IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 2ND NOVEMBER 2009 / 11TH KARTHIKA 1931 Crl.MC.No. 3503 of 2009 --------------------------------------- CRIME 656/2009 of CHERPU POLICE STATION .................... PETITIONER/ACCUSED: M/S.DHANASREE SERVICE SOCIETY, C/O.PHOTO WIDE, K.P.3/502A BUILDINGS, KUMARANALLOOR.P.O,KOTTAYAM-16, REP.BY ITS SECRETARY B.UNNIKRISHNAN, AGED 42 YEARS, S/O.BALAKRISHNAPILLAI S/O.BALAKRISHNAN PILLAI, ERAVIMANGALAM HOUSE, MUTTAMBALAM VILLAGE, P.O.MANGANAM, KOTTAYAM DIST. BY ADV. SRI.M.R.VENUGOPAL SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.3503 of 2009 -------------------------- ORDER By Annexure-B order, Sub Judge, Thrissur granted anticipatory bail to 11 accused involved in Crime No. 656/2009 of Cherpu Police Station, registered for the offences under Sections 294(a) and 420 read with Section 34 of Indian Penal Code and Sections 4, 5 and 6 of Prize Chits and Money Circulation Scheme (Banning) Act, 1978. 2. In paragraph 5 of Annexure-B order, learned Sessions Judge observed that in this case there is no allegation that any of the subscribers has to pay something more or has to forego something from his subscription in order to avail any benefit offered as prize and in the particular case, at the most, the Foreman is giving a concession from the Foreman's Commission for which the Foreman is not availing or obtaining anything more from the subscribers than the normal Foreman's Commission. Based on these observations, it was found that there is absolutely CRMC 3503/09 2 nothing to show that the present transaction would come within the purview of the Act. In paragraph 6 of the order, it was also found that there is absolutely nothing to show that the Foreman in this case is realising more amounts than what is allowed as Foreman's Commission. This petition is filed under Section 482 of Code of Criminal Procedure to quash the said observations contending that they are uncalled observations at the preliminary stage of investigation and that too in a petition under Section 438 of Code of Criminal Procedure. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. Learned counsel relied on the decision of the Apex Court in Niranjan Singh v. Prabhakar Rajaram Kharote (AIR 1980 SC 785), wherein, the Honourable Supreme Court was constrained to make observations that the Trial Judge shall not be influenced by what their Lordships have said in the judgment and shall confine himself to the evidence in the case, when adjudging the guilt of the accused, for the reason that a detailed examination of the evidence was done by the Sessions CRMC 3503/09 3 Judge while making certain observations on the probabilities of the case. Reliance was also placed on the decision of the Apex Court in Jonathan Nitin Brady v. State of West Bengal (2008 KHC 4909), wherein, it was held that the High Court had made certain observations which are uncalled or unwarranted at the stage of the case, cautioning that High Court ought not have made the said observations at the preliminary stage of the investigation of the case, which may have prejudice to the defence of the appellant during trial of the case. Their Lordships made it clear that the said observations shall not be taken into consideration by the trial court at any stage of the proceedings of the case. 5. Argument of the learned counsel is that the observations in paragraphs 5 and 6 of Annexure-B order may be taken as conclusive findings by the trial court, which would prejudice the case. Any observation on the merits of the case in the order, granting or refusing bail or anticipatory bail cannot be taken as binding findings of the higher court at the time of trial. Trial Judge has to decide the case based on the legal CRMC 3503/09 4 evidence before it. Any observation in the order granting or refusing bail or anticipatory bail shall not be taken as binding findings by the Trial Magistrate. In such circumstances, I do not find it necessary to quash the observations in Annexure-B order. Suffice to make it clear that the Magistrate shall be uninfluenced by the observations made in Annexure-B order at the time of trial and has to adjudge the guilt or not based only on the evidence before him. Petition is disposed. 2nd November, 2009 (M.Sasidharan Nambiar, Judge) tkv