M.B. Ponnappa vs State of Karnataka and Another

Government Pleader is directed to take notice.

Heard the Counsel for the petitioner and the Government Pleader for the State.

The petitioner who is an accused in CC No. 130 of 1995 on the file of J.M.F.C., Madikeri for offences under Sections 189, 332 and 506(1) of

the IPC was released on bail on 20-2-1995 at the investigation stage with conditions. Later conditions of bail were relaxed and the petitioner was

directed to appear before Court on being summoned. On a final report being filed, summons were issued to the accused. The accused petitioner

claims that on account of mental illness, he could not appear before Court, being treated in different hospitals at Mysore, Bangalore, Udupi and the

NIMHANS, Bangalore and in Kerala. Meanwhile, the sureties being unable to trace and produce the accused, paid the penalty imposed on them

by the Court. The case was transferred to the long pending case register, with no immediate prospect of apprehension of the petitioner. A non-

bailable warrant for arrest of the petitioner, as per rules, is pending with the police. The petitioner''s apprehension is that when he appears before

the Court to face trial of the offence alleged, he would be taken to judicial custody resulting in aggravation of his illness. The petitioner''s prayer is

that the order dated 20-1-2000 for his arrest on transfer of the case to long pending case register be set aside and to enquire into his mental

condition.

Normally an accused person who is shown to he an evader from justice would not be entitled to indulgence of bail, unless he is able to

demonstrate that he is really not an absconder and there are circumstances in mitigation of his absence from Court. This is, essentially a question of

fact to be found by the Magistrate on a bail application being moved by the accused declared to be an absconder. In the instant case, petitioner

has pleaded that he could not respond to the summons to the Court on account of his mental illness described as ''Maniac Depression1: This

circumstance could be pleaded before Trial Court to persuade it to treat the petitioner with the indulgence of not being remanded to judicial

custody pending consideration of an application for bail.

When an accused, against whom a warrant of arrest has been issued, appears before the Court which has issued the warrant of arrest, he could

be dealt with u/s 436 or 437 of the Code as the case may be. An inflexible notion seems to have developed that such an accused person has to be

remanded to judicial custody till such time as the objection of the prosecutor is heard on the bail application, resulting in hardship to accused, who

are as a matter routine, would be otherwise entitled to bail. Denial of bail is not to be used as punishment to an accused who would otherwise be

eligible for bail. In these days jails filled with undertrials beyond all decent levels of confinement, the power of remand should be judiciously

exercised by the Magistrate, so that an accused who is willing to offer bail to the satisfaction of the Court, is not pushed into the jail needlessly. It

would be indeed necessary, where the offences are neither punishable with death nor imprisonment for life nor otherwise of a grave nature, the

Magistrate should examine granting interim bail till such time as objections, if any, are filed by the prosecution and thereafter decide on the merits of

the bail application. This approach would not only be humane but also would help in avoiding infliction of needless misery on accused who would

ultimately be entitled to bail. These considerations should inform the Court in their approach to bail matters, so that an eminently avoidable remand

to judicial custody pending consideration of a bail application, is prevented. Offences of such nature as are alleged to be committed in this case are

not unusual and when the accused submits to the Court''s jurisdiction and seeks bail, it is a matter for Court to impose such conditions as are

sufficient to ensure presence at the trial.

In the instant case, the petitioner''s alleged illness would have to be taken into consideration by the Magistrate, while passing orders on the

application for bail and the Magistrate may consider granting interim bail till the disposal of his application for bail, on the basis of the observations

made herein.

In terms stated above, the petition is allowed.