Rasiklal vs Kishore

CRIMINAL APPEAL NO. OF 2009 (Arising out of S.L.P. (Criminal) No. 4008 of 2008)

Rasiklal ... Appellant

Versus

Kishore s/o Khanchand Wadhwani ... Respondent

JUDGMENT

J.M. Panchal, J.

Leave granted.

2. The appellant is accused in Criminal Complaint No.

1604 of 2005 filed in the court of learned Judicial

Magistrate First Class, Indore, M.P., for alleged 2 commission of offences punishable under Sections

499 and 500 of the Indian Penal Code and assails

the order dated March 24, 2008, rendered by the

learned Single Judge of High Court of Madhya

Pradesh, Bench at Indore, in Criminal Revision No.

1362 of 2006 by which bail granted to the appellant

by the learned Judicial Magistrate First Class,

Indore, M.P. on December 1, 2006 is cancelled on

the ground that the order granting bail was passed

by the learned Judicial Magistrate First Class,

Indore, without hearing the original complainant

and was, therefore, bad for violation of principles of

natural justice.

3. It is the case of the respondent that the appellant

gave an interview on December 15, 2004 on Star

News TV Channel and defamed him. The

respondent, therefore, filed a Criminal Complaint

No. 1604 of 2005 in the court of learned Judicial

Magistrate First Class, Indore, M.P. on January 27, 3 2005 for alleged commission of offences punishable

under Sections 499 and 500 of the Indian Penal

Code. The learned Judicial Magistrate examined

the respondent on oath as required by Section 200

of the Code of Criminal Procedure, 1973 and issued

summons to the appellant for commission of alleged

offences under Sections 499 and 500 of the Indian

Penal Code vide order dated May 9, 2006. The

appellant appeared before the court on November

20, 2006 and submitted an application under

Section 317 of the Code of Criminal Procedure,

1973 seeking exemption for personal appearance

along with vakalatnama of his counsel. In the said

application prayer for grant of bail was also made.

The application was fixed for hearing on December

26, 2006. However, on December 1, 2006 the

appellant filed an application mentioning his

appearance before the court and to consider his

prayer for grant of bail under Section 436 of the

Code of Criminal Procedure, 1973 as offences 4 alleged to have been committed by him under

Sections 499 and 500 of the Indian Penal Code are

bailable. The application was heard on the day on

which it was filed. The learned Magistrate noticed

that the offences alleged to have been committed by

the appellant were bailable. Therefore, the

appellant was admitted to bail on his furnishing a

surety in the sum of Rs.5,000/- and also furnishing

a bond of the same amount. While enlarging the

appellant on bail the learned Magistrate imposed a

condition on the appellant that he would appear

before the court on each date of hearing or else he

would be taken into custody and sent to jail. The

order dated December 1, 2006 passed by the

learned Judicial Magistrate further indicates that in

compliance of the direction issued by the court the

appellant furnished a bail bond in the sum of

Rs.5,000/- and also executed a bond for the said

amount and that the bail bonds were accepted by 5 the court after which the appellant was released on

bail.

4. The respondent, who is original complainant, filed

Criminal Revision No. 1362 of 2006 in the High

Court of Madhya Pradesh, Bench at Indore, on

December 26, 2006 for cancelling the bail granted

to the appellant by the learned Judicial Magistrate

First Class, Indore, on the ground that he was not

heard and, therefore, the order was violative of

principles of natural justice. The learned Single

Judge, before whom the revision application was

notified for hearing, had issued notice to the

appellant but the appellant did not remain present

before the High Court. The revision application

filed by the respondent was taken up for final

disposal on March 24, 2008. The learned Single

Judge, by order dated March 24, 2008, has

cancelled the bail granted to the appellant by the

learned Judicial Magistrate on the ground that the 6 respondent, who was original complainant, was not

heard and, therefore, the order granting bail

violates the principles of natural justice. After

cancelling the bail granted to the appellant the

learned Single Judge remitted the matter to the

court below with a direction that the matter be

taken up according to law between the parties

relating to the grant of bail to the appellant. Feeling

aggrieved the appellant has invoked appellate

jurisdiction of this Court under Article 136 of the

Constitution.

5. This Court has heard the learned counsel for the

parties and taken into consideration the documents

forming part of the appeal.

6. As is evident, the appellant is being tried for alleged

commission of offences punishable under Sections

499 and 500 of the Indian Penal Code. Admittedly,

both the offences are bailable. The grant of bail to a

person accused of bailable offence is governed by 7 the provisions of Section 436 of the Code of

Criminal Procedure, 1973. The said section reads

as under: -

"436 - In what cases bail to be taken - (1) When any person other than a person accused of a 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, and is prepared at any time while in the custody of such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:

Provided that such officer or Court, if he or it thinks fit, may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:

Explanation. - Where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to presume that he is an indigent person for the purposes of this proviso.

Provided further that nothing in this section shall be deemed to affect the provisions of sub- section (3) of section 116 or section 446A.

8 (2) Notwithstanding anything contained in sub-

section (1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446."

There is no doubt that under Section 436 of the Code of

Criminal Procedure a person accused of a bailable

offence is entitled to be released on bail pending his trial.

As soon as it appears that the accused person is

prepared to give bail, the police officer or the court before

whom he offers to give bail, is bound to release him on

such terms as to bail as may appear to the officer or the

court to be reasonable. It would even be open to the

officer or the court to discharge such person on his

executing a bond as provided in the Section instead of

taking bail from him. The position of persons accused of

non-bailable offence is entirely different. The right to 9 claim bail granted by Section 436 of the Code in a

bailable offence is an absolute and indefeasible right. In

bailable offences there is no question of discretion in

granting bail as the words of Section 436 are imperative.

The only choice available to the officer or the court is as

between taking a simple recognizance of the accused and

demanding security with surety. The persons

contemplated by Section 436 cannot be taken into

custody unless they are unable or willing to offer bail or

to execute personal bonds. There is no manner of doubt

that bail in a bailable offence can be claimed by accused

as of right and the officer or the court, as the case may

be, is bound to release the accused on bail if he is willing

to abide by reasonable conditions which may be imposed

on him.

7. There is no express provision in the Code

prohibiting the court from re-arresting an accused

released on bail under Section 436 of the Code.

However, the settled judicial trend is that the High 10 Court can cancel the bail bond while exercising

inherent powers under Section 482 of the Code.

According to this Court a person accused of a

bailable offence is entitled to be released on bail

pending his trial, but he forfeits his right to be

released on bail if his conduct subsequent to his

release is found to be prejudicial to a fair trial. And

this forfeiture can be made effective by invoking the

inherent powers of the High Court under Section

482 of the Code. [See: Talab Haji Hussain vs.

Madhukar Purushottam Mondkar and another

(1958 SCR 1226)] reiterated by a Constitution

Bench in Ratilal Bhanji Mithani v. Asstt. Collector of

Customs and Anr. (1967 (3) SCR 926)].

8. It may be noticed that sub-Section (2) of Section

436 of the 1973 Code empowers any court to refuse

bail without prejudice to action under Section 446

where a person fails to comply with the conditions

of bail bond giving effect to the view expressed by 11 this Court in the above mentioned case. However,

it is well settled that bail granted to an accused with

reference to bailable offence can be cancelled only if

the accused (1) misuses his liberty by indulging in

similar criminal activity, (2) interferes with the

course of investigation, (3) attempts to tamper with

evidence of witnesses, (4) threatens witnesses or

indulges in similar activities which would hamper

smooth investigation, (5) attempts to flee to another

country, (6) attempts to make himself scarce by

going underground or becoming unavailable to the

investigating agency, (7) attempts to place himself

beyond the reach of his surety, etc. These grounds

are illustrative and not exhaustive. However, a bail

granted to a person accused of bailable offence

cannot be cancelled on the ground that the

complainant was not heard. As mandated by

Section 436 of the Code what is to be ascertained

by the officer or the court is whether the offence

alleged to have been committed is a bailable offence 12 and whether he is ready to give bail as may be

directed by the officer or the court. When a police

officer releases a person accused of a bailable

offence, he is not required to hear the complainant

at all. Similarly, a court while exercising powers

under Section 436 of the Code is not bound to issue

notice to the complainant and hear him.

9. The contention raised by the learned counsel for the

respondent on the basis of decision of this Court in

Arun Kumar vs. State of Bihar and another [JT

2008 (2) SC 584], that the complainant should have

been heard by the Magistrate before granting bail to

the appellant, cannot be accepted. In the decision

relied upon by the learned counsel for the

respondent challenge was to the order passed by a

learned Single Judge of the Patna High Court

quashing the order passed by the learned Fast

Track Court holding that the respondent No. 2

therein was not juvenile and, therefore, there was 13 no need to refer his case to the Juvenile Justice

Board for ascertaining his age and then for trial.

The High Court was of the view that the prayer was

rejected only on the ground that two or three

witnesses were examined and though the accused

was in possession of school leaving certificate, mark

sheet, etc. to show that he was a juvenile, the

prayer could not have been rejected. This Court

found that the High Court in a very cryptic manner

had observed that the application of the accused

deserved to be allowed and directed the court below

to consider the accused as a juvenile and proceed

accordingly. Before this Court it was submitted by

the learned counsel for the informant that the

documents produced had been analysed by the trial

court and it was found at the time of framing charge

that he was major without any doubt. The

grievance was made on behalf of the informant

before this Court that the High Court did not even

consider as to how the conclusions of the trial court 14 suffered from any infirmity and merely referring to

the stand of the accused and even without

analyzing the correctness or otherwise of the

observations and conclusions made by the trial

court the learned Single Judge came to the

conclusion that the accused was a juvenile. This

Court concluded that the High Court had failed to

notice several relevant factors and no discussion

was made as to how the conclusions of the trial

court suffered from any infirmity. It was also

noticed by this Court that no notice was issued to

the appellant before the matter was disposed of. In

view of the above position the order impugned in

the appeal was set aside by this Court. To say the

least, the facts of the present case are quite

different from those mentioned in the above

reported decision. Therefore the ratio laid down in the said decision cannot be applied to the fact of the

instant case.

15

10. Even if notice had been issued to the respondent

before granting bail to the appellant, the respondent

could not have pointed out to the court that the

appellant had allegedly committed non-bailable

offences. As observed earlier, what has to be

ascertained by the officer or the court is as to

whether the person accused is alleged to have

committed bailable offences and if the same is

found to be in affirmative, the officer or the court

has no other alternative but to release such person

on bail if he is ready and willing to abide by

reasonable conditions, which may be imposed on

him. Having regard to the facts of the case this

Court is of the firm opinion that the bail granted to

the appellant for alleged commission of bailable

offence could not have been cancelled by the High

Court on the ground that the complainant was not

heard and, thus, principles of natural justice were

violated. Principles of natural justice is not a

`mantra' to be applied in vacuum in all cases. The 16 question as to what extent, the principles of natural

justice are required to be complied with, will depend

upon the facts of the case. They are not required to

be complied with when it will lead to an empty

formality (See State Bank of Patiala vs. S.K. Sharma

(1996 (3) SCC 364) and Karnataka State Road

Transport Corporation vs. S.G. Kotturappa (2005

(3) SCC 409). The impugned order is, therefore,

liable to be set aside.

11. For the foregoing reasons the appeal succeeds. The

order dated March 24, 2008, passed by the learned

Single Judge of High Court of Madhya Pradesh,

Bench at Indore, in Criminal Revision No. 1362 of

2006 cancelling the bail granted to the appellant by

the learned Judicial Magistrate is hereby set aside

and order dated December 1, 2006, passed by the

learned Judicial Magistrate First Class, Indore,

M.P., in Criminal Complaint No. 1604 of 2005 is

hereby restored.

17

12. The appeal accordingly stands disposed of.

..............................J. [R.V. Raveendran]

..............................J. [J.M. Panchal]

New Delhi;

February 20, 2009.