Thursday, 14 April 2016

Whether bail granted U/S 167 of CRPC can be cancelled U/S 437(5) of CRPC?


     The Apex Court in Bashir v. State of Haryana [AIR
1978 SC 55] held that the bail granted under Section 167(2) of
the Code has the same incidents           as the bail granted under
Chapter 33.
     Section 437 comes under Chapter 33 of the Code.

Therefore, once the bail is granted under the proviso to Section

167 (2) of the Code, it has the same incidents as the bail granted

under sub-section (1) or sub-section (2) of Section 437 of the

Code.       Consequently, the bail granted under Section 167 (2) of

the Code can be cancelled invoking the provisions under Section

437 (5) of the Code.


  
     IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT:

       THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

WEDNESDAY, THE 11TH DAY OF NOVEMBER 2015/

              Crl.Rev.Pet.No. 1270 of 2015 

      MAHESH K alias BATTAMPARA MAHESH, 
Vs

           THE STATION HOUSE OFFICER,
            KASARAGOD POLICE STATION
           
     Citation;2016 ALLMR(CRI) JOURNAL165

      The petitioner is the first accused in Crime No. 1048 of
2014 of Kasaragod Police Station. The petitioner was granted
bail by the court below under proviso to Section 167 (2) of the
Code, imposing certain conditions. Thereafter, CMP No. 1789 of
2015 was filed by the first respondent before the court below
praying for    canceling the order                       of bail,        stating that the
petitioner violated the conditions of the order granting bail.


      2.  Heard both sides.


      3.   The offences alleged against the petitioner in Crime
No.1048 of 2015 of Kasaragod Police Station are offences
under Sections 143, 147, 148, 341, 449, 120(B), 202, 212, 153
(A) and 302 read with Section 149 of IPC.


      4.   It appears that at the time of granting bail, the court
below directed the petitioner to appear before the Investigating
Officer between 10 a.m. and 11 a.m. on every Monday and
Wednesday till the filing of the final report.                             It was further
directed by the court below that the petitioner should not get
involved in similar offences while on bail.

                          

       5.     The respondent would contend that the petitioner never
appeared         before the Investigating Officer on any Monday, as
directed by the court below, eventhough the petitioner used to
appear on every Wednesday before the Investigating Officer.
That apart, the petitioner was involved in four other crimes after
the granting of bail by the court below. Thus, the petitioner
violated the conditions of the order granting bail by the court
below, and in the said circumstances, the respondent filed the
above CMP for cancellation of the bail.


       6.     The learned counsel for the petitioner has argued that
the direction of the court         below was not to commit similar
offences and not to commit any offence while on bail and since
the offences alleged in the subsequent crimes are not similar
offences, it cannot be said that there was violation of the condition
of the order granting bail. It was further argued by the learned
counsel for the revision petitioner,       relying on the decision in
James George @ Basaliyos Marthoma Yakob-Pradaman v. State
of Kerala [2015(4) KHC 943), that the provisions under Section
437 (5) of the Code is not meant for cancellation of bail and hence
the court below had no power to cancel the bail invoking the
provisions under Section 437 (5) of the Code.            The learned

                              
counsel for the petitioner has further argued that since the bail
was granted by the court below under the proviso to Section 167
(2) of the Code, the court below had no jurisdiction to cancel the
bail invoking the provisions of Section 437 (5) of the Code even
if it is assumed that the Court is having the jurisdiction to cancel
the bail granted under sub-section (1) or (2) of Section 437 of the
Code, invoking the provisions of Section 437 (5) of the Code.


       7. The records would show that the petitioner was involved
in the following crimes subsequent to the granting of bail:-


                       1)Crime No. 538 of 2015 of Kasaragod
                       Police Station registered under Section 151
                       Cr.P.C.


                       2)Crime No.540 of 2015         of Kasaragod
                       Police Station registered under Sections 353,
                       294 (b) IPC & Section 3 (1) of PDPP Act.


                       3)Crime No. 472 of 2015 of Kasaragod
                       Police Station registered under Section 117
                       (e) of KP Act.

                                  
                       4)Crime No. 248 of 2015          of Hosdurg
                       Police Station registered under Sections 143,
                       147 and 353 read with Sec. 149 IPC and
                       Section 3 (1) of PDPP Act.


       8.      The offences involved in this case are offences under
Sections 143, 147, 148, 341, 449, 202, 212, 120(B), 153(A) and
302 read with Section 149 of IPC.             The offence under Section
302 IPC comes under Chapter 16 of the Code, which deals with
offences affecting the human body. Section 353 IPC, which is
one of the offences in Crime No. 540 of 2015 of Kasaragod Police
Station,       also falls under the same Chapter. The offence under
Section 449 IPC falls under Chapter 17 of the Code which deals
with offences against property. Therefore, there is no substance
in the argument of the learned counsel for the revision petitioner
that the revision petitioner did not commit similar offences after
being enlarged on bail in Crime No. 1048 of 2014 of Kasaragod
Police Station. That apart, by similar offences, the court below
would have never intended that the subsequent offences must be
the same offences as involved in             Crime No. 1048 of 2014 of
Kasaragod Police Station. The petitioner was involved in four
other crimes as mentioned above, subsequent to his release on
bail in Crime No. 1048 of 2014 of Kasaragod Police Station.

                                
Therefore, there is sufficient justification for the learned
Magistrate to cancel the bail. In view of the above reasons, the
argument advanced by the learned counsel in this regard cannot
be accepted.


       9.        It is also to be noted that the petitioner was also
involved in eleven other crimes of serious nature          prior to the
registration of the present crime.         It is not disputed that the
petitioner did not appear before the Investigating Officer on any
Monday as directed by the court below. That also indicates that
the petitioner violated the conditions of the order granting bail.


       10.      Now the question to be considered is as to whether
the learned Magistrate is having the power to cancel the bail
under Section 437 (5) of the Code.


       11. In James George (supra), the learned Single Judge held
thus:


                 "The provisions contained under Sections 439
                (2) Cr.P.C. and 437 (5) Cr.P.C. are not meant for
                cancellation of bail; whereas those provisions are
                meant for arrest of an accused who was

                 enlarged on bail".


       12. A Division Bench of this Court in Latheef @ Abdul
Latheef v. State of Kerala [2011 (2) KLT 231 held thus:


                "In the light of the decisions cited supra, there is
                no doubt in our mind that the Magistrate who
                granted bail under S.437 (1) and (2) Cr.P.C. has
                the right to cancel the bail under S. 437(5) of the
                Cr.P.C. Sec. 437 (5) is the source of power for the
                Magistrate to cancel the bail granted under Sec.
                437 (1) and (2) Cr.P.C."


It is clear from the above decision of the Division Bench that the
Magistrate has power to cancel the bail granted by him invoking
the provisions of Section 437 (5) of the Code. Therefore, the
argument in this regard fails.


       13. Now the question to be considered is as to whether the
Court can cancel the bail granted under proviso to Section 167
(2) of the Code invoking the power under Sec. 437 (5) of the
Code.

                    
       14. The Apex Court in Bashir v. State of Haryana [AIR
1978 SC 55] held that the bail granted under Section 167(2) of
the Code has the same incidents           as the bail granted under
Chapter 33.


       15.       Section 437 comes under Chapter 33 of the Code.

Therefore, once the bail is granted under the proviso to Section

167 (2) of the Code, it has the same incidents as the bail granted

under sub-section (1) or sub-section (2) of Section 437 of the

Code.       Consequently, the bail granted under Section 167 (2) of

the Code can be cancelled invoking the provisions under Section

437 (5) of the Code.


       16. The Apex Court in Reghuvir Singh and Others v.
State of Bihar [AIR 1987 SC 149] held that when an accused is
granted bail whether under the proviso to Section 167 (2) or
under the provisions of Chapter 33, the only way to cancel the
bail is to proceed under Section 437 (5) or 439 (2) of the Code.


       17. Thus, it is explicit from the above decisions that even if
the bail is granted under proviso to Sec. 167 (2) of the Code, the
Magistrate is having power to cancel the bail under Section 437

                                
(5) of the Code. For the above reasons, the argument advanced by
the learned counsel for the petitioner in this regard lacks merits.


       18.      Having gone through the order impugned, I find no
reason to hold that the order impugned suffers from any
infirmity, warranting interference by this Court.


       In the result, this petition stands dismissed.
       Dated this the 11th day of November, 2015.




                                              B. SUDHEENDRA KUMAR,
                                                        JUDGE.




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