IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 Crl.MC.No. 4792 of 2010() ------------------------ CP.95/2010 of JUDL. FIRST CLASS MAGISTRATE COURT, MANNARKKAD .................. PETITIONER / ACCUSED NO. 5: --------------------------------------------- NOUSHAD @ MONU @ NOUSHAD ALI, S/O.MUHAMMED @ EPPU, MANJERI, MALAPPURAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT / STATE: --------------------------------- THE STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER, MANNARKKAD POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, KOCHI-31 BY PUBLIC PROSECUTOR SRI. I.V. PRAMOD THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/12/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.M.C.NO.4792 OF 2010 --------------------------------------------- Dated 20th December, 2010 O R D E R Petitioner, the fifth accused in C.P.95/2010 on the file of Judicial First Class Magistrate's Court, Mannarkkad was granted bail on 1/10/2010, when he appeared and filed an application for bail. Subsequently, by Annexure-A order dated 30/11/2010, learned Magistrate canceleld the bail holding that while considering the application for bail, by oversight, Magistrate failed to note that the Court has no jurisdiction to grant bail to an accused alleged to have committed. for the offence punishable under Section 302 of Indian Penal Code and he realised the mistake only later and as the bail granted Crmc 4792/10 2 was not proper , learned Magistrate issued arrest warrant. Petition is filed under Section 482 of Code of Criminal Procedure to quash Annexure-A order. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Petitioner was granted bail as per order dated 1/10/2010. Offences alleged are under Sections 143, 147, 148, 109, 120 B, 436, 427, 307 and 302 read with Section 149 of Indian Penal Code. Bail granted was not cancelled. Instead as provided under Section 437(5) of Code of Criminal Procedure recording that it is necessary recording that bail was granted by mistake, learned Magistrate directed arrest of the petitioner by issuing warrant. 4. Learned counsel appearing for the Crmc 4792/10 3 petitioner pointed out that granting of bail by the learned Magistrate is not illegal as the Magistrate can grant bail even for offences exclusively triable by the Sessions Court. The position cannot be disputed. Learned counsel also pointed out that the other accused were also granted bail. This aspect is also not disputed. If the prosecution has a case that the bail granted to the petitioner is liable to be cancelled on any valid ground, it is upto them to approach either the Magistrate or challenge the order granting bail before appropriate Court or seek an order to cancel the bail. Learned Magistrate was not justified in issuing warrant to produce the accused for the reason that bail was granted by mistake. Annexure-A order shows that learned Magistrate has no case that petitioner in any way hampered the Crmc 4792/10 4 investigation. There is no case that during bail he either tampered or attempted to tamper any evidence or threatened or intimidated any witness from disclosing facts known to them or is attempting to run away. In fact before passing Annexure-A order petitioner was not given any opportunity to show cause why the bail granted shall not be cancelled. In such circumstances, Annexure-A order can only be quashed. Petition is allowed. Annexure-A order is quashed. It is made clear that quashing of the order will not affect the right of the investigating officer to seek cancellation of bail or to challenge the order granting bail. M.SASIDHARAN NAMBIAR, JUDGE. uj.