Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., reiterated the law laid down by the Supreme Court in the case of Pradip Ram v. State of Jharkhand, (2019) 17 SCC 326 wherein it was held:

“where the accused is bailed out under orders of the Court and new offences are added including the offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the Court before granting permission to arrest an accused on the basis of new offences. The Powers under Sections 437(5) and 439(2) are wide powers granted to the Courts by the legislature under which Court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to the earlier offences.”

In the instant case, the petitioner was accused in an FIR registered under Sections 304(A), 279, 337, 338 and 427 of Penal Code, 1860 read with 184, 134(A)(B) of the Motor Vehicles Act, 1988.

The above said offences were bailable and hence the petitioner was released on bail under Section 436 of the Code of Criminal Procedure, 1973 by the Judicial Magistrate.

Later, the respondent-State sought for the addition of offence under Section 304-II of the IPC and Section 65(A) of the Prohibition Act. The said offence was non-bailable and triable by the Sessions Court. Thereafter the respondent moved an application for cancellation of bail earlier granted to the petitioner. The Judicial Magistrate declined such application but directed the petitioner to surrender before the Court within ten days and apply for bail for the newly added cognizable and non-bailable offences.

Petitioner approached the High Court contending that the prosecution could not have filed an application under Section 437(5) CrPC and further that the Judicial Magistrate had no jurisdiction to entertain the application since the petitioner was granted bail under Section 436 CrPC.

Hence, the contention was that since the petitioner had been granted bail under Section 436, the application under Section 437(5) was not maintainable. It was further contended that since the petitioner was granted bail under Section 436, the Judicial Magistrate had not acquired jurisdiction under Section 437(5) to entertain the application and, therefore, the impugned order directing the petitioner to surrender before the Court within ten days and apply for the bail in newly added cognizable offence was without jurisdiction.

Analysis, Law and Decision

High Court expressed that the petitioner was right in contending that, since the petitioner had been granted bail under Section 436 CrPC, prosecution could not have moved an application under Section 437(5) of the CrPC.

However, in facts of the case, the Judicial Magistrate did not actually exercise jurisdiction under Section 437(5), but by relying on the judgment of the Supreme Court in the case of Pradip Ram (Supra) suggested the petitioner to apply for bail in the newly added cognizable and non-bailable offence. Obviously, condition (2) of the operative order was based on the judgment of the Supreme Court in the Case of Pradip Ram (Supra) wherein the Supreme Court has summarised the law in paragraph 31 relating to the issue in question. Therefore, directions contained in Clause (2) of the operative order could not be faulted with.

Further, in so far as Clause (3) of the operative order was concerned, the permission to arrest was granted pursuant to a subsequent application/intimation and not in the application preferred by the prosecution seeking cancellation of petitioner’s bail.

In view of the above, petition was dismissed and disposed of. [Rohan Suni Abbott v. State of Maharashtra, 2021 SCC OnLine Bom 3912, decided on 15-11-2021]

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: Raja Vijayaraghavan V., J. was allowed a criminal petition filed by persons accused of smuggling gold and foreign currency, by concealing the same in their checked-in baggage at the Cochin International Airport, and set aside onerous conditions for their bail.

Petitioners’ voluntary statement was recorded by the Superintendent of Customs, Air Intelligence Unit, Cochin and they were placed under arrest for offence under Sections 132 and 135 of the Customs Act, 1962 which are non-cognizable and bailable offences. Being bailable offences, the customs officer, exercising his powers under Section 104 (3) of the Customs Act, granted them bail on the following conditions:

  • Two persons to stand surety, on whose behalf the petitioner/accused shall be released on bail.
  • Petitioners shall report to the Superintendent of Customs, Air Intelligence Unit, Nedumbassery on the 10th day of every month between 10 a.m. and 2 p.m. until the case was finally decided.
  • Petitioners shall report to the investigating officer as and when required.
  • Petitioners shall not, during the period of bail, get involved in any offence.

Premjith Menon, learned counsel appearing for the petitioners, submitted that the offences being bailable, petitioners could claim to be released on bail as of right. He submitted that under Section 104 of the Customs Act, for the purpose of releasing an arrested person on bail, a customs officer is subject to the same provisions as the officer-in-charge of a police station and thus except the requirement of surety, the imposition of other conditions for bail was illegal.

The Court opined that grant of bail is a matter of course in respect of bailable offences. It may be given either by the police officer in charge of a police station having the accused in his custody or by the Court. The customs officer exercising his powers under Section 104 of the Act, acts akin to officer-in-charge of a police station as provided under Section 436 of the Code of Criminal Procedure, 1973. A police officer or even the Court has no discretion in releasing the accused on bail under Section 436 CrPC, and any condition except the demand for security with sureties cannot be imposed on the accused. Reliance in this regard was placed on Talab Haji Hussain v. Madhukar Purshottam Mondkar, AIR 1958 SC 376.

In view of the above, petitioners were enlarged on bail and it was held that the customs officer was bereft of jurisdiction to impose onerous conditions for the same. The three conditions for bail except that of surety were set aside.[Joseph Santhosh Kottarathil Alexander v. Superintendent of Customs (AIU), 2019 SCC OnLine Ker 1321, decided on 09-04-2019]