IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Crl.MC.No. 671 of 2009(B) ------------------------------------ (AGAINST THE ORDER DTD. 11/02/2009 OF J.F.M.C-II, THIRUVANANTHAPURAM IN CRIME NO. 54/2009 OF VALIYATHURA POLICE STATION – CASE NOW PENDING BEFORE C.J.M. COURT, THIRUVANANTHAPURAM) .................. PETITIONER/ ACCUSED NO.1: ------------------------------------------- REGHU R.@ REGHU MADATHIL, (A.R.P.REGHU), AGED 48 YEARS, S/O.LATE RAMAN PILLAI, MADATHIL HOUSE, KURUVIPUZHA, KAVANAD P.O., KOLLAM. BY ADV. MR.V.PHILIP MATHEWS. RESPONDENT: --------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY MR. V.G. GOVINDAN NAIR, DIRECTOR GENERAL OF PROSECUTIONS. THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.N. KRISHNAN, J ----------------------- CRL.M.C.No. 671 OF 2009 --------------------------------- Dated this the 19th day of February, 2009 O R D E R This Crl.M.C is filed for a direction or order recalling the warrant issued against the petitioner based on Crime No. 54/2009 of Valiayathura Police Station, Thiruvananthapuram and for a declaration that the issuance of non bailable warrant against the petitioner is illegal and unenforceable and for a further direction not to take the petitioner in custody or arrest him without a valid order cancelling the bail already granted. 2. Heard the learned counsel for the petitioner as well as the Director General of Prosecutions. I had also obtained a report from the Chief Judicial Magistrate, Thiruvananthapuram wherein it is stated that Valiyathura Police Station Crime 54/2009 was registered by the Assistant Sub Inspector of Police, Valiyathura at 8.00 a.m on 7.2.2009 based on the letter dated 7.2.2009 of the Inspector, CISF Shift in charge at Airport. The allegation was that two passengers namely Ramanpillai Reghu and Ahammed Muhammed Al-Jalak had indulged at about 3.45 a.m on 7.2.2009, CRL.M.C.No. 671 OF 2009 -2- in untruly behaviour in the Airport and as they were under intoxication abused and manhandled many passengers and when the CISF Shift in-charge and other personnel interfered, he was also beaten up by the two. It is based on the report Crime 54/2009 was registered under Sections 341, 323, and 294(b) r/w 34 of the IPC. It is revealed that Section 332 was also added which is a non bailable offence later. But on the basis of the earlier registration under sections 341, 323 etc., the police themselves had granted bail. Thereafter by another report of the Assistant Commissioner, DCRB the new investigating officer required arrest of both accused persons and so arrest warrants were prayed to be issued to arrest those accused. Based on that report, the Judicial First Class Magistrate -II, Trivandrum had issued non bailable arrest warrants against those persons on 11.2.2009. The non bailable warrant was executed against the 2nd accused and a remand report was filed. The Chief Judicial Magistrate Court to where it was transmitted had granted bail to the 2nd accused on 12.2.2009. It was after hearing the learned Deputy Director of Prosecution as well. It was also reported by CRL.M.C.No. 671 OF 2009 -3- Chief Judicial Magistrate that no specific order was seen passed by the Chief Judicial First Class Magistrate Court - II in cancelling the bail granted to the accused by the police while the case was on investigation for the offences under Sections 341, 323, 294(b) r/w 34 IPC. It was also reported that without any specific order cancelling the bail, the NBWs were issued against the two accused. So the sum and substance of the materials available now would reveal that both the accused were accused of offences which were bailable to start with and subsequently the non bailable offence under Section 332 of the IPC was also incorporated. The learned Judicial First Class Magistrate II, Trivandrum without cancelling the bail granted or without an application being moved by the police for cancellation of the bail on the ground known to law issued non bailable warrant for the arrest of the accused. Whether that is a proper act is to be decided in this matter. 3. Similar issue had come up before this court for consideration in many cases and the latest decision on the point is reported in Thomas v. State of Kerala [2008 (3) KLT 248]. CRL.M.C.No. 671 OF 2009 -4- It was a case where non bailable offence under Sections 450, 363, 354 and 395 IPC was originally there in, at the time of the registration of the crime it was later deleted by the investigating officer and bail has been granted and subsequently at the intervention of this court another investigating officer incorporated those non bailable offences as well and then the application was moved for cancellation of the bail. The Sessions court cancelled the bail and it was against that decision the matter come up before the High Court. 4. This Court after considering the case law on the subject held as follows: “But merely because a grave offence has been incorporated after the enlargement of the accused on bail at a time when the offence was a minor offence, that by itself cannot be a circumstance to cancel the bail since for cancellation of the bail, the conditions for doing so should be present. There is no case for the Investigating Officer that the revision petitioner, after he was enlarged on bail, had abused the liberty granted to him by the Court or had influenced or intimidated the prosecution CRL.M.C.No. 671 OF 2009 -5- witness or had attempted to tamper with the evidence for the prosecution or had made himself scarce so as to give a reasonable suspicion that he had jumped bail and fled from justice. Bail granted to an accused person can be cancelled only if he has been guilty of breach of the bail conditions or if he has abused the liberty granted to him. Hence the proper course for the Investigating Officer was not to seek cancellation of the bail, but instead, was to move the Court for a direction to the accused to again apply for bail after the incorporation of the graver offence. Accordingly, the order dated 19.4.2008 passed by the Sessions Court, Kottayam is set aside and the petitioner is directed to move the appropriate court for regular bail for the above crime which now stands registered also for offences punishable under Sections 450, 363, 354 and 395 I.P.C” So from this decision it is very clear that when bail is granted to a person the appropriate remedy is to apply to the court for cancellation of the bail on the ground known to law. The mere inclusion of a non bailable offence after the granting of bail will not give the right to issue non bailable warrant to any authority. CRL.M.C.No. 671 OF 2009 -6- Therefore in this case it is also to be stated the learned Chief Judicial Magistrate Court II did not cancel the bail but straight away issued non bailable warrant which is also not a proper practice that has to be resorted to. Therefore the issuance of non bailable warrant, just because of an addition of a non bailable offence in a case where the accused is already on bail is not proper and it is not supported by any provisions of law and so the issuance of such non bailable warrant cannot be sustained and therefore it is set aside. 5. Now the next question is what else is to be done further. Just like the case which is referred by me in detail now at any rate the petitioner is faced with an allegation of having committed a non bailable offence under Section 332 of the IPC. It is desirable to direct him to surrender before the Chief Judicial Magistrate Court , Trivandrum where the matter is pending now and seek for bail. The direction to be given etc. can be decided by the Chief Judicial Magistrate after hearing all concerned. The learned counsel for the petitioner in fairness submits the readiness of the accused to make himself available for CRL.M.C.No. 671 OF 2009 -7- interrogation before the concerned Investigating Officer. In the result, the Crl.M.C is disposed of as follows: 1. The non bailable warrant issued against the petitioner is quashed. 2. The petitioner is directed to surrender before the Chief Judicial Magistrate Court-II, Trivandrum and move for regular bail on or before 26.02.2009. The Magistrate shall consider the bail application on that day itself and pass appropriate orders. The Crl.M.C is disposed of accordingly. M.N. KRISHNAN,JUDGE vkm