Crl. Mp. No. 1709/2015 Of………vs By Adv. Sri. Mvs. Namboothiry on 31 July, 2015

Crl. Mp. No. 1709/2015 Of………vs By Adv. Sri. Mvs. Namboothiry on 31 July, 2015

FACTS OF THE CASE

In this case, the application for bail in an NDPS case filed as Crl.M.P.No.1455/2015 was allowed by the learned Additional Sessions Judge-VIII, Ernakulam, without giving an opportunity of being heard to the Special Public Prosecutor for the ‘Narcotic Control Bureau'(hereinafter referred to as ‘the NCB’), thereby totally disregarding the mandatory procedure contemplated under Section 37(1)(b). Similarly, A1 to A4  were granted bail by the Additional Sessions Court-VII, Ernakulam, allegedly, without giving an opportunity of being heard to the Special Public Prosecutor for NCB, thereby totally disregarding the mandatory procedure under Section 37(1).

The Additional Sessions Court-VIII, Ernakulam granted bail to the 3rd accused. It is by challenging the said order, the NCB has approached this Court under Section 439(2) Cr.P.C. read with Section 482 Cr.P.C. The 2nd Additional Sessions Court, granted bail to the 3rd accused. The NCB has approached this court challenging the said order under Section 439(2) Cr.P.C. read with Section 482 Cr.P.C.  

According to the NCB, A1 and A3 in Sessions were granted bail by the court below, without giving an opportunity of being heard to the Special Prosecutor of the NCB and even without serving copies on the NCB. Courts have granted bail to the 3rd accused in, and to the 3rd accused in Sessions, after hearing both sides. Dissatisfied with the said orders, the Intelligence Officer, NCB has come up with CRL.M.C. 6222/15 & con. cases through Crl.M.C.No.6222/15 and Crl.M.C.No.4917/2015 under Section 439(2) read with Section 482 Cr.P.C.

Heard Sri. MVS Nampoothiry, learned Special Public Prosecutor for NCB, and learned counsel Sri. K.N. Chandrababu, Sri.T.K. Kunhabdulla and Sri.P.A. Martin Roy.

ISSUES

1) Whether the powers, which can be exercised by the Sessions Court under Section 439(2) Cr.P.C. and the powers which can be exercised by the High Court under Section 439(2) Cr.P.C., are the same?

2) Whether, under the guise of powers under Section 439(2) Cr.P.C., the Sessions Court, or under Section 437(5) Cr.P.C., a court of a Magistrate, can review its orders granting bail?

3) Can the grounds for inviting the intervention of Sessions Court and the High Court under Section 439(2) Cr.P.C. be the same, as those available to challenge the validity of an order granting bail?

4) What are the matters to be considered for enlarging an accused on bail under Section 37(1)(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985(hereinafter referred to as the ‘NDPS Act‘)?

ARGUMENTS 

The learned counsel for the petitioners in Crl.M.C.No.5095/2015 has argued that the NCB ought not to have approached the court below under Section 439(2) Cr.P.C to get the bail granted to those petitioners cancelled. According to the learned counsel for the petitioners, the matters to be considered for challenging an order granting bail are on a different footing than the matters to be considered while dealing with an application under Section 439(2) Cr.P.C. The argument is that only on the occurrence of some supervening circumstances or violations of bail conditions after the passing of the order enlarging the accused on bail, the provisions under Section 439(2) Cr.P.C can be invoked. Same is the argument taken up by the CRL.M.C. 6222/15 & con. cases respondent in Crl.M.C.No.5210/2015 also.

The learned Special Prosecutor for the NCB has argued that when there is total violation of the statutory provisions in passing an order enlarging the accused on bail, there is nothing wrong in invoking the provisions under Section 439(2) Cr.P.C for getting the bail cancelled. It is argued that, when the court below has given a go-by to the mandatory provisions contained in Section 37(1)(b) of the NDPS Act, the NCB can have recourse to the provisions under Section 439(2) Cr.P.C to get the bail cancelled.

The learned counsel for the respondent in Crl.M.C.No.4917/2015 has argued that there is no reason for the NCB to challenge Annexure-A3 order which was passed on merits after hearing both sides. It is further argued that matters like the possibility of the commission of other offences while on bail, a probable chance to abscond etc. are matters alien for consideration at the time of enlarging an accused on bail; if not, that will result in a CRL.M.C. 6222/15 & con. cases situation wherein the court is inviting grounds for passing an order of preventive detention. In short, the learned counsel for the respondent is supporting the order passed by the court below.

JUDGEMENT

It was held that in a case wherein the order enlarging the accused on bail in a non bailable offence suffers from any statutory bar, or it manifests impropriety as for example; failure to hear the Public Prosecutor, the power to order the said accused be arrested and committed to custody shall be exercised by the `Superior Court’, under Section 439(2) Cr.P.C. Of course, such an order passed by such `Superior Court’ shall have the effect of the cancellation of bail. Further, in such case, while considering the matter under Section 439(2) Cr.P.C., the ‘Superior Court’ can also consider the question whether irrelevant materials were taken into account by the court for granting bail. Therefore, it is evident that when the order suffers from any statutory bar, or impropriety, as noted above, or in cases wherein relevant materials were not considered and irrelevant materials were taken into account, the Superior Court can pass such an order, which has the effect of cancellation of bail.

Factors to be considered at the time of granting bail are totally different from the matters to be considered while cancelling a bail already granted. Supervening circumstances, the violation of statutory provisions, non- consideration of relevant materials, consideration of irrelevant materials in granting bail and violations of bail conditions are matters that can be considered for ordering the arrest of the concerned accused, and for his committing to custody under Section 439(2) Cr.P.C. In such cases, on all the aforesaid grounds, except the ground of violation of bail conditions, the Superior Court alone has the power to pass an order, which has the effect of cancellation of bail. 

In cases wherein, there is violation of bail conditions, even the court of the Magistrate has the power to order arrest of the accused and his/her committing to custody under Section 437(5) Cr.P.C., in cases wherein bail was granted under Section 437(1) or 437(2) Cr.P.C. If bail is granted under Section 436 Cr.P.C. in bailable offences, the courts of the Magistrates have no such power under Section 437(5) Cr.P.C.; whereas even in such case, the Sessions Court or the High Court can exercise such power under Section 439(2) Cr.P.C. When violation of bail conditions are there, the court which passes the order, has the power to cancel the bail by invoking the provisions under Section 446A Cr.P.C. read with Section 437(5) as well as 439 (2) Cr.P.C. When there is violation of bail conditions, the prosecution or the aggrieved need not rush to the Superior Courts; whereas they can approach the very same court under Section 437(5) Cr.P.C. as well as under Section 439 (2) Cr.P.C. for getting the accused arrested. True that, the arrest of the accused and his/her committing to custody as contained in Sections 437(5) Cr.P.C. and 439(2) Cr.P.C. has the effect of cancellation of bail.

As this Court has already found, in cases covered by Section 37(1)(b) of the NDPS Act, 1985, the court has a duty to hear the Public Prosecutor concerned. The Public Prosecutor shall be given an opportunity to oppose the application seeking the enlargement of the accused on bail. 

REFERENCES

https://indiankanoon.org

https://ww.scconline.com

This Article is written by Chandrawati Chouhan of Rajasthan School of Law for Women, Jaipur , Intern at Legal Vidhiya.

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