Latheef vs State of Kerala

N.K. Balakrishnan, J.—This matter has come up for consideration before us on a reference made by a learned Single Judge of this Court (Justice V. Ramkumar). The learned Single Judge doubted the correctness of the decision reported in Nassar Vs. State of Kerala, .

The relevant portion in Nassar''s case is extracted hereunder.

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 investigation.

In the reference order the learned Single Judge has also stated that the very same learned Judge (who decided Nassar''s case), in a subsequent unreported decision dated 30.10.2009 in Crl.M.C. No. 3264 of 2009 has reiterated the position as stated hereunder.

Question is whether Annexure-I order passed by the learned Magistrate cancelling the bail is legal. The position is settled by this Court in Nassar Vs. State of Kerala, ) holding that bail can be cancelled u/s 439 either by the Sessions Court or the High Court and not by the Magistrate. Chief Judicial Magistrate therefore could not have cancelled the bail. Annexure-I order can only be quashed.

Petition is allowed. Annexure-I order is quashed. This order will not affect the right of the investigating officer to approach the appropriate Court to cancel the bail in accordance with law.

So much so, even though the learned Single Judge did not state in so many words in Nassar''s case that the Magistrate who granted bail u/s 437(1) Code of Criminal Procedure has no power to cancel the bail it is discernible from the order the relevant portion of which has been extracted that the Magistrate has no power to order cancellation of bail.

The point that arises for consideration is whether the Magistrate who granted bail to an accused u/s 437(1) Code of Criminal Procedure has power to cancel it u/s 437(5) Code of Criminal Procedure The learned Single Judge in Nassar''s case held that what is provided u/s 437(5) is only to direct such persons be arrested and commit him to custody.

The learned Single Judge has followed the decision reported in Tulaseedharan Nair and Others Vs. The State of Kerala, . In Thulaseedharan Nair''s case another learned single judge held:

The power to cancel the granted bail is available only to the High Courts and the Courts of Session and the Parliament appears to have placed trust and faith that such superior Courts will be able to identify the valid reasons on which such an extraordinary harsh remedy of law can be granted. The Parliament has hence not chosen to enumerate and stipulate the circumstances under which such powers can or cannot be invoked. Normally and ordinarily interference with the due course of justice, hampering investigation, abusing freedom granted by the Court which granted bail, intimidation of witnesses etc. are the reasons urged for cancellation of bail. But by no stretch of imagination can it be held that the list is exhaustive. There must and can be other circumstances under which also an order for cancellation of bail can be allowed. It is left to the sound judicial discretion of the superior Courts- the Sessions Courts and the High Courts to decide in what cases an order of bail can be cancelled. It is unnecessary-nay it will be counter productive to attempt to enumerate exhaustively the circumstances under which bail already granted can be cancelled and need not be cancelled. A Court must be informed of all the circumstances. Myriad are the circumstances and facts which may arise in each case and no two cases can be said to be exactly identical. Therefore, the list of circumstances which are often referred to, it must be alertly noted, is not exhaustive and other circumstances can and may certainly be there.

The facts dealt with in Thulaseedharan Nair''s case are different. That was a case in which the charge sheet against the accused was laid alleging Commission of certain bailable offences only. But, after further investigation some more accused were arrayed and the investigation disclosed the Commission of a non-bailable offence also. Right to claim bail in bailable offences is absolute and indefeasible. It was in that particular context the learned Single Judge held in Thulaseedharan Nair''s case that the power to cancel the granted bail is available only to the High Court and to the Court of Sessions. Hence Thulaseedharan Nair''s case is not applicable to a case where the power to cancel bail is to be considered u/s 437(5).

In Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another, it was held by the Hon''ble Supreme Court that the bail granted u/s 496 of the old Code can be cancelled only by the High Court under its inherent power. Section 496 of the old Code is identical to Section 436 of the new Code which deals with the right of an accused involved in a bailable offence to be released on bail. Under the new Code Section 439(2) provides for cancellation of bail granted under Chapter XXXIII which includes Section 436 as well and so the Sessions Judge or the High Court can cancel the bail granted u/s 436 in an appropriate case.

Section 439(2) Code of Criminal Procedure deals with the power of the High Court and the Court of Sessions to direct arrest of any accused who was released on bail under Chapter XXXIII of Code of Criminal Procedure Section 439(2) reads.

A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.

Section 437(5) of Code of Criminal Procedure which deals with power of the Magistrate reads thus.

Any Court which has released a person on bail under Sub-section (1), or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.

Section 439 deals with the special powers of the High Court or Court of Sessions regarding bail, while Section 437(1) Code of Criminal Procedure deals with the power of the Magistrate to grant bail to an accused involved in a non-bailable offence. While Section 439(2) Code of Criminal Procedure deals with power of the High Court or Court of Sessions to order arrest of the accused who was granted bail under Chapter XXXIII which takes in Section 436 also, Section 437(5) deals with the power of the Magistrate to cancel bail.

The learned Public Prosecutor would submit that though the expression "cancellation of bail" is not used in Section 437(5) and Section 439(2) Code of Criminal Procedure; both those provisions 439(2) and 437(5) are identically worded. While the High Court and Court of Sessions can exercise power u/s 439(2) Code of Criminal Procedure, the exercise of a similar power by the Magistrate is dealt with in Section 437(5). In other words, Section 437(5) is almost identical to Section 439(2). In both sections the word ''cancellation of bail'' is not used. Even though the expression ''cancel bail'' is not used in Section 437(5) and Section 439(2) Code of Criminal Procedure when the Court considered it necessary to direct a person who had already been released on bail to be arrested so as to commit him to custody it presupposes that the order of bail granted earlier stood cancelled. In other words, the bail granted earlier must be deemed to have been cancelled.

It was held by the Apex Court in the decision reported in Gurcharan Singh v. State of Delhi Admit. AIR 1978 SC 179.

The question of cancellation of bail u/s 439(2) is certainly different from admission to bail u/s 439(1). u/s 439(2) the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. u/s 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code u/s 439(2). u/s 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so.

In the decision reported in Bashir and Others Vs. State of Haryana, ) a question arose whether a person who was released under the proviso to Section 167(2) could later be committed to custody merely because a charge sheet was subsequently filed. The Apex Court held that he could not be so committed to custody but the bail could be cancelled u/s 437(5) if the Court came to the conclusion that there were sufficient grounds after the filing of the charge sheet to believe that the accused had committed a non-bailable offence and that it was necessary to arrest and commit him to custody.

It was held in the decision cited supra that u/s 167(2) Code of Criminal Procedure the person who has been released on the ground that he had been in custody for a period over 60 days is deemed to be released under the provisions of Chapter XXXIII. The grounds for cancellation of bail were delineated in the aforesaid decision as.

The power of the Court to cancel bail if it considers it necessary is preserved in cases where a person has been released on bail u/s 437(1) or (2) and these provisions are applicable to a person who has been released u/s 167(2).

In the decision reported in State (Delhi Administration) Vs. Sanjay Gandhi, . also the power of the Court to cancel bail u/s 439(2) was considered.

In Raghubir Singh and Others Vs. State of Bihar, it was held:

An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody u/s 309(2). The order for release on bail may however be cancelled u/s 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him.

It was also held in the decision cited above that the grounds for cancellation of bail u/s 437(5) and 439(2) are identical; namely, bail granted u/s 437(1) or (2) or 439(1) can be cancelled where the accused misuses his liberty by indulging in similar criminal activity, interferes with the course of investigation, attempts to tamper with evidence or witnesses etc.

In the decisions cited supra the Hon''ble Supreme Court has reiterated the grounds to be satisfied for cancellation of bail u/s 439(2). Section 437(5) and Section 439(2) are identically worded. The learned Counsel appearing for the revision Petitioner submits that the power u/s 439(2) Code of Criminal Procedure can be exercised by the High Court or by the Court of Sessions while similar power u/s 437(5) can be exercised by the Magistrate and so in all respects the two provisions are almost identical. When a Magistrate decides to order arrest of the accused to commit him to custody it goes without saying that the bail already granted to the accused stands cancelled.

In the decision reported in Aslam Babalal Desai Vs. State of Maharashtra, it was held,

Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted u/s 437(1) or (2) or 439(1) of the Code.

(underlined to lay emphasis)

It was held in Kalyan Chandra Sarkar Vs. Rajesh Ranjan @ Pappu Yadav and Another, that the conditions laid down u/s 437(1)(i) Code of Criminal Procedure are sine qua non for granting bail u/s 439 of Code of Criminal Procedure The learned Public Prosecutor submits that it has been referred to here in support of his submission that while Section 439(2) Code of Criminal Procedure deals with power of the High Court and that of the Court of Sessions to cancel bail the same power is given to the Magistrate u/s 437(5) Code of Criminal Procedure

The learned Public Prosecutor and the learned Counsel for Petitioner, Sri. G. Sreekumar (Chelur) have referred to the decision of the Hon''ble Supreme Court reported in Manjit Prakash and Others Vs. Shobha Devi and Another, where it was held:

Once the order of release is by fiction of law an order passed u/s 437(1) or (2) or Section 439(1) it follows as a natural consequence that the said order can be cancelled under Sub-section (5) of Section 437 or Sub-section (2) of Section 439 on considerations relevant for cancellation of an order thereunder. As stated in Raghubir Singh v. State of Bihar the grounds for cancellation under Sections 437(5) and 439(2) are identical, namely, bail granted u/s 437(1) or (2) or Section 439(1) can be cancelled where (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation, (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc.

Both the provisions do not use the expression ''cancel'' but deal with the power of the Court to order arrest of the accused and to commit him to custody. While Section 439(2) has been regarded as the source of power enabling the Court of Sessions and High Court to cancel the bail; Section 437(5) has been regarded and understood as the source of power enabling the Magistrate to cancel the bail granted u/s 437(1) or 437(2). The decisions rendered by the Apex Court while dealing with the power of the Court of Sessions and of the High Court to cancel bail u/s 439(2) would therefore apply to cases dealing with the power of the Magistrate to cancel the bail u/s 437(5) Code of Criminal Procedure

In the light of the decisions cited supra there is no doubt in our mind that the Magistrate who granted bail u/s 437(1) and (2) Code of Criminal Procedure has the right to cancel the bail u/s 437(5) of the Code of Criminal Procedure Section 437(5) is the source of power for the Magistrate to cancel the bail granted u/s 437(1) and (2) Code of Criminal Procedure Therefore, we hold that the law laid down in Nassar''s case ( Nassar Vs. State of Kerala, ) is not correct. The reference is answered accordingly. The Registry shall post the case before the concerned Bench for disposal.