Accused on pre arrest bail cannot be remanded to judicial custody. The pre-arrest bail once granted, shall remain in force unless the same is cancelled by the court which granted it or by a higher court, said the Court.
The High Court of Kerala,in Nahif [email protected] v Station House Officer, Ambalavayal Police Station,Wayanad ,has ruled that an accused who had been granted pre arrest bail, cannot be remanded to judicial custody. The court further held that the bail thus obtained,shall remain in force unless the same is cancelled by the court which granted it or by a higher court.
The petitioner in the instant case was granted bail by the High Court on 09/12/2105 with a direction to surrender within a specified period of ten days. Subsequently an application was made, for making certain minor corrections in the order. While the said application was pending,petitioner was arrested on 19/01/2016. Even though the petitioner produced the certified copy of the order granting pre arrest bail by High Court, disregarding the same, the magistrate dismissed his bail application and remanded him to judicial custody on 23/01/2016.On 25/01/2016, when an application seeking extension of time to surrender was brought before the High Court, the above factual circumstances were appraised before it, the court thereupon ordered the release of petitioner forthwith.
The court thereafter sought explanation from the learned magistrate in this regard.The court rejecting the first explanation which the magistrate sought to justify herself , again sought an explanation as to why the above order was passed disregarding various binding judicial precedents as well as order of pre arrest bail granted by this court on 09/12/2015.The magistrate thereafter submitted an explanation admitting mistake on her part and tendering unconditional apology.
The court speaking through Justice B.Sudheendra Kumar held:-“Once the pre-arrest bail is granted, the same will be in force unless it is canceled by the court granting the same or by the higher court. When pre-arrest bail is granted by the court, the same can be cancelled only by the court granting the order or by the higher court either at the instance of the public prosecutor or the complainant on finding new material or circumstances at any point of time. The pre-arrest bail granted by this court was not cancelled by this court and hence, the same was in force when the petitioner was remanded by the learned magistrate. Therefore, the learned Magistrate should not have remanded the petitioner to judicial custody, when the learned Magistrate was informed of the relief granted by this Court in favour of the petitioner under Section 438 of the Code.”
Deprecating the conduct of magistrate who considered the matter, the court observed:-“When the learned Magistrate was informed of the relief granted by this Court in favour of the petitioner under Section 438 of the Code. It was noticed by this court from the explanation submitted by the learned magistrate that the learned Magistrate had taken up the matter lightly and casually, without considering the seriousness of the issue involved in the case. It is clear that there was failure on the part of the learned magistrate in this regard.”
The court further added :-“the learned magistrate did not even express any regret in the first explanation submitted by her. The humility must be the hallmark of a Judicial Officer. The judicial discipline is necessary for the existence of the judicial system. If judicial officers commit mistakes, the same will undermine the esteem of the judiciary. The judicial officers must be conscious about the importance of personal liberty vis-a-vis social interests. Therefore, the judicial officers must be careful and diligent while discharging their duties.”
The court however accepted the apology tendered by the magistrate and hence refrained from making any adverse actions thereto.