Saraswathi vs The Inspector of Police

P.N. Prakash, J.—Heard the learned counsel for the petitioner, the learned counsel for the 4th respondent / accused and the learned Government Advocate (Crl.Side) for the State / R1 to R3.

This is a petition for cancellation of bail that has been granted by the learned District Munsif-cum-Judicial Magistrate Court, Uthukottai on 14.06.2013 in Crl.M.P.No. 1595 of 2013, to the accused / 4th respondent. The victim is the petitioner before this Court.

For the sake of convenience, the parties would be referred to as the victim, accused and Police.

On information that there are bonded labourers working in the Brick Kiln run by the accused, the Tahsildar of Thiruvallur conducted a surprise inspection on 10.06.2013 in the Brick Kiln and found that 273 persons were being kept as bonded labourers and rescued them. Thereafter, on 12.06.2013, the Tahsildar had given a written complaint to the Police for registering a case against the accused, based on which Police registered the case in Crime No. 285 of 2013 for the offences under Sections 374, 341, 370(3)(4) IPC, Sections 9, 16, 17 and 18 of Bonded Labour System Abolition Act, 1976 and Section 14 of the Child Labour Prohibition and Regulation Act, 1986. Police arrested the accused and produced him before the learned District Munsif-cum-Judicial Magistrate Court, Uthukottai on 14.06.2013 and on the same day, the accused filed bail application, on which learned Magistrate passed the following order:

"IN THE COURT OF THE DISTRICT MUNSIF CUM JUDICIAL MAGISTRATE UTHUKOTTAI Cr.No. 285/2013

Periyapalayam Police Station CMP. No: 1595/2013

U/S. 374, 341, 370(3)(4) Bonded Labour & Child Labour Act-Part-14

BAIL ORDER: 14.06.2013

Records perused. All offence are bailable. The accused is ordered to be released on bail on his executing a bond for Rs.5,000/- with two sureties for like sum each and the accused shall appear before this Court on receipt of summon."

It is the grievance of the victim that the order granting bail has been passed in total violation of law inasmuch as the alleged offences under Section 370(3) & (4) IPC are non bailable. On reading of the 1st schedule of the Code of Criminal Procedure, it is clear that the offences under Section 370(3)(4) IPC have been made non bailable with effect from 03.02.2013 by virtue of Criminal Law Amendment Act 13 of 2013. Perhaps, the learned Magistrate was not aware of the said amendment and in all probabilities, he would have referred to the old edition of the Code of Criminal Procedure and fallen into error. Prior to 03.02.2013, the offence under Section 370 IPC was non cognizable and bailable and only on account of the Central Act 13 of 2013, these offences have been made cognizable and non bailable. Detection of the crime in this case was on 10.06.2013 and the bail order was passed on 12.06.2013. Therefore, the law as on the date of offence should have been applied by the learned Magistrate.

Mr.Anand Venkatesh, learned counsel for the accused submitted that the petition for cancellation of bail will not be maintainable and only revisional jurisdiction of this Court can be invoked under Section 397 Cr.P.C. for setting aside the order of bail that was granted by the Trial Court on the ground of illegality and impropriety. He further contended that bail once granted can be cancelled under Section 439(2) of Cr.P.C. only if there are supervening circumstances. Whereas in this case, there is no allegation against the accused that he tampered with any evidence. In his usual fairness, Mr.Anand Venkatesh also brought to my notice the judgment of the Hon''ble Supreme Court in the case of Masroor Vs. State of U.P. and Another, , which was against the proposition that he was canvassing.

Be that as it may, the Hon''ble Supreme Court in Prakash Kadam and Vs. Ramprasad Vishwanath Gupta and Another, and Kanwar Singh Meena Vs. State of Rajasthan and Another, , has clearly held that the power under Section 439 Cr.P.C. is available to this Court to cancel the bail where the very grant was illegal. The Hon''ble Supreme Court in Paragraph Nos. 10 of Kanwar Singh Meena Vs State of Rajasthan and another (supra) has held as follows:

"Principles applicable for grant of bail

Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial.

Principles applicable for cancellation of bail

While cancelling bail under Section 439(2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infirm and vulnerable leading to miscarriage of justice and absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to flee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail."

Therefore, this Court is of the opinion that the reasoning of the learned Magistrate that the offences are bailable is incorrect and on this ground alone, the bail granted to the accused deserves to be cancelled.

In the result, this Criminal Original Petition is allowed and the bail granted to the accused / 4th respondent herein in Crl.M.P.No. 1595 of 2013 in Cr.No. 285 of 2013 on 14.06.2013 by the learned District Munsif-cum-Judicial Magistrate Court, Uthukottai is cancelled. The accused is directed to surrender before the learned Magistrate forthwith, failing which the Police shall arrest and remand him to custody.