Magistrate’s power to grant bail in Sessions Offences

The Kerala High Court on 1 August, 2011 in Suresh Vs. State of Kerala, 2011 (3) KLT 600 : 2011 (3) KLJ 550 : ILR 2011 (3) Ker. 682 : 2011 (3) KHC 403 held that “mere fact that the Court chose to issue only summons does not give a right to the accused to claim bail as of right on his appearance before Court on summons, particularly in a case triable exclusively by the Court of Session.

The Hon’ble MR. Justice K.T. Sankaran also held that “the question of granting bail in the cases covered by the fourth proviso to sub-section (1) of Section 437 should be considered only after giving an opportunity of hearing to the Public Prosecutor”.

# The question involved in this Bail Application is whether an accused in a case triable exclusively by the Court of Session, who appears before the Magistrate on summons in the committal proceedings, is entitled to bail as of right on the ground that only summons was issued to him, or whether discretion could be exercised by the Magistrate to deny bail to him.

The petitioners, who are accused for the offences punishable under Sections 302, 326, 328, 120B, 471 and 201 read with Section 34 of the Indian Penal Code and Sections 55(a) and 57A of the Kerala Abkari Act, appeared before the Judicial Magistrate of the First Class I, Tirur in committal proceedings, in obedience to the summons issued by the Magistrate.

They moved for bail under Section 437 of the Code of Criminal Procedure. The Bail Application was dismissed by the learned Magistrate. The petitioners filed application for bail under Section 439 of the Code of Criminal Procedure before the Sessions Court, Manjeri. The Sessions Court dismissed the application. Therefore, the petitioners have filed this Bail Application under Section 439 of the Code of Criminal Procedure.

See Also : Grant of Bail for Offence triable by Sessions Court

The petitioners contended before the Magistrate that only summons having been issued to them, the Magistrate had no jurisdiction to remand them to judicial custody. The same contention is raised by the petitioners before High Court, relying on the decisions in Sreekumar v. State of Kerala (2008 (3) KLT 748) and George v. State of Kerala (2009 (1) KLT 277).

# The question decided by the Court is whether the petitioners, who appeared before the Magistrate’s Court on summons, were entitled to be released on bail as of right, on the ground that only summons were issued to them.

# Important Provisions of Summons and Bail

Under Section 204 of the Code of Criminal Procedure, the Magistrate taking cognizance of an offence shall issue summons for the attendance of the accused in a summons case. In a warrant case, the Magistrate may issue either a warrant or a summons for causing the accused to be brought or to appear at a certain time before the Magistrate, as the case may be.

Section 209 of the Code of Criminal Procedure deals with commitment of a case to the Court of Session when the offence is triable exclusively by the Court of Session. In the proceedings under Section 209, the Magistrate shall remand the accused to custody (a) until such commitment has been made: or (b) during, and until the conclusion of the trial.

The power to remand the accused to custody is subject to the provisions of the Code relating to bail. The relevant provision relating to bail applicable in the case before the Magistrate is Section 437 of the Code of Criminal Procedure.

Section 437 applies where the accused (1) is arrested or detained without warrant by an officer in charge of a police station; or (2) appears before Court; or (3) is brought before Court. The Court referred to in Section 437 is a Court other than the High Court or Court of Session. Clauses (i) and (ii) of sub-section (1) of Section 437 Crl.P.C. provide that such person as is referred to in Section 437 shall not be released in the contingencies mentioned in the clauses.

As per clause (i) of subsection (1) of Section 437, a person shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. Clause (ii) deals with a situation where the accused was previously convicted of an offence of the nature mentioned therein.

The first and second provisos to subsection (1) of Section 437 are provisos to clauses (i) and (ii) of subsection (1). Even if there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life: he may be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm, as provided in the first proviso.

Appearance by an accused on summons is also covered by Section 437 of the Code of Criminal Procedure. It is clear from Sections 204, 244 and 251 of the Code of Criminal Procedure that the expression “appears” would apply when the Court issues summons to an accused and in compliance thereof he appears before Court.

The expression “appears” would also apply to cases where an accused surrenders or when an accused who was released on the execution of non bailable warrant, appears before Court.

Section 209 specifically mentions that remand of the accused to custody is “subject to the provisions of this Code relating to bail”.

Section 204 provides only for the issue of process. What should happen after the accused appears on process is not dealt with under Section 204.

The question of granting bail on appearance of the accused or production of the accused before Court pursuant to the process under Section 204, would be subject to Section 209 and Section 437 of the Code of Criminal Procedure.

In a case exclusively triable by the Court of Session, where an accused appears before the Magistrate in committal proceedings on summons, the Court is not powerless to remand the accused to judicial custody invoking the power under Section 209 read with Section 437 of the Code of Criminal Procedure.

Simply because the Court issuing process does not think it fit to issue a warrant, but issues only summons, it cannot be said that the power of the Court to remand the accused under Section 209 Crl.P.C, subject to the provisions of Section 437 Crl.P.C, is taken away or is not available.

The question whether the accused should be remanded or whether he should be granted bail depends upon the discretion of the Court after his appearance before Court or on his production before Court, in a case exclusively triable by the Court of Session.

The parameters to be taken note of to consider the question whether bail should be granted to such an accused need be considered only at the time when the accused appears or is brought before Court. Such a question need not necessarily be looked into while issuing process under Section 204 of the Code of Criminal Procedure.

The fourth proviso to sub-section (1) of Section 437, which provides that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under the sub-section without giving an opportunity of hearing to the Public Prosecutor, is clearly an indicator that the Court while issuing the process under Section 204 is not expected to consider the question of granting bail on the appearance of the accused or production of the accused on such process.

The question of granting bail in the cases covered by the fourth proviso to sub-section (1) of Section 437 should be considered only after giving an opportunity of hearing to the Public Prosecutor. At the time of issuing process under Section 204 of the Code of Criminal Procedure, no such hearing of the Prosecutor is contemplated. The presence of the accused also would not be there at the time of issuing process under Section 204 of the Code of Criminal Procedure. Therefore, it is clear that the question of granting bail to a person accused of an offence of the nature mentioned in the fourth proviso to sub-section (1) of Section 437 would arise only at the stage when the accused appears or is brought before Court and not at a stage prior to that.

This also would clearly lead to the conclusion that the mere fact that the Court chose to issue only summons does not give a right to the accused to claim bail as of right on his appearance before Court on summons, particularly in a case triable exclusively by the Court of Session.

# Whether bail can be granted to the petitioners under Section 439 of the Code of Criminal Procedure.

The scope of Section 439 is wider than the scope of Section 437 of the Code of Criminal Procedure. In the present case, the final report has been filed. All the accused except accused No.7 appeared before court. The petitioners are in judicial custody. The allegation is that they were the salesmen in the toddy shops. The petitioners appeared on summons before Court promptly, the appearance of the petitioners on summons is a circumstance not in support of the allegation that they were absconding. Taking into account the facts and circumstances of the case, the fact that the petitioners were the salesmen in the toddy shops and also taking into account the fact that final report was filed,the Court inclined to grant bail to the petitioners on stringent conditions.

# Prosecution Case

On 5.9.2010 at about 6.25 PM, a dead body of a male aged about 35 years was found at the platform of Kuttippuram Railway Station. A Crime was registered at Kuttippuram Police Station for unnatural death. The deceased was identified as Dhanasekharan, a native of Tamil Nadu. The dead body was subjected to postmortem examination. It was revealed that the deceased died due to consumption of adulterated toddy from a toddy shop at Kuttpipuram.

Subsequently, it came to the notice of the police that fourteen other persons also died as a result of consumption of adulterated toddy from the toddy shops at Kuttippuram, Beeranchira and Perassannur. The samples of toddy kept in these toddy shops were collected and sent for analysis. The report of analysis showed that the toddy contained methyl alcohol, a noxious substance.

Seven Crimes were registered at Kuttipuram Police Station. Six Crimes at Tirur Police Station and one Crime at Kolathur Police Station were also registered. The Deputy Superintendent of Police, Tirur, who conducted the investigation clubbed the crime cases in Kuttippuram and Tirur Police Station and the Crime Branch took over the investigation.

The investigation revealed that the toddy shops at Kuttippuram, Beeranchira and Perassannur were being conducted by one Dravyan. accused No.1, though the licensees of the toddy shops at Kuttippuram and Perassannur were accused Nos.2 and 3. The salesmen in the toddy shops, the licensees and the persons who conducted the shops were all made accused in the case. The petitioners are the authorized salesmen of the three toddy shops referred to above.

The prosecution case is that accused Nos.1 to 18 entered into a criminal conspiracy and they mixed methyl alcohol, a poisonous substance, with toddy, in order to achieve wrongful gain and with the knowledge that such mixture of toddy is harmful to human beings. A total number of fifteen persons died as a result of the hooch tragedy, referred to above. Three persons lost their eyesight. It is alleged that toddy mixed with methyl alcohol was being sold in the shops under two different names as “chethu kallu” and ‘speed kallu”.

During the investigation, 20 out of the 24 accused persons were arrested. Accused No.7 has not been arrested so far. It is alleged that the petitioners were absconding. After completing the investigation, charge sheet was filed before the Court of the Judicial Magistrate of the First Class, Tirur. The Petitioners appeared before the Magistrate’s court on receipt of summons.

Advocates T. Krishnan Unni (Sr.), P.K. Mohanan appeared for the petitioners and Public Prosecutor V. Tekchand for the respondents.

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