IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.MC.No. 1729 of 2009() ------------------------- CMP.1431/2009 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... (CRIME NO.68/2009 OF IRITTY POLICE STATION) PETITIONER(S): ACCUSED: ----------------------------------------- 1. NASSAR @ SHAIK NASSAR, AGE 39/09 S/O.B.K.KADER HAJEE ,SHAIKH PALACE, AYYAPPAN KAVE, VILAKKOD.(A1) 2. K.S.VINISH, AGED 32 YEARS, S/O.SARASSAMMA, ANANDU NIVAS, KAKKEYANGAD.(A2) 3. SADIQ P., S/O.UMMER HAJEE, SAJIDA MANZIL,MUYYAKKUNNE.(A4) 4. BIJU K., S/O.GOVINDAN, SREE NILAYAM, MUUUAKUNNE,PERAVOOR.(A5) BY ADVS. MR.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI. RESPONDENT(S): COMPLAINANT: ---------------------------------------------------- STATE OF KERALA REP BY INSPECTOR OF POLICE, IRITTY POLICE STATION, REP BY THE PUBLC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. AMJAD ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.Sasidharan Nambiar, J. -------------------------- Crl.M.C.No.1729 of 2009 -------------------------- ORDER Though the petition is filed by Accused Nos.1, 2, 4 and 5 in Crime No.68/2009 of Iritty Police Station, learned counsel appearing for the petitioners submitted that relief is restricted to first petitioner/first accused alone. 2. Under Annexure-A1 order, petitioners were granted anticipatory bail on 18.3.2009 on conditions. Petitioners were directed to surrender and apply for regular bail within one month. Petitioners thereafter surrendered and were released on regular bail by the learned Magistrate on 18.4.2009. One of the conditions for granting the bail was that the accused shall appear before the Investigating Officer on all Wednesdays in between 10 a.m. and 11 a.m. until further orders. On 30.4.2009, the Investigating Officer filed a report before the learned Magistrate stating that CRMC 1729/09 2 the accused did not appear as directed by the learned Magistrate while granting bail. Learned Magistrate thereafter issued notice to the accused to show cause as to why their bail cannot be cancelled. Though first petitioner filed an objection, under Annexure-A4 order dated 16.5.2009, the learned Magistrate cancelled the bail. This petition is filed under Section 482 of Code of Criminal Procedure to quash that order. 3. Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 4. As rightly pointed out by the learned counsel appearing for the petitioners, a bail can be cancelled only as provided under Section 439 of Code of Criminal Procedure and that power is vested with the High Court or the Court of Sessions. As held by this Court in Thulaseedharan Nair v. State of Kerala (ILR 2006 (3) Kerala 360), Parliament has not chosen to empower the Magistrate for CRMC 1729/09 3 cancellation of bail and instead that power was granted only to the superior courts, the Court of Sessions and the High Court. Therefore, learned Magistrate was not competent to cancel the bail under Section 439 of Code of Criminal Procedure. 5. Even if it is taken that learned Magistrate was exercising the powers under sub-section (5) of Section 437 of Code of Criminal Procedure, which enables any court, which has released a person on bail, to direct to arrest and commit such person to custody, if he considers it necessary, the order shows that learned Magistrate has virtually cancelled the bail for the reason that accused did not comply with the conditions in the bail order and directed the Investigating Officer to arrest them for the purpose of investigation. What is provided under sub-section (5) of Section 437 is to direct such person be arrested and to commit him to custody and not a direction to the Investigating Officer to arrest the person for the purpose of CRMC 1729/09 4 investigation. In such circumstances, petition is allowed. Annexure-A4 order as against the first petitioner is quashed. 1st July, 2009 (M.Sasidharan Nambiar, Judge) tkv