Kerala High Court: Upbraiding the Judicial Magistrate who had remanded the petitioner to judicial custody contrary to its orders, in spite of having been granted pre-arrest bail under Section 438 of the Criminal Procedure Code, the Bench of Sudheendra Kumar, J. held that once a pre-arrest bail was granted, the same would be in force until either the court or a higher court cancelled the order, on the instance of the Public Prosecutor, on the discovery of new material or circumstances, or of abuse of the indulgence by the accused.
The facts disclosed that the petitioner was arrested on 19.01.2016, and upon being produced the next day before the Judicial Magistrate, he produced the order under Section 438 passed by this Bench of the High Court. This was however disregarded by the Magistrate remanding the petitioner to judicial custody. The Court, upon being appraised of the remand of the petitioner and dismissal of his bail application, sought reasons from the Magistrate which were furnished albeit inadequate in the eyes of the Court. Further remonstrance from this Court led to an apology from the Magistrate.
The Court observed that 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-à-vis social interests and must be careful and diligent while discharging their duties.
The Court cited Jose George v. State of Kerala, 2006 (2) KLT 188, whereby it was held that grant of pre-arrest bail made it clear that the subject was not to be remanded to judicial custody; Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, which held that the ordinary rule would be to not limit the operation of order under Section 438 CrPC, and allow its continuance to trial, and also that it was for the High Court or Court of Session to apply its mind in petitions for anticipatory bail under Section 438, not for the Judicial Magistrate under Section 43; and Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 whereby it was held the interim protection of anticipatory bail must be available till the end of trial unless it is cancelled by the court finding new material, circumstances, or on ‘ground of abuse of indulgence by the accused’. In deficit of any such circumstance, the bail application was allowed. [Nahif Ali v. Station House Officer, 2016 SCC OnLine Ker 5339, decided on March 1, 2016]