded the explanation given by the petitioner and passed the following order:
“Heard the accused. Records perused. Notice given to accused. He stated that he does not know the pendency of warrant. The said reason is unacceptable as the accused was arrested and released on bail and he executed a bail bond for his appearance. Having executed bail bond for his appearance and having failed to appear as per the conditions of the bail bond. The case is pending for more than 10 years due to the pendency of NBW against the accused. Hence, the said reason is not satisfactory. No sufficient cause is shown. Hence, bail is cancelled.”
3.6 The petitioner filed a separate bail application in Crl. M.P. No. 2178 of 2018 seeking bail which was dismissed by the Magistrate on 21.02.2018. Challenging the order dated 20.02.2018 cancelling the bail, the petitioner has filed the present revision petition.
4. Heard Mr. Karunanidhi, learned counsel for the petitioner and Mrs. S. Bharathi, learned Government Advocate (Crl. Side) appearing for the respondent-State.
5. Mr. Karunanidhi, learned counsel for the petitioner did not seriously dispute the above summation of facts. He contended that the Magistrate has no power to cancel the bail in a case involving bailable offences and that only the Sessions Court / High Court can cancel the bail in exercise of the power under Sec
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