Parameswaran v. The Inspector of Police,N-1 Royapuram Police Staion,Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 02.08.2012CORAMTHE HONOURABLE MR. JUSTICE S.NAGAMUTHUCrl.O.P.No.18533 of 2012Parameswaran... Petitioner/ Accused 2Vs.The Inspector of Police,N-1 Royapuram Police Staion,Chennai. ... Respondent/ ComplainantPetition filed under Section 483 of the Code of CriminalProcedure praying to invoke the power of superintendence and setasid ethe order dated 30.07.2012 passed by the learned XVIMetropolitan Magistrate, George Town,Chennai in Crl.M.P.No.3129 of2012 and consequently, grant bail to the petitioner in the case inCrime No.841 of 2012 pending on the file of the respondent police.For petitioner: Mr.N.R.Elango, Senior Counsel for Mr.L.Murali KrishnanFor respondent (s): Mr.M.Maharaja, Addl. Public ProsecutorORDERThe petitioner is the 2nd Accused in Crime No.841 of 2012 on thefile of the respondent police. Initially, the said case wasregistered under Section 174 of Cr.P.C. During the course ofinvestigation, it was altered into one under Sections 304(1) and 304(A) of IPC. The petitioner was arrested by the respondent on27.07.2012 and produced before the learned XVI MetropolitanMagistrate, George Town, Chennai, with a request for remanding himto judicial custody. In the request for remand itself, therespondent submitted to the court that the petitioner had beenarrested only on the allegations that he had committed offencepunishable under Section 304(A) of IPC. The petitioner, immediatelyafter remand, filed a petition in M.P.No.3129 of 2012 seeking bail.The learned Magistrate ordered notice to the respondent. Therespondent submitted a response before the learned JudicialMagistrate, in which, the respondent submitted that the petitioneris accused of an offence only under Section 304(A) of IPC and,therefore, the respondent had no objection for the grant of bail tothe petitioner. It was argued before the learned MetropolitanMagistrate by the learned counsel for the petitioner that the https://hcservices.ecourts.gov.in/hcservices/ offence under Section 304(A) of IPC, for which the petitioner hasbeen accused of and arrested, is bailable. It was also contendedthat since the offence is bailable, it is his right to come out onbail and the court has no discretion.2. But, the learned Metropolitan Magistrate by order dated30.07.2012 dismissed the said petition on the ground that offenceunder Section 304(i) of IPC has also been mentioned in thealteration report and the said offence is triable exclusively by aCourt of Sessions.3. According to the petitioner, thereafter, he filed anapplication for bail before the learned Principal Sessions Judge,Chennai, in Crl.M.p.No.7596 of 2012. That petition came up forhearing before the learned II Additional Sessions Judge, Chennaibecause the learned learned Principal Sessions Judge was not sittingon 01.08.2012. When the matter was taken up for hearing before theII Additional Sessions Judge on 02.08.2012, an Advocate by nameMr.R.C.Manoharan filed a petition seeking to intervene in the matterand opposed the grant of bail and the learned Additional SessionsJudge without passing any order has simply adjourned the matter to03.08.2012. In those circumstances, the petitioner has rushed tothis court with this original petition under Section 483 of Cr.P.C. 4. On representation made by Mr.N.R.Elango, the learned seniorcounsel before this court, the matter has been listed by way oflunch motion. When this matter was taken up at 2.15 p.m., thelearned Additional Public Prosecutor wanted a pass-over of thematter to get instructions from the respondent police. Accordingly,the matter was taken up at 4.00 p.m. and the learned AdditionalPublic Prosecutor has got instructions from the respondent by thetime. He has also produced the case diary for the inspection of thecourt. [After inspection it was returned to the learned AdditionalPublic Prosecutor in the open court itself]. 5. I have heard Mr.N.R.Elango, the learned senior counsel forthe petitioner and Mr.M.Maharaja, learned Additional PublicProsecutor for the respondent and also perused the recordscarefully.6. The facts of the case would be as follows:- In Chennai ,there is a school known as "K.C.Sankaralinga Nadar Higher SecondarySchool". The deceased aged 13 years was studying VIII Standard inthe said school. The 1st Accused in this case is one Karthik, aged 13years and admittedly, a juvenile and studying VIII standard in thesame school. For the students of VIII standard, the period between2.00 and 2.40 p.m. was the play time [Physical Educational TrainingClass]. The students were in the ground playing various gamesaccording to their wish. The petitioner was a Physical EducationTeacher in-charge of the said class. According to the prosecution,he was not available in the ground during the relevant point of https://hcservices.ecourts.gov.in/hcservices/ time. When the students were playing , there was quarrel betweenthe deceased - Ganesh Kumar and the juvenile accused – Karthik. Thedeceased fisted juvenile accused twice or thrice with hands. TheJuvenile accused retarded and he in turn fisted the deceased on hischest and other parts of the body. The deceased fell down.Thereafter, he was taken to the hospital where he was declared dead.Based on the above incident, the present case was registeredinitially under Section 174 of Cr.P.C.7. During the course of investigation, it came to light thatthe death was due to the physical assault made by the juvenileaccused. It also came to light that the petitioner who was supposedto monitor the students playing in the play ground was not availableand the said act of the petitioner amounts to an offence punishableunder Section 304(A) of IPC. Accordingly, an alteration report wassubmitted before the XVI Metropolitan Magistrate alleging that thejuvenile accused had committed an offence punishable under Section304(i) of IPC and the petitioner has committed an offence punishableunder Section 304(A) of IPC.8. The petitioner was arrested on 27.07.2012 and producedbefore the learned XVI Metropolitan Magistrate on the same day forremand and his bail application was dismissed as I have mentioned atthe beginning of this order. 9. In this petition, it is submitted that the order of thelearned Metropolitan Magistrate is wholly without jurisdiction,illegal and not sustainable in law. The learned senior counselappearing for the petitioner would submit that the order of thelearned Magistrate is a serious infringement of the right to lifeguaranteed under Article 21 of the Constitution of India and thesame is also a serious human rights violation. 10. The learned senior counsel would further submit that theright to bail in a bailable offence is an absolute right and thelearned Magistrate has got no power to deny bail. In this regard,the learned senior counsel for the petitioner would bring to mynotice the judgement of the Hon'ble Supreme Court in Rasikalal v.Kishore, (2009) 4 Supreme Court Cases 446 wherein the Hon'le SupremeCourt in para 9 has held as follows:-"9. .......... There is no doubt that underSection 436 of the Code of Criminal Procedure aperson accused of a bailable offence is entitledto be released on bail pending his trial. As soonas it appears that the accused person is preparedto give bail, the police officer or the courtbefore whom he offers to give bail, is bound torelease him on such terms as to bail as may appearto the officer or the court to be reasonable. Itwould even be open to the officer or the court todischarge such person on his executing a bond as https://hcservices.ecourts.gov.in/hcservices/ provided in the Section instead of taking bailfrom him. 11. In para 10 of the aforesaid judgement , the Hon'ble SupremeCourt has held as follows:- "The position of persons accused of non-bailable offence is entirely different. The rightto claim bail granted by Section 436 of the Codein a bailable offence is an absolute andindefeasible right. In bailable offences there isno question of discretion in granting bail as thewords of Section 436 are imperative. The onlychoice available to the officer or the court is asbetween taking a simple recognizance of theaccused and demanding security with surety. Thepersons contemplated by Section 436 cannot betaken into custody unless they are unable orwilling (sic unwilling) to offer bail or toexecute personal bonds. There is no manner ofdoubt that bail in a bailable offence can beclaimed by accused as of right and the officer orthe court, as the case may be, is bound to releasethe accused on bail if he is willing to abide byreasonable conditions which may be imposed onhim."12. In my considered opinion too, the right to bail in abailable offence is an absolute and indefeasible right of theaccused. Neither the Magistrate nor the police office who hasarrested the accused has any power to deny bail provided the accusedis prepared to execute bond and also to produce sureties. The rightto life is a very precious fundamental right guaranteed underArticle 21 of the Constitution of India. Such right can berestricted only by following the procedure established by law. Theprocedure contemplated is found in Section 436 of Cr.P.C. As hasbeen laid down by the Hon'ble Supreme Court, under Section 436 ofCr.P.C. it is mandatory for a Magistrate to grant bail and he hasgot no power to deny bail at all. The denial of bail in a bailableoffence is, thus, a serious infringement of the fundamental rightguaranteed under the Constitution. Such an order denying bail isundoubtedly without jurisdiction and illegal. Therefore, such ordercannot be allowed to sustain. 13. In the case on hand, the learned Magistrate was of the viewthat since Section 304(i) of IPC has also been included in thealteration report, the accused is not entitled for bail. Thisapproach of the learned Magistrate is totally erroneous. Even inthe request made by the police to remand, it was made very clear https://hcservices.ecourts.gov.in/hcservices/ that the petitioner herein has committed offence punishable onlyunder Section 304(A) and he has got nothing to do with the offenceunder Section 304(i) of IPC. Before the Magistrate in the responsefiled by the police also, it was made clear that the offence said tohave been committed by the petitioner is purely bailable and therespondent has no objection for grant of bail. Despite that, I amunable to understand as to why the Magistrate was not convinced togrant bail in this matter.14. The learned senior counsel for the petitioner has fairlybrought to the notice of this Court that after dismissal of the bailapplication by the Magistrate , the petitioner has moved the learnedPrincipal Sessions Judge for bail. But, unfortunately, the learnedAdditional Sessions Judge who heard the matter has simply adjournedthe matter on two occasions, as a result, the petitioner who isentitled for bail has been in incarceration from 27.07.2012 onwards.Such continued detention is illegal and , therefore, such illegalitycannot be allowed to continue for any more.15. The learned senior counsel would submit that when the orderpassed by the learned Magistrate is illegal and the learnedAdditional Sessions Judge has not discharged his judicial functionas expected of in law, it is for this Court to invoke its power ofsuperintendence over courts of judicial magistrate under Section 483of Cr.P.C. and the inherent power under Section 482 of Cr.P.C.. Iam in full agreement with the above argument advanced by the learnedsenior counsel for the petitioner. After all the Code of CriminalProcedure is only a procedural law and it is not a substantive law;whereas the right of an accused to come out on bail is not only astatutory right under Section 436 of Cr.P.C. but also aconstitutional right inbuilt in Article 21 of the Constitution.When such a right is very seriously infringed, I am of the view thatthis court has to necessarily invoke its inherent jurisdiction underSection 482 of Cr.P.C. as well as the power of superintendence overthe court of magistrate under Section 483 of Cr.P.C. to set asidethe said illegal order of the learned Metropolitan Magistrate.16. The learned senior counsel would nextly contend that it waswrong on the part of the II Additional Sessions Judge, to havepermitted a total stranger to oppose the bail application when itwas taken on 02.08.2012. In my considered opinion, in a case ofbailable offence, no one has got any right to oppose bail includingthe police and the de facto complainant. The learned senior counselhas produced the affidavit filed by the Advocate Mr.R.C.Manoharanbefore the learned Sessions Judge. In the said affidavit he has notstated anything as to how he has got locus standi in the matter.Assuming that he is an interested party and he has got locus standi,he has got no right to oppose the bail because the bail in bailableoffence is an absolute right of the accused. https://hcservices.ecourts.gov.in/hcservices/

17. In view of all the above, I am inclined to set aside theorder of the learned Metropolitan Magistrate and this petition mustsucceed.18. In the result, the criminal original petition is allowed;the order dated 30.07.2012 made in Crl.M.P.No.3129 of 2012 by thelearned XVI Metropolitan Magistrate , George Town, Chennai is herebyset aside; and the matter is remitted back to the learned XVIMetropolitan Magistrate , who shall dispose of the same asindicated above forthwith. It is further directed that in view ofthis order, the bail application filed by the petitioner inCrl.M.P.No.7595 of 2012 before the learned Principal Sessions Judge,Chennai, shall be withdrawn by the petitioner as undertaken by thelearned Senior Counsel for the petitioner before this Court. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.kmkTo1. The Principal Sessions Judge,Chennai2.The XVI Metropolitan Magistrate, George Town, Chennai.3.The Inspector of Police, N-1 Royapuram Police Staion, Chennai.4. The Public Prosecutor,High Court, Madras1 cc to Mr.L. Muralikrishnan, Sr. 46503Crl.O.P.No.18533 of 2012MSM (CO)kk 2/8