The Extent Of The Power Of A Magistrate To Grant Bail In A Non-Bailable Offence Triable By A Court Of Session/ Special Court

• THE PREFATORY FACTS

What prompted me to write this article is the decision dated 10-09-2021 of the High Court of Kerala in Venugopal K. N. v. State of Kerala (Crl. Appeal No. 254/2021), reported in 2022 (2) KHC 620.

2. As per the facts discernible from the reported decision, an offence punishable presumably under Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act of 1989 ("SC ST Act" for short) together with other offences was alleged against the accused/ appellant in that case. There are innumerable offences under Section 3 of the SC ST Act with punishments ranging from 6 months to life imprisonment and even death penalty. Sections 4 and 13 are other penal provisions under the Act. Which was the specific offences under the SC ST Act that was charged against the appellant in that case is not ascertainable from the judgment which, however, appears to have been marked for reporting. From the submissions made by the Public Prosecutor before the High Court, an offence under Section 370 (5) IPC (trafficking of more than one minor punishable with rigorous imprisonment for not less than 14 years but may extend to imprisonment for life and fine), was also alleged against the appellant. The date of occurrence was 30-06-2016. None of the other offences alleged against the accused/ appellant is mentioned in the reported decision. The exact case of the prosecution and how the police came to know of the occurrence etc. also cannot be gathered from the reported decision. The Shornur Railway Police registered Crime No: 240/ 2016. The case subsequently appears to have been taken over by the Crime Branch Police, Palakkad where it was registered as Crime No: 292/ CB/ PKD/ 2017. Consequent on a charge-sheet having been filed against the accused by the Crime Branch Police before the Judicial Magistrate of the first class ("JMFC"), Ottapalam, the said Magistrate took the case on file as C. P. No: 2/ 2021. The accused was not arrested during the stage of investigation of that case.

3. Upon receiving summons from the said Magistrate, the accused filed an application for anticipatory bail before the Sessions Court, Palakkad. His application was dismissed by the Sessions Court. Thereupon he filed an appeal under Section 14 A (2) of the SC ST Act challenging the order of the Sessions Judge. The learned Judge of the High Court, taking note of the prohibition against the grant of anticipatory bail under Section 18 of the SC ST Act, was disinclined to grant anticipatory bail to the accused. However, relying on Antony Cherian v. Purushothaman Pillai 1987 (2) KLT 125; Shanu v. State of Kerala 2000 (3) KLT 452; Sukumari v. State of Kerala 2001 (1) KLT 22 and Sreekumar v. State of Kerala 2008 (3) KLT 748, cited by the learned counsel appearing for the accused/ appellant, the High Court permitted the appellant to file an application for regular bail before the committal Court where the case was pending and directed that Court to consider and dispose of the application in accordance with law.

• What is a "non-bailable offence" ?

4. There exists some fallacious notions among some members of the legal fraternity on certain elementary aspects of law. My aim, through this article, is to disabuse the minds of those members who are still entertaining certain lingering misconceptions in law. The first is regarding "non-bailable offence". Section 2 (a) Cr.P.C. defines a "bailable offence" as follows:-

"bailable offence" means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence."

So, a "non-bailable offence" is an offence other than a "bailable offence" Column 5 of Part – I of the First Schedule to Cr.P.C. dealing with offences under the Indian Penal Code, 1860 ("IPC" for short), shows which all offences are "bailable" and which all offences are "non-bailable". Part – II of the said Schedule deals with offences under other laws. If an offence under any law other than the IPC, is punishable with imprisonment for three years and above, then the third column of that Part indicates that such an offence is a "non-bailable" offence. The SC ST Act does not declare that any of the offences thereunder shall be "cognizable" or "non-bailable". There are, however, both cognizable and non-cognizable and bailable and non-bailable offences under the SC ST Act, if the guideline given in Part II of the First Schedule to Cr.P.C., is applied. By virtue of Section 4 (2) Cr.P.C., in the absence of any provision to the contrary, the provisions in the Cr.P.C. will apply to cases covered by the SC ST Act. In the reported decision, we are left to make a wild guess regarding the offences under the SC ST Act.

• Non-bailable offence does not mean that bail cannot be granted at all

5. There is an erroneous belief that if the offence is "non-bailable", then bail cannot be granted. In the case of "non-cognizable offence" also there is an equally mistaken notion that if the offence involved is a "non-cognizable offence", the criminal Court need not take cognizance of the offence. I remember to have read the verdict of a High Court which had quashed the cognizance taken by a Magistrate in respect of a "non-cognizable offence" and found fault with the Magistrate for doing so. The Judge was evidently labouring under the mistaken impression that the Magistrate cannot take cognizance in respect of a "non-cognizable offence". Since the curial act of taking cognizance of an offence is not the subject matter of the present discussion, I do not wish to digress into unwanted areas.

6. As mentioned earlier a "non-bailable offence" does not mean that bail cannot be granted to an accused who is alleged to have committed such an offence. The short title of Section 437 Cr.P.C. itself reads as follows:-

"When bail may be taken in case of non-bailable offence".

This means that, far from suggesting that in the case of non-bailable offences bail cannot be taken, the Section enumerates the various situations in which bail may be granted in the case of "non-bailable offences".

• Even an SHO can grant bail in respect of a "non-cognizable offence"

7. A reading of sub-sections (1), (2) and (4) of Section 437 Cr.P.C shows that even an officer-in-charge of a police station (SHO) is entitled to release on bail a person accused or suspected of having committed a non-bailable offence. But the SHO cannot grant bail in a case covered by the first proviso to Section 437 (1) Cr.P.C. The Court alone can grant such bail. Similarly, the SHO cannot direct the accused person who was released on bail, be arrested and committed to custody. Such a power also can be exercised only by the Court under Section 437 (5) Cr.P.C. In my view, there should have been a provision enabling a police officer to report to the Court about non-compliance of any of the bail conditions imposed by the Court or by the police officer.

• Which is the court that can exercise jurisdiction under Section 437 Cr.P.C. ?

8. Yet another fallacy which some members of our fraternity are labouring under is that Section 437 Cr.P.C. which specifically excludes a "Court other than the High Court or Court of Session" from its purview, is applicable only to "Magistrates". Sub-section (1) of Section 437 does not mention the word "Magistrate" at all. The word "Magistrate" finds a place only in Section 437 (6) Cr.P.C. since the above provision is a sort of "default bail" to be granted in the discretion of a Magistrate only in cases triable by Magistrates. Everywhere else in Section 437, the expression used is "Court" excluding the High Court or a Court of Session. The expression "Court" is not defined in the Cr.P.C. Section 6 Cr.P.C enumerates the 4 classes of Criminal Courts, in addition to the "High Courts" and the "Courts under other laws". The opening words of Section 6 read – "Besides the High Courts and Courts constituted under any law other than this Code". So for the purpose of Section 437 (1) Cr.P.C., the word "Court" is to be understood as "all Courts including Magistrate Courts enumerated under Section 6 and also the Courts constituted under other laws as referred to in Section 6 Cr.P.C but excluding the "High Court" and the "Court of Session".

• Can the "Nearest Magistrate" ordering detention under Section 167 (2) Cr.P.C., grant bail, if he is not the jurisdictional Magistrate ?

9. Yet another misconception is regarding the question as to which is the Court/ Magistrate having jurisdiction to grant bail to an accused person who has been arrested. Barring a few exceptions like Section 187 Cr.P.C. or the second proviso to Section 81 Cr.P.C. etc., bail can be granted to an accused person only by the Court/ Magistrate having jurisdiction to try the case or to commit the case for trial. (Vide Section 167 (2) Cr.P.C. In para 12 of Singeshwar Singh v. State of Bihar 1976 Cri.L.J. 1511 a Division Bench of the Patna High Court speaking through Justice S. Sarwar Ali has held that the expression "Court" in Sections 436 and 437 Cr.P.C means the Court having the jurisdiction to take cognizance of the offence). The nearest Magistrate before whom a person arrested is to be mandatorily produced within 24 hours of his arrest (as enjoined by Article 22 (2) of the Constitution of India or under Sections 57 or 167 (1) Cr.P.C), can only make the first remand (first order of detention) for a total period of 15 days, if such Magistrate is not the "jurisdictional Magistrate".

• Which is the "jurisdicitional Court" for the purpose of Section 167 (2) and Sections 436 and 437 Cr.P.C. ?

10. Section 167 (2) Cr.P.C itself states that if the Magistrate ordering the first remand is not the Magistrate having jurisdiction to try the case or commit it for trial, the accused has to be forwarded to the Magistrate having such jurisdiction. The words "such jurisdiction" mean jurisdiction either to try the case or commit the case for trial. It has already been seen from the verdict in Singeshwar Singh (Supra) that for the purpose of Section 436 and 437 Cr.P.C. the jurisdictional Court is the Court having the authority to take cognizance of the offence. But, most of the Special Courts constituted under special statutes are also "deemed Sessions Courts". So, such Special Courts will not come under Section 437 (1) Cr.P.C., they being deemed sessions Courts. That is the reason why bail applications before such Special Courts are filed by invoking Section 439 (1) (a) Cr.P.C.

11. A reading of Section 156 (1) read with Chapter XIII Cr.P.C. shows that the jurisdiction of the Court for "inquiry" and "trial" is co-related with the jurisdiction of the police station. (Vide para 5 of T. P. Nandakumar v. State of Kerala 2008 Cri.L.J. 298 = 2007 (4) KLT 775 and para 11 of Anil Kumar v. Sindhu 2009 (3) KLT 359). Hence, if a "non-bailable offence" is committed within the local limits of a particular police station which in turn is linked to the local limits of a particular Magistrate, then such offence can be tried only by such Magistrate if it is a magisterial offence. The Police can file the charge-sheet only before such Magistrate. If it is an offence triable exclusively by a Court of Session, then the appropriate Magistrate who can receive the charge-sheet and commit the case to the Court of Session, will be the Magistrate who is competent to entertain a bail application as well. Thus, in the case of an offence committed in Kerala, a Magistrate at Delhi cannot deal with the bail application of the accused unless such Magistrates at Delhi has jurisdiction to inquire into or try such offence under any of the provisions of Chapter XIII Cr.P.C.

• What is the meaning of the words "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life" occurring in Clause (i) of Section 437 (1) Cr.P.C ?

12. There is a bar under Clause (i) of Section 437 (1) Cr.P.C against releasing a person "if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life". (Vide paras 8 to 10 and 16 of Sundeep Kumar Bafna v. State of Maharashtra (2014) 16 SCC 623 = AIR 2014 SC 1745 – K. S. P. Radhakrishnan, Vikramajit Sen – JJ ; Prahlad Singh Bhati v. NCT of Delhi AIR 2001 SC 1444 – K.T. Thomas, R.P. Sethi – JJ). But, it is not a total bar. If in a given case, the Court is satisfied that there are no reasonable grounds for believing that the accused has been guilty of an offence covered by Clause (i) of Section 437 (1) Cr.P.C., the Court will be justified in granting bail to the accused. (Vide the end of para 11 of Prahlad Singh Bhati v. NCT of Delhi AIR 2001 SC 1444 – R.P. Sethi – JJ. This is also the reason why notwithstanding the said bar, the first proviso to Section 437 (1) Cr.P.C gives a discretion to the Court (not to the police officer) to grant bail to a "person under the age of 16", or to a "woman" or to a "sick or infirm person". But, when it comes to the power of the High Court or a Court of Session under Section 439 (1) (a) Cr.P.C., there is no such restriction as in Clauses (i) and (ii) of Section 437 (1) Cr.P.C.

13. Some reported decisions take the view that the words "death or imprisonment for life" should be read "conjunctively" and some others taking the view that those words should be read "disjunctively".

• The Kerala High Court has taken both views. In Satyan v. State of Kerala 1981 KLT 606 – Janaki Amma – J, the view taken was both the punishments should be read conjunctively. There the offence involved was one punishable under Section 326 IPC for which the punishment can go up to imprisonment for life but is triable by a Magistrate of the first class.
• In Chellappan v. State of Kerala 1987 (1) KLT 435 – Shamsuddin – J, the said punishments were read disjunctively. There the offence involved was one punishable under Section 436 IPC for which the punishment prescribed is imprisonment for life or imprisonment for 10 years and triable by a Court of Session.
• In Antony Cherian v. State of Kerala 1987 (2) KLT 125 – K.T. Thomas – J, also the two punishments were read disjunctively. There the offence involved was one punishable under Section 395 IPC for which the punishment prescribed is imprisonment for life or rigorous imprisonment for 10 years and triable by a Court of Session.
• In Sukumari v. State of Kerala 2001 (1) KLT 22 – R. Rajendra Babu – J, following Antony Cherian (supra) held that the two punishments were to be read disjunctively. There the question was whether the accused persons who had allegedly committed an offence punishable under Section 55 of the Kerala Abkari Act and facing committal proceedings, could be released on bail by the committal Magistrate. It was held that the punishment did not attract Clause (i) of Section 437 (1) Cr.P.C and although the offence was triable exclusively by a Court of Session, the bar under the aforesaid Clause (i) would not deprive the committal Magistrate of his jurisdiction to grant bail.
• In Sreekumar v. State of Kerala 2008 (3) KLT 748 – R. Basant – J, the offences involved were Section 326 IPC and Section 27 (2) of the Arms Act, 1959 (punishable with the imprisonment from 7 years up to life and triable by a Court of Session). It was held that even though the accused was shown as absconding by the police, since he appeared before the committal Magistrate in response to summons and not warrant, instead of remanding him to custody, the Magistrate should have granted him bail.

None of the five reported decisions given above involved an offence attracting Clause (i) of Section 437 (1) Cr.P.C.

14. In my humble opinion, the aforesaid expressions "conjunctive" and "disjunctive" may not be appropriate in the present context.

To attract the bar under the aforesaid Clause (i) of Section 437 (1) Cr.P.C, both the punishments of "death or imprisonment for life" should be prescribed for the same offence and should be capable of being awarded in the alternative for the same offence.

"Murder" punishable under Section 302 IPC is one such offence. Yet another similar offence is one punishable under Section 121 IPC (waging war etc. against the Government of India). But in the case of an offence punishable under Section 305 IPC (abetment of suicide committed by a child or insane or delirious person or an idiot or an intoxicated person), or Section 307 IPC (Attempt to murder by a life convict if hurt is caused to any person), even though death penalty is one of the punishments, life imprisonment is not the only other alternative for those offences so as to attract the bar under Clause (i) of Section 437 (1) Cr.P.C.

15. Even though there is no legal bar in the jurisdictional Magistrate (i.e. the Magistrate competent to commit the case ) granting bail in cases triable exclusively by a Court of Session (except those covered by Clause (i) of Section 437 (1) Cr.P.C), there is a word of caution by the Supreme Court in para 11 of Prahlad Singh Bhati v. NCT of Delhi AIR 2001 SC 1444 – K.T. Thomas, R.P. Sethi – JJ, to the effect that if the offence is punishable with death or imprisonment for life and triable exclusively by a Court of Session the Magistrate may, in his wisdom, refrain from exercising the powers of granting bail and refer the accused to approach the higher Courts, unless he is fully satisfied that there is no reasonable ground for believing that the accused has been guilty of the aforesaid offence.

• Can the Special Court under the SC ST Act directly take cognizance of the offences under the said Act ?

16. The Special Courts under the SC ST Act were originally constituted under the old Section 14 of the said Act by the respective State Governments specifying any of the existing Sessions Courts to be Special Courts. Since the Special Courts are basically Courts of Session, the Supreme Court of India in para 8 of Gangula Ashok v. State of A.P. (2000) 2 SCC 504 = AIR 2000 SC 740 – K.T. Thomas – J, held that such Special Court can take cognizance of the specified offences only on a committal under Section 193 Cr.P.C. The above hurdle was removed by the Parliament by enacting the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 with effect from 26-01-2016. As per the second proviso to the amended Section 14 (1) of the Act, the Special Courts have been given the power to directly take cognizance of offences under the Act, thereby dispensing with the committal of the case to the Special Court.

• The mistakes in the reported judgment

17. The judgment in Venugopal K.N. suffers from the following flaws:-

1. The occurrence involved in the case took place on 30-06-2016 which is long after 26-01-2016 i.e. the date of coming into force of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015. So, with effect from 26-01-2016 all Special Judges can directly take cognizance of offences under the SC ST Act without any committal.
2. The Crime Branch police in this case had no authority at all to submit the charge-sheet before the JMFC, Ottappalam. They should have filed the charge-sheet directly before the Special Court.
3. The JMFC, Ottappalam should not have received the charge-sheet on its file, much less, initiate committal proceedings. Having received the charge-sheet without any jurisdiction, the said Magistrate should have returned the charge-sheet to be filed before the Special Court.
4. Reliance placed on Shanu v. State of Kerala 2000 (3) KLT 452 – K.A. Mohamed Shafi – J, has no application to the present case since the offences under the SC ST Act involved therein were punishable with imprisonment from 6 months to 5 years and fine and the proceedings in that case was pending before the committal Magistrate. That decision was rendered at a time when committal to the Special Court was necessary.
5. Since the JMFC, Ottappalam had nothing to do with the case, the permission sought on behalf of the appellant and granted by the High Court for filing an application for regular bail before the JMFC, Ottappalam and the direction given to the JMFC to dispose of the same, were all against law. The permission should have been actually sought and given only for moving an application for regular bail before the Special Court.

18. It is strange that the learned counsel (who is an advocate of good standing at the Bar) appearing for the appellant as well as the learned Public Prosecutor who defended the State, were not able to place the correct factual and legal position before the learned Judge.

The author is a former Judge, High Court of Kerala.