IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 Bail Appl..No. 1176 of 2010 S.T.NO.281 OF 2008 ON THE FILE OF THE COURT OF THE CHIEF JUDICIAL MAGISTRATE, THODUPUZHA. PETITIONER/ACCUSED: ---------------------------------- L.WILSON, THE CHAIRMAN, MARY MATHA COLLEGE ENGINEERING & TECHNOLOGY, PALIYADU, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. SRI.K.MUHAMMED SALAHUDHEEN RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.V.GEORGE, S/O. VARKEY, KAITHAVELIL HOUSE, NEDIYASALA POST, THODUPUZHA. SRI.M.SASINDRAN,(AMICUS CURIAE) THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/02/2010, ALONG WITH BA NO.1179 OF 2010, THE COURT ON 24/02/2010, PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS.1176 & 1179 OF 2010 ------------------------------------------------------ Dated this the 24th day of February, 2010 O R D E R The question involved in these Bail Applications is whether the accused, who is involved in an offence under Section 138 of the Negotiable Instruments Act, which is a bailable offence, is entitled to bail as of right when he violated the terms of granting bail and when it was found that he was absconding for several years. 2. The petitioner is the accused in two cases on the file of the Court of the Chief Judicial Magistrate, Thodupuzha, wherein the offence alleged against him is under Section 138 of the Negotiable Instruments Act. 3. In S.T. No. 66 of 2007, summons was served on the petitioner in March 2007. He did not appear on summons. Non bailable warrant for his arrest was issued. He could not be arrested. Steps under Sections 82 and 83 of the Code of Criminal Procedure were taken. While so, on 9-8-2007, the petitioner surrendered B.A. NOS.1176 & 1179 OF 2010 :: 2 :: before court. He was granted bail. Later, he violated the conditions of bail and absconded. Again, proceedings were taken under Sections 82 and 83. On 20-9-2008, the case was transferred to the Register of long pending cases as L.P. No. 52 of 2008. Later, the petitioner surrendered before Court on 24-3-2009. He was granted bail and the case was taken to the pending file as S.T. No. 146 of 2009. Even thereafter, the petitioner absconded. Neither the petitioner nor his counsel did appear. Again, non bailable warrant was issued and steps were taken under Sections 82 and 83 of the Cr.P.C. The case was again transferred to the Long Pending Register as L.P.No. 3 of 2010. The petitioner surrendered before Court on 16-2-2010 and sought for bail. The case was taken up as pending file in S.T. No. 70 of 2010. The learned Chief Judicial Magistrate dismissed the application for bail holding that “no explanation was offered by the petitioner for his non appearance for trial.” The court also held that there was wilful negligence on the part of the petitioner in the matter of appearance before court. 4. In S.T. No. 281 of 2008 also, the petitioner did not appear. Non bailable warrant was issued and steps were taken under B.A. NOS.1176 & 1179 OF 2010 :: 3 :: Sections 82 and 83 of the Code of Criminal Procedure. The petitioner surrendered before Court and bail was granted. After several adjournments sought for settling the case, the trail was commenced. Evidence was taken. The case was posted on 22-8- 2008 for questioning the petitioner under Section 313 of the Code of Criminal Procedure. The petitioner absconded. Non bailable warrant was issued. Steps were again taken under Sections 82 and 83 Cr.P.C. The petitioner surrendered before Court on 16-2-2010 and sought for bail. The learned Magistrate dismissed the application for bail. 5. In the above facts and circumstances, the petitioner has filed the Bail Applications seeking bail. 6. The learned counsel for the petitioner contended that the offence being bailable, the learned Magistrate was not justified in dismissing the Bail Application. He relied on the decision in Manoj Kumar V. State of Kerala: 1990 (1) KLT 120. The learned Public Prosecutor contended that Section 436 (2) of the Code of Criminal Procedure empowers the court to deny bail in the facts and B.A. NOS.1176 & 1179 OF 2010 :: 4 :: circumstances of the present cases. 7. I also heard Sri. M. Sasindran, Advocate, who ably assisted the court as amicus curiae. 8. Section 436 of the Code of Criminal Procedure reads as follows: “436. In what cases bail to be taken: (1) When any person other than a person accused of a non- bailable offence is arrested or detained without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail: Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided: Explanation: Where a person is unable to give bail B.A. NOS.1176 & 1179 OF 2010 :: 5 :: within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso. Provided further that nothing in this section shall be deemed to affect the provisions of such-section (3) of section 116 or section 446-A. (2) Notwithstanding anything contained in sub- section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.” 9. In Rasiklal V. Kishore: (2009) 4 SCC 446, the Supreme Court held thus: “12. According to this Court a person accused of a bailable offence is entitled to be released on bail pending his trial, but he forfeits his right to be released on bail if his conduct subsequent his release is found to B.A. NOS.1176 & 1179 OF 2010 :: 6 :: be prejudicial to a fair tail. And this forfeiture can be made effective by invoking the inherent powers of the High Court under Section 482 of the Code . (See Talab Haji Hussain V. Madhukar Purushottam Mondkar: AIR 1958 S.C. 376 reiterated by a Constitution Bench in Ratilal Bhanji Mithani V. Collector of Customs: AIR 1967 SC 1639) 13. It may be noticed that sub-section (2) of Section 436 of the 1973 Code empowers any court to refuse bail without prejudice to action under Section 446 where a person fails to comply with the conditions of bail bond giving effect to the view expressed by this Court in the abovementioned cases.” 10. It is settled law that a person accused of a bailable offence is entitled to be released on bail pending the trial of the case. So long as the accused is prepared to give bail, the court is bound to grant bail to a person accused of bailable offence. Section 436 Cr.P.C. empowers the Court even to discharge an accused on his executing a bond without sureties for his appearance, in certain situations. Sub section (2) of Section 436 starts with a non obstante clause, namely, “notwithstanding anything contained in sub-section B.A. NOS.1176 & 1179 OF 2010 :: 7 :: (1)”. Sub Section (2) operates as an exception to sub section (1). Sub section (2) empowers the court to refuse to release an accused on bail, if he has failed to comply with the conditions of the bail bond as regards the time and place of attendance. The right of a person to be released on bail in a case involving bailable offence would not be available if he fails to comply with the conditions of the bond. After having violated the conditions of the bail bond, the accused cannot say that he has an indefeasible right to be released on bail under sub section (1) of Section 436 Cr.P.C. The right of the accused to be released on bail under Section 436 (1) would be available only so long as he complies with the conditions of the bail bond. Once he violates the conditions of the bond, he forfeits his right under Section 436 (1) Cr.P.C. Section 496 of the Code of Criminal Procedure, 1898 corresponds to Section 436 of the Code of Criminal Procedure, 1973. In Section 496 of the 1898 Code, a provision similar to sub- section (2) of Section 436 of the 1973 Code was not available. Sub section (2) of Section 436 is enacted with a view that a person who has violated the terms of the bail bond in a case involving bailable offence would not be entitled to bail when on a subsequent occasion in the same case he appears before the Court is brought in custody. B.A. NOS.1176 & 1179 OF 2010 :: 8 :: The contention that a person accused of a bailable offence would always be entitled to be released on bail on subsequent occasions as well, notwithstanding his violation of the conditions of bail bond, if accepted, would result in disastrous consequences. If that is the legal position, the Court would be powerless to secure the presence of the accused before Court; the accused would find it convenient to absent himself from Court for years together; he could successfully defeat the disposal of the case; and the court would not able to regulate the proceedings before it. Sub section (2) of Section 436 is intended to avoid such consequences. 11. The decisions of the Gujarat High Court in Sukar Narayan Bakhia V. Rajnikant R. Shah and another: 1982 Crl.L.J 2148 and of the Allahabad High Court in Panna Lal V. R.K.Sinha : AIR 1967 Allahabad 394 support the aforesaid view. 12. In Manoj Kumar V. State of Kerala: 1990 (1) KLT 120, the accused, who was granted bail, failed to appear before the Court. Bail bond was cancelled and non bailable warrant was issued. The accused appeared before the Court and applied for advancing the B.A. NOS.1176 & 1179 OF 2010 :: 9 :: date of hearing of the case, for recalling the warrant and for granting bail. The court dismissed the application for advancing the hearing date. It would appear that the learned Magistrate refused to accept the other applications. The High Court held that the learned Magistrate was bound to pass orders on the applications. 1990 (1) KLT 120 is not an authority for the proposition that a person accused of a bailable offence would be entitled to bail as of right even after violation of the terms of the bail bond. 13. Though sub-section (2) of Section 436 Cr.P.C. empowers the court to deny bail in the circumstances mentioned therein, that does not mean that where the accused who was granted bail fails to appear, bail should be refused in all such cases. Each case has to considered in the factual background of that case. Even after the accused fails to comply with the conditions of bail, the Court can grant bail again on such conditions as it may think fit, taking into account the facts and circumstances of each case. 14. The Bail Applications were partly heard on 22-2-2010. The cases were posted to 23-2-2010 for detailed hearing on the B.A. NOS.1176 & 1179 OF 2010 :: 10 :: question of law. It is stated that the petitioner is aged 73 years. When the Bail Applications came up for hearing on 23.2.2010, the learned counsel for the petitioner submitted that the cases were settled between the parties and the petitioner was released from jail. Therefore, it is not necessary to pass any order granting bail to the petitioner. The Bail Applications are accordingly closed. (K.T.SANKARAN) Judge ahz/