G. Murugan vs State

T. Sudanthiram, J.—The petitioner who apprehends arrest at the hands of the respondent police for the offences under Sections 294(b), 324 and 506(H) IPC, seeks anticipatory bail.

The learned Government Advocate (Criminal side) submitted that the case is registered against this petitioner and his son under Sections 294(h) and 324 IPC which are bailable in nature.

At this juncture, the learned counsel appearing for the petitioner submitted that the learned Judicial Magistrate II, Ponneri, remanded the co-accused on 18.3.2011 and refused to release the accused on bail when the bail petition was filed u/s 436 Cr.P.C observing that the offence is a non-bailable as per the amended Act and released him on bail only on 23.2.2011. The learned counsel also produced the copy of the bail application and order passed by the learned Magistrate dated 18.3.2011 and 23.3.2011 in C.M.P. No. 1857 of 2011.

This Court feels that it is erroneous on the part of the learned Judicial Magistrate II, Ponneri, to consider Section 324 IPC as non-bailable by merely looking into printed book. Under Act 25 of 2005 Cr.P.C dated 23.6.2005, the Code of Criminal Procedure was amended and as per the amended Act u/s 42(f)(iii) against Section 325 IPC. In 5th Column of first schedule of Cr.P.C, the word "bailable" was deleted and the word "non-bailable" was included. The amendment of the Code of Criminal Procedure under Act No. 25 of 2005 was followed by a notification dated 21.6.2006 which is as follows:

Ministry of Home Affairs

Notification

New Delhi, the 21.6.2006

S.O.923(E) - In exercise of the powers conferred by sub-section (2) of Section 1 of the Code of Criminal Procedure (Amendment) Act, 2005 (No. 25 of 2005), the Central Government hereby appoints the 23.6.2006, as the date on which the provisions of the said Act, except the provisions of Sections 16, 26, 28(a). 28(b), 38, 42(a), 42(f)(iii) and (iv) and 44(a). shall come into force.

(F. No. 2/5/90-Judl Cell (Vol VIII))

Dr. P.K. Seth, Jt. Secy.

The above notification shows that Section 42(f)(iii).... of the Code of Criminal Procedure (Amendment) Act, 2005 has not come into force and as such, the offence u/s 324 IPC remains as bailable.

In view of the above, as the offences alleged against the petitioner are only bailable in nature, the petition for anticipatory bail is dismissed.

The petitioner is at liberty to appear before the learned Judicial Magistrate II, Ponneri and seek for bail. The learned Magistrate is directed to consider the bail application u/s 436 Cr.P.C.

This Court feels that when an application was filed before the learned Judicial Magistrate II, Ponneri u/s 436 Cr.P.C, the learned Magistrate should have confirmed whether the offence is bailable or non- bailable. It appears that even the defence counsel did not place all the materials before the learned Magistrate to show that the offence u/s 324 IPC is bailable in nature. It is not clear whether the learned Magistrate sought any clarification from the concerned Assistant Public Prosecutor. 1 feel there was a dereliction of duty on the part of all. The learned Magistrate is directed to give report within a period of two weeks.

In order to avoid difficulties in the future, a copy of this order shall be communicated to all the Magistrates.