IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 6TH NOVEMBER 2009 / 15TH KARTHIKA 1931 Bail Appl..No. 6330 of 2009 -------------------------------------- (CRIME NO. 787/2009 CHENGANNUR POLICE STATION) .............. PETITIONER/ACCUSED: ---------------------------------- BIJU, MALIEKKAL VEEDU, PANDINADU VILLAGE, CHENGANNUR. BY ADVS. MR.B.S.SWATHY KUMAR, SMT.P.A.ANITHA. RESPONDENT/COMPLAINANT: --------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. M.S. BREEZ. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06/11/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. C R K.T. SANKARAN, J. --------------------------- B.A. No. 6330 of 2009 ------------------------------------ Dated this the 6th day of November, 2009 O R D E R The question involved in this Bail Application is whether the offences under Section 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Act 18/2001) (herein after referred as 'Sand Act') which are punishable with imprisonment for a term of which may extend to two years or with fine which may extend to twenty-five thousand rupees or with both, are non-bailable offences in view of section 24 of the Sand Act. 2. The petitioner apprehends arrest in Crime No. 787/2009 of Chengannur Police Station wherein the offence under Sections 20 and 21 of the Sand Act are alleged against him. Hence the petitioner has filed this application for Anticipatory Bail under Section 438 of the Code of Criminal Procedure. 3. Sri. M.S.Breeze, the learned Public Prosecutor raised a preliminary objection that the offences alleged against the petitioner are bailable and therefore the application for Anticipatory Bail is not maintainable. B.A. No. 6330 of 2009 2 4. Sri. B.S.Swathi Kumar, the learned Counsel appearing for the petitioner submitted that Section 24 of the Sand Act provides that the offences under the Act are cognizable and therefore it has to be assumed that they are non-bailable as well. 5. Sections 20 and 21 of the Sand Act are extracted below for easy reference. “ 20. Penalty for contravention of this Act.- Whoever contravenes any of the provisions of this Act of rules made thereunder shall, on conviction be punished with imprisonment for a term of which may extend to two years or with fine which may extend to twenty-five thousand rupees or with both and in case of continuing contravention with an additional fine which may extend to one thousand rupees for every day during which such contravention continues. 21. Abetment of offences.- Whoever abets any offence punishable by or under this Act or attempts to commit any such offence shall be punished with the penalty provided by this Act for committing such offence.” 6. Section 24 of the Sand Act Provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), all offences under the Act shall be cognizable. B.A. No. 6330 of 2009 3 7. The II Part of the First Schedule of the Code of Criminal Procedure contains the “ CLASSIFICATION OF OFFENCES AGAINST OTHER LAWS”. It is provided therein as follows. Offence Cognizable Bailable or By what non-cognizable non-bailable court triable 1 2 3 4 If punishable with death, imprisonment for life, Cognizable Non-bailable Court of Session. or imprisonment for more than 7 years, If punishable with imprisonment for 3 years, and upwards but Cognizable Non-bailable Magistrate of not more than 7 years. the first class If punishable with imprisonment for less than 3 years or with Non-cognizable Bailable Any Magistrate fine only. 8. Section 2(a) and (c) of the Code of Criminal Procedure defines “bailable offence” and “cognizable offence” thus. “ 2(a) “bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and “non-bailable offence” means any other offence; (c) “cognizable offence” means an offence for which, and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;” B.A. No. 6330 of 2009 4 9. The punishment provided for the offences under Sections 20 and 21 of the Sand Act is less than three years. Therefore, going by the II Part of the First Schedule to the Code of Criminal Procedure, such offences would be non-cognizable and bailable. However, Section 24 of the Sand Act makes the offence under the Act cognizable. It means that notwithstanding the Second Part of the First Schedule to the Code of Criminal Procedure, the Police Officer may arrest the accused without warrant as the offence is cognizable. It does not mean that the offence is non-bailable. All cognizable offences are not non- bailable. For example, Sections 129, 135, 136, 138, 140, 143 to 148, 151 to 153, 157 to 160, 167, 171, 188, 212 to 213, 215 to 216-A, 218, 224, 225-B, 228-A, 259, 260, 269, 270, 277, 279 to 286, 289, 291 to 293, 294, 296, 304-A, 309, 317, 318, 325, 330, 332, 335 to 348, 353, 354, 356, 357, 363, 374, 376-B, 376-C, 376-D, 385, 388, 389, 419, 428 to 433, 435, 440, 447, 448, 451, 462, 469 to 474, 489-C and 509 of the Indian Penal Code are cognizable but those offences are bailable as well. The Scheme of the First Schedule to the Code of Criminal Procedure shows that there are offences under the Indian Penal Code which are cognizable and non-bailable, cognizable and bailable, B.A. No. 6330 of 2009 5 non-cognizable but non-bailable and non-cognizable and bailable. For example, Sections 194, 466, 467, 493 and 505 of the Indian Penal Code are non-cognizable and non-bailable. There are several offences under the Indian Penal Code which are non-cognizable as well as bailable. Thus, it is clear that the fact that an offence is cognizable does not mean that it is non- bailable. Similarly, merely because an offence is non-cognizable, it does not mean that it is always bailable. The question whether a particular offence is bailable or not does not depend on whether the offence is cognizable or non-cognizable. The Sand Act does not indicate that the offences under Sections 20 and 21 are non-bailable. For the aforesaid reasons, I am not inclined to accept the contention of Advocate Mr. B.S.Swathi Kumar. The offences involved in the present case are bailable and therefore the application for Anticipatory Bail is not maintainable. The Bail Application is accordingly dismissed. K.T. SANKARAN JUDGE kkms