In Re: D. Ramamurthy

Sathar Sayeed, J.—The petitioner herein is charged for an offence under S. 379, I.P.C. on the ground that he has committed theft of household utensils from various places. The petitioner was arrested on 10th March, 1981 by the Avadi Police Station. On the same day. the petitioner was produced before the Sub Divisional Judicial Magistrate, Poonamallee and the Magistrate has remanded the petitioner to custody.

On 13th March 1981, the counsel for the petitioner filed a petition under S. 437, Crl. P.C. before the Sub Divisional Judicial Magistrate, who is the first respondent herein, to enlarge the petitioner on bail. The learned Magistrate on the said date has ordered notice to the second respondent herein, who Is the Inspector of Police. It is this order of the Magistrate in ordering notice to the second respondent, Inspector of Police, before releasing the petitioner on bail, that is questioned by the petitioner under S. 482, Crl. P.C.

The relevant averments of the affidavit filed by the father of the petitioner are as follows ;-

An application under S. 437 of the Crl. P.C. 1974. for enlarging the accused on bail was moved in the Court of the first respondent, on 13th March, 1981, on which date, the 1st respondent had ordered notice to be issued to the 2nd respondent for the purpose of ascertaining whether the 2nd respondent has any objections for releasing the petitioner/accused on bail and posted the enquiry on the bail application to 19th March,

1981.

I am advised to state that the 1st respondent ought to have disposed of the bail application on the same date and his adjudication relating to the issuance to the 2nd respondent and the postponement of enquiry for a period of 6 days, is devoid of statutory sanction and not contemplated under S. 437 of the Crl. P.C.

I am further advised to state that as the offence with which the petitioner/accused is charged is not the one which is exclusively (sic) tribal by the Court of Sessions and that he is a person under the age of 16 years, the 1st respondent ought to have disposed of the bail application without such kind of delay as mentioned hereinbefore.

I state that nevertheless the 1st respondent's failure to dispose of the bail application on 13th March, 1981 itself and keeping it alive for 6 days hence without any adjudication, has greatly affected the right of the petitioner/accused conferred under S. 437 of the Crl. P.C. and the detention of the petitioner/accused even after filing of the bail application would amount to denial of his right to personal liberty.

The petitioner's father further states in the affidavit filed by him that :-

Hence, I state that the postponement of enquiry en the bail application from 13th March, 1981 to 19th March, I881 and ordering notice to the 2nd respondent therefore, is an instance of deliberate misuse of legal proceedings, and therefore falls within the ambit of the expression, "abuse of the process of Court" at provided under S. 482 of the Crl. P.C.

The contention of the counsel appearing for the petitioner on the basis of the averments of the aforesaid affidavit are, that when once the petitioner/accused files a petition under S. 437, Crl. P.C. before the Magistrate to enlarge him on bail, the Magistrate, without issuing notice to the prosecution, ought to have passed an order either to enlarge petitioner on bail, and ordering notice to the Inspector of Police on his bail petition, is an abuse of process of Court. The further contention of the petitioner's counsel is, that under S. 437, Crl. P.C., the Magistrate has no power to issue notice to the police nor has the Magistrate power to issue notice to the Public Prosecutor while enlarging the petitioner on bail except the High Court or Court of Sessions. It is on these grounds that the counsel appearing for the petitioner contends that the issuance of notice by the Magistrate when the application for bail was filed by the petitioner before him, is illegal, contrary to law and sheer abuse of process of Court.

The learned Public Prosecutor, on the other hand, contends that S. 437, Crl. P. C., contemplates when bail has to be granted in case of non-bailable offence. Under S. 437 (4) Crl. P. C, an officer or a Court releasing any person on bail under Sub-S.(l) or Sub-S.(2) shall record in writing his or its reasons for so doing. In view of this Sub-S.(4) of S. 437, Crl. P. C, the learned Public Prosecutor contends, that the Magistrate on the bail filed by the accused-petitioner, in order to satisfy himself and in order to record in writing his reasons as to why he is or is not, releasing the petitioner on bail, has to issue notice to the police or to the Public Prosecutor, as the case may be, as otherwise Sub-s.(4) to S. 437, Crl. P. C, becomes redundant. It is under these circumstances, the issuance of notice by the Magistrate to the Inspector of Police it not irregular or contrary to law as alleged by the petitioner and this petition under S. 4S2, Crl. P. C, is without any substance and has to be dismissed.

The question for consideration is whether the Sub-Divisional Judicial Magistrate, Poonamallee is justified in issuing notice to the police on the bail petition under S. 437, Crl. P.C. filed by the petitioner.

When a petition for bail is filed by an accused before court, the points that have to be considered by the Court are pointed out in The State Vs.

Captain Jagjit Singh, at page 255, which are ""nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar other considerations which arise when a Court is asked for bail in a non-bailable offence. It is true that under S. 498 of the Crl. P.C. the powers of the High Court In the matter of granting bail are very wide; event so where the offence is non-bailable, various consideration! such as those indicated above have to be taken Into account before bail is granted in a non-bailable offence.

Let us take the provisions of S. 437, Cr. P.C. where bail has to be granted in case of non-bailable offence. S. 437 (1), Cr. P.C. reads:

When any person accused of or suspected of the commission of 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 other than the High Court or Court of Session, he may be released on bail, but he shall not be so released If there appear reasonable grounds for believing that he has been guilty of an offense punishable with death or imprisonment for life:

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or Infirm person accused of such an offence be released on bail:

Provided further that the mere fact that an accused person may be required for being Identified by witnesses further during investigation shall not be sufficient ground for refusing to grant ball if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.

S. 437 (4) Crl. P.C. contemplates:

An officer on a Court releasing any person on ball under Sub-s. (1), or Sub-s. (2) shall record In writing his or Its reasons for so dolug.

The petition for bail in the instant case was filed under S. 437, Crl. P.C. This section contemplates that when any accused suspected of the commission of any 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 other than the High Court or Court of Session, he may be released on bail, but he shall not be to released if there appear reasonable grounds for believing that he hat been guilty of an offence punishable with death or imprisonment for life. It has to be'' seen that the test to be applied under S, 437, Crl. P.C. in granting bail to the accused is, with reference to the nature of the accusation leveled against the accused, the nature of the evidence in support of the accusation, the severity of the punishment which conviction will entail and lastly, the character, behavior, means and standing of the accused. Equally, the larger interests of the State must also be kept in view in granting or refusing bail. The reasons mentioned above are not exhaustive catalogue of the factors which should weigh with the Courts. There may be either considerations which may be determinative. What is contemplated under S. 437(l), Crl. P.C. is that the person accused of or suspected of the commission of any non-bailable offence may be released on bail, but such person should not be released if there are reasonable grounds that such person has been guilty of an offence punishable with death or imprisonment for life. As to when a person, who is accused of or suspected of the commission of any non-bailable offence has to be released on bail, is contemplated under S. 437 (4), Crl. P.C. This sub-section points out that an officer or a Court releasing any person on bail under Sub-s.(l) or Sub-s. (2) of S. 437, Crl. P.C. shall record in writing his or its reasons for so doing. That is to say, if the officer or the Court comes to the conclusion that the person accused has to be enlarged on bail, he or it has to record his or its reasons in writing, for enlarging such person on bail. By recording hit-reasons to enlarge the accused person on bail, the Magistrate will be exercising his judicial discretion.

"Discretion" when applied to Court of Justice, means sound discretion guided by law. It must be governed by Rule and: not by humor; it must not be arbitrary, vague and fanciful, but legal and regular.

To arrive at such judicial discretion the Magistrate has to satisfy whether there is any reasonable possibility of the presence of the accused secured at the time of the trial if released and the Magistrate has alto to be satisfied as to -the nature and seriousness of the offence and whether there it any reasonable apprehension of witnesses being tampered with by the accused and the larger interests of the public or the State and similar other considerations. In order to ttcertain such facts and considerations and the antecedents of the person accused, which will usually and will always be insufficient and wanting in the bail petitions projected by the accused persons before Courts, the Magistrate hat to issue notice to the police or to the Public Prosecutor for the purpose of convincing himself about the character, behavior, antecedents of the accused and the nature of accusation.

For example, if the offence is a grave one like murder, or if the offence appears to be serious fraud committed by the accused in some commercial transaction in which the accused has made large gains so that he is not an unlikely person to endeavour escape punishment by absconding and that he to it a person likely to abscond from the clutches of the law, the Court has to issue notice either to the police or to the Public Prosecutor in order to ascertain the true state of affairs and pass a reasonable and judicial order. Thus, it is the function of the Magistrate to enquire from the prosecution whether the grant of bail, as opposed to the arrest of the accused, might lead to the real danger of his absconding and not appearing to take his trial or whether there is any likelihood of the accused tampering with the witnesses.

The learned Public Prosecutor concedes that there is no specific provision for notice under S. 437, Crl. P.C. but argues that the Magistrate enquires about the facts of the case on the materials placed or projected before him, and the court comes to the conclusion and exercises its discretion whether the accused has to be released or should not be released on bail. In other words the Magistrate holds an enquiry as contemplated under S. 2 (g) of the Crl. P.C. and the trial in a warrant case starts with the framing of a charge and prior to it, the proceedings before the Magistrate are only in the nature of an enquiry and an enquiry by the Court without issuing notice to the prosecution to enquire about the character, commitments and antecedents of the accused will be no enquiry at all, either to grant or reject bail. That apart, S. 437 (4), Crl. P.C. contemplates that the Officer or the Magistrate has to record reasons if he passes an order either under S. 437 (1) or 437 (2), Crl. P.C. and for this -purpose, there must be materials before the Magistrate which would be supplied only by the prosecution on the issuance of notice to it and not by-the petitioner, who somehow or other will try So wriggle out from the serious allegations and charges leveled against him. I agree with the contentions of the learned Public Prosecutor. The contention of the petitioner's counsel that when once papers are placed by the prosecution before the Magistrate leveling allegations against the accused person, the Magistrate has to pass orders and exercise his discretion to release the accused on bail without reference to the police, is putting the cart before the horse. The argument of the petitioner's counsel that notice should not be issued to the prosecution when once the accused person seeks bail before the Magistrate, would mean, that the Magistrate even to pass a reasoned order either to refuse or to grant bail to the accused person, should not even clarify from the prosecution the allegations leveled against the accused person at the stage of enquiry, is undoubtedly without any substance, If no notice is issued to the police by the Magistrate before exercising his judicial discretion, it will amount to be an ex parte order behind the back of the prosecution.

I may further state that in this case, the Magistrate has committed the accused person herein to custody, which is a judicial order passed by a criminal court of competent jurisdiction. The petitioner's commitment to custody is not by reason of the fact that he is alleged to have committed a bailable offence, but on the other hand, his commitment to custody is the result of a judicial order passed on the ground that the petitioner has forfeited his bail and cannot be allowed to be at large, and such a person who is committed to custody by the order of the competent court, cannot now contend at the time at applying for bail that he has an unqualified and indefeasible right to be released on bail either under S. 437 (l) or 437 (2), Crl. P.C. without notice to the prosecution.

The Court may presume, as mentioned in S. 114 of the Evidence Act, the existence of any fact from the records placed before it, which it may think likely to have happened. Whether or not the presumption can be drawn under the section in a particular case to enlarge the accused person on bail ultimately depends upon the facts of the case and the Court or the Magistrate cannot be a silent spectat or by not clarifying or eliciting further facts from the prosecution to arrive at a definite conclusion and to exercise its discretion either to enlarge the petitioner on bail or to reject

bail. Under those circumstances, I am of the view that the contention of the petitioner's counsel that no notice should be issued to the prosecution when the bail petition is taken up for enquiry by the Magistrate under S. 437, Crl. P.C. is untenable and is without substance.

In so far as the averments of the affidavit filed by the petitioner's father in the instant case are concerned, which are extracted supra, I find that the petitioner is a minor aged 16 years old. The trial Court will satisfy itself about the averments of the age of the petitioner and will take into account the first proviso to S. 437(1), Crl. P.C. and pass orders according to law. Accordingly, this petition is dismissed.