Decided on June 16,1967



- (1.) THIS revision petition has been preferred on behalf of one Joseph Chacko and his son Chacko Kurian, accused Nos. 1 and 2 in Crime No. 50/67 of the Pulincunnu Police Station. They are accused of having committed offences falling under S. 454, 457, 380 and 461 IPC. as is disclosed by the FIR. filed by the police. The allegation against them is that they removed 1421/2 quintals out of 144 quintals of paddy loaned to the State Warehouse, Pulincunnu without the knowledge or consent of the Superintendent of the Warehouse and it is the Superintendent who has filed the F. I. statement in the case. According to the petitioners, the paddy in question forms the subject matter of the seizure order dated 141967 passed against the 1st petitioner by the Special tahsildar for paddy procurement, Alleppey in respect of the stock of paddy in his possession. A writ petition was filed by the 1st petitioner before this court (O. P. No. 1467 of 1967) for quashing the said order of seizure. Along with the O. P. , a motion for injunction to restrain the Tahsildar from seizing the paddy was also made. The O. P. was admitted and an interim injunction was also granted as prayed for by him. The petitioners would aver that the injunction order was served on the Special Tahsildar on 26 51967 by a special messenger from this court. It was in the interval that the present case was taken alleging house trespass, theft of paddy etc. The petitioners would further allege that on the basis of the report made by the Superintendent of the Warehouse, a batch of constables accompanied by the Superintendent entered their house on 5 61967 at 8 a. m. and seized from the house the entire paddy kept by him including seed paddy. THIS seizure was made at a time when the petitioners were not present in the house. The paddy so seized is stated to be kept in the Police Station. Now their fear is that the police are after them, to arrest them. So they appeared before the Sub-Magistrate, Ambalapuzha on 8 61967 and moved for bail. The prayer was refused by the learned Magistrate on the ground that the petitioners have not been arrested so far and that no charge sheet also has been filed before court. They thereupon moved the district Magistrate of Alleppey but there also their prayer was refused on the same ground. Both the Magistrates have quoted in their order a Single Bench decision of this court in Paily v. State of Kerala (1966 KLT. 968), in support of the view taken by them. On a review of the position in the light of the decision in Paily v. State of Kerala (1966 KLT. 968) and other decisions bearing on the question, I am led to the conclusion that the bar of "anticipatory bail" referred to by the learned Magistrates cannot arise in the present case. Sub-section 1 of S. 497 of the Code of Criminal procedure which is the relevant section in this connection reads: "when any person accused of or 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, 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 offence punishable with death or imprisonment for life:"
(2.) THE latter clause which refers to capital offences or offences punishable with imprisonment for life have admittedly no application here. THE portion underlined was inserted by the amended Act (Act 26/55 ). It follows from a plain reading of the section that a person accused or suspected of the commission of an offence may be released on bail if he is arrested or detained or appears or has been brought before the court. In the present instance, the petitioners on getting information that a case has been taken against them, appeared before the Magistrate and applied for bail. THE view taken by the lower courts is that the bail cannot be granted to the accused person who has not been arrested or placed in the custody of the police or the court. But the learned Magistrates have lost sight of the fact that when a person suspected of the commission of an offence has appeared before the court, his very physical presence results in his placing himself in the custody of the court. It was held so in State of Uttar Pradesh v. Kailash (AIR. 1955 All. 98.) THE learned judge in that case held further: "whether the court actually orders his being taken in custody or allows him bail at once, notionally it must be held that the person was in the custody of the court. Ordinarily when an accused person appears before the Magistrate in whose court the accused appear who do not desire to be arrested by the police the immediate order that such court passes is that the applicant be taken in custody"' THE above decision was followed in Abdul Karim v. State of Madhya Pradesh (AIR. 1960 M. P. 54) where it was held: "the words "suspected of commission of an offence" are words of great amplitude and the suspicion may be there much before any proceedings by the police. By introducing these words by the amendment Act of 1955, the legislature has conferred wider powdes on the court. . . When a person suspected of the commission of an offence has actually appeared before the court his very presence results in his placing himself in the custody of the court and that such a person can be released on bail". Thus when the two petitioners physically appeared before the Magistrate, in essence they had passed on to the custody of the court and the court very well could have dealt with their application on its merits and passed appropriate orders. Instead of doing that, their application has summarily been rejected on the authority of the Single Bench decision of this court reported in 1966 KLT. 968. But on going through the said decision I was not able to see anything preventing the courts from releasing on bail an accused person not in police custody, appearing before the court and applying for bail. All that the learned judge has observed in that case is that the release of the person must be from legal custody. THE learned judge would observe: " "bail" means release of a person from legal custody. If therefore, the grant of bail to a person presupposes that he is in the custody of the police or of the court or if not already in such custody is required, to surrender to such custody, then it is unreal to talk of any person who is not in such restraint being granted bail". We have already seen in the case on hand that the accused were bodily present before the court and that is tantamount to surrendering themselves to the custody of the court. It is impossible in such circumstances to argue that the persons concerned are neither under police custody nor under the custody of the court. In some decisions it has been held that the word "appears" in S. 496 and 497 does not contemplate the appearance through counsel and for the accused to get himself immediately released on bail he should appear physically before court and this view is seen to have been favoured in the Single Bench decision of this Court quoted already. But that difficulty however is not present in the case now under consideration, because the petitioners before us had appeared in person and not through advocates. It has also been held in some cases that there should be some restraint or other on the person concerned before the court is moved for bail, but it is common knowledge that a person accused of a crime is always under the shadow of fear and that is sufficient restraint on his movements. THE Division Bench of the Hyderabad High Court has held so in sunder Singh v. THE State (AIR 1954 Hyd. 55) THE learned judges would observe: "the next point argued was that there is no warrant issued against the accused and, therefore, be cannot be deemed to be in some form of restraint. We are unable to accept this view so far as the particular facts of this case are concerned. THE Criminal Procedure Code authorises the officer in charge of the Police Station to arrest the accused without warrant in a non-bailable offence. In this case the F. I. report under S. 391, is that a non-bailable offence, has been registered. THEre is now nothing to prevent the officer to arrest the accused without a warrant. It cannot be said, therefore that the accused is not without restraint. THE threat of the power of the officer in charge of the investigation of arresting the accused is always hanging on his dead. That is a sufficient restraint, in our opinion, for the purposes of this section". Anticipatory bail means that the accused anticipates that some non-bailable offence may be levelled against him and he may be arrested and in that expectation he goes to a Magistrate and moves for bail. But in the present case there is no question of such anticipation because actually a non-bailable offence has been registered against them and they are accused in the fullest sense of the term. Of the 4 sections of the Penal Code under which the case has been registered, all the 3, viz. , S. 454, 457 and 380 are non-bailable. I am therefore of the view that their application for bail is quite competent and they may be enlarged, on suitable conditions. Their prayer is hence granted and they are admitted to bail on their executing personal bonds for Rs. 2000/-each, with 2 solvent sureties each, for a like sum to the satisfaction of the Sub Magistrate, ambalapuzha. Allowed.;

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