IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 24TH JULY 2009 / 2ND SRAVANA 1931 Bail Appl..No. 4023 of 2009 CRIME NO.562 OF 2006 OF KAYAMKULM POLICE STATION PETITIONER: 10TH ACCUSED: ------------------------------ VINEETH SOMARAJAN @ AMBADI, S/O.SOMARAJAN, SOBHANALAYAM, ERVUA EAST, ERUVA P.O., ALAPPUZHA. BY ADV. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.SURYA SASI RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KAYAMKULAM POLICE STATION, KAYAMKULAM. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 4023 OF 2009 ------------------------------------------------------ Dated this the 24th July, 2009 O R D E R Accused No.10 in Crime No.562 of 2006 of Kayamkulam Police Station has filed this Bail Application under Section 438 of the Code of Criminal Procedure. 2. The offences alleged against the petitioner and the other accused persons are under Sections 143, 144, 147, 148, 149, 323, 324, 302 and 120B of the Indian Penal Code, Section 7(b) and 27(2) of the Arms Act and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. 3. Learned Public Prosecutor submitted that the charge was laid in the case on 9.12.2008. It would appear that non-bailable warrant was issued by the Judicial Magistrate of the First Class, Kayamkulam against the petitioner. The learned Public Prosecutor submitted that the appropriate remedy of the petitioner would be to move the court which issued the non-bailable warrant. B.A. NO. 4023 OF 2009 :: 2 :: 4. Learned counsel for the petitioner relied on the decision of the Supreme Court in Bharat Chaudhary v. State of Bihar ( (2003) 8 SCC 77 = (2003 (3) KLT 956 (SC)) and contended that an application for anticipatory bail is maintainable even after the charge sheet is filed. In paragraph 7 of the judgment, the Honourable Supreme Court held thus: “From the perusal of this part of S.438 of the Crl.P.C., we find no restriction in regard to exercise of this power in a suitable case either by the Court of Sessions, High Court or this Court even when cognizance is taken or charge sheet is filed. The object of S.438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a Court has either taken cognizance of the complaint or the investigating agency has filed a charge sheet, would not by itself, in our opinion, prevent the concerned courts from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the concerned courts while entertaining a petition for grant of anticipatory bail and B.A. NO. 4023 OF 2009 :: 3 :: the fact of taking cognizance or filing of charge sheet cannot by themselves be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts ie., the Court of Sessions, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under S.438 of the Crl.P.C. even when cognizance is taken or charge sheet is filed provided the facts of the case require the Court to do so.” The Supreme Court in Bharat Chaudhary's case also held that the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra ((1996) 1 SCC 667) could not be read as prohibiting the grant of anticipatory bail under Section 438 of the Code of Criminal Procedure in a case where charge sheet is filed. 5. In (1996) 1 SCC 667, it was held that ordinarily the Court dealing with anticipatory bail application should not substitute itself for the original court which is expected to deal with the offence and it is the latter court which has to consider whether, having regard to the material placed before it, the accused person is entitled to bail. 6. It is true that going by the decision in Bharat Chaudhary's B.A. NO. 4023 OF 2009 :: 4 :: case, there is no bar in entertaining an application under Section 438 of the Code of Criminal Procedure after the charge sheet is filed. However, it is not a general rule that the power under Section 438 of the Code of Criminal Procedure could be exercised in each and every case, where charge sheet is filed. Exceptional circumstances may arise in which exercise of the power by the Sessions Court or the High Court under Section 438 may be warranted and the fact that the charge sheet was filed in the case would not be a bar to entertain such an application under Section 438 of the Code of Criminal Procedure. Ordinarily, when a charge sheet is filed, it is for the Court which has to try the case that has to deal with the application for regular bail. Whether bail should be granted in the facts and circumstances of the case, has to be considered by the Court which is expected to try the case. 7. In Bharat Chaudhary's case, the court which took cognizance of the offence had not issued non-bailable warrant against the accused persons. In the present case, the police registered the case on 1.10.2006. It is stated in the Bail Application that the petitioner went abroad on 9.2.2007. Except the petitioner (accused No.10), all the other accused persons were arrested and B.A. NO. 4023 OF 2009 :: 5 :: they were released on bail by the Sessions Court. The petitioner has not stated the circumstances under which non-bailable warrant was issued against him. That non-bailable warrant was issued by the trial court is not disclosed in the Bail Application. 8. It has become a usual practice to file applications for anticipatory bail before the High Court even in cases where the trial courts are faced with situations in which the accused persons abscond for years together. When such persons get information that they would be arrested in execution of non-bailable warrants, they rush to the High Court. The High Court would not be in a position to assess the situation correctly unless the records of the cases are called for from the lower courts. The Public Prosecutor would not get correct instructions in the matter, as they usually get in cases where charge sheets are not filed. It is not desirable for the High Court to call for the records from the trial courts to deal with such applications for anticipatory bail. If the records are called for, it would cause further delay in the disposal of cases. It is not as if the accused persons in such cases are without remedy. They can very well approach the Courts which issued the non-bailable warrants and apply for re-calling the warrant and for grant of bail. Sometimes, the B.A. NO. 4023 OF 2009 :: 6 :: trial courts would consider the applications for bail in such cases after a few days, which may result in the detention of such accused persons during those days. Probably, that is the reason why they file applications for anticipatory bail before the High Court. Sometimes, the correct facts of the case may not be available to such persons. In some cases, they suppress the real facts and put forward untrue contentions. If the bail applications are dealt with by the respective trial courts, the correct facts may be available before them. 9. It is a reality that some persons are capable of avoiding arrest even if non-bailable warrants are issued against them. It is also not uncommon that the police personnel would afford help to such persons and return the non-bailable warrants unexecuted stating that the person concerned was not found at his residence or the place of his work. Such incidents provide a fertile soil for corruption. Situations are galore where the trial courts become helpless and they would have no other alternative but to issue orders to repeat the non-bailable warrants. At the final stage where the accused persons concerned are sure of being arrested, they move for anticipatory bail before the High Court. It is also well known that B.A. NO. 4023 OF 2009 :: 7 :: instances are not uncommon where the police people concerned may grant a short time to such accused persons to move for anticipatory bail. The High Court cannot afford to be unaware of the realities in life and of what happens at the grass root level. 10. Normally it should be left to the discretion of the court dealing with the case to consider the question of granting bail. That does not mean that the High Court or Court of Session has no power to deal with an application under Section 438 of the Code of Criminal Procedure in a case where charge sheet was filed. As held in Bharat Chaudhary's case ((2003)8 SCC 77), in a “suitable case” such power can be exercised. 11. Learned counsel for the petitioner pointed out that as per the order dated 6.11.2008, the Court of the Additional Sessions Judge I, Mavelikkara, granted regular bail to accused Nos.1 to 3 and 6. That shows that the petitioner can very well approach the learned Sessions Judge and apprise that Court about the order dated 6.11.2008, which was passed even before the charge sheet was filed. B.A. NO. 4023 OF 2009 :: 8 :: 12. There is yet another circumstance which is to be taken note of. There is an allegation that the accused persons committed offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Section 18 of the said Act takes away the power of the Sessions Court as well as the High Court to entertain an application under Section 438 of the Code of Criminal Procedure. 13. I do not find any exceptional circumstances in the present case justifying exercise of jurisdiction under Section 438 of the Code of Criminal Procedure, particularly when the offences include an offence in respect of which Section 18 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act would apply. 14. The apprehension of the petitioner is that if he appears before the trial court, he would be remanded to judicial custody. In Biju v. State of Kerala (2007 (2) KLT 280), Justice A.K.Basheer, after noticing the practice that is being followed by some learned Magistrates (vide paragraph 16) held at paragraph 18 thus:: B.A. NO. 4023 OF 2009 :: 9 :: “18. As mentioned earlier, criminal courts should always be careful while passing orders on bail applications which in effect deal with personal liberty. In cases where the court decides to send an accused to custody pending trial, it must be ensured that the court applies its mind judicially and judiciously with particular reference to the facts and circumstances of the case. The mere fact that the accused had failed to respond to a summons or that the court had to issue non-bailable warrant to compel his presence will not ipso facto empower the criminal court to remand the accused to custody as a punitive measure when he appears before the court on his own volition or is produced in execution of the warrant. The bail application that may be moved on his behalf has to be considered and orders should be passed on the same day itself since personal liberty of an accused cannot be curtailed in a whimsical or disdainful manner.” I am in respectful agreement with the dictum laid down in Biju v. State of Kerala. The Bail Application is accordingly dismissed with liberty to the petitioner to move for regular bail and to apply for recalling the warrant for arrest. If the petitioner files an application for bail, the B.A. NO. 4023 OF 2009 :: 10 :: court shall make every endeavour to consider the same on the same date itself. The court shall also consider all aspects of the matter, in the light of the dictum laid down in Biju v. State of Kerala (2007 (2) KLT 280). (K.T.SANKARAN) Judge ahz/