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Whether magistrate can remand accused in judicial custody wh

Whether magistrate can remand accused in judicial custody who is granted anticipatory bail by high court?

 
 A learned Single Judge of this Court in Jose George v. State of Kerala [MANU/KE/0082/2006 : 2006 (2) KLT 188] held thus:

"When this Court grants the relief of pre-arrest bail, though there is no specific direction to the Magistrate, the message is clear that this court is of the view that the person to whom the relief of pre-arrest bail is granted is not to be remanded to judicial custody."

The Constitution Bench of the Hon'ble Apex Court in Shri. Gurbaksh Singh Sibbia and Others v. State of Punjab (MANU/SC/0215/1980 : 1980 (2) SCC 565) held that the normal rule should be not to limit the operation of the order under section 438 Cr.P.C. in relation to a period of time and the bail granted by the Court should ordinarily be continued till the trial of the case. The Apex court in Sibbia's case (supra) further held in paragraph 36 thus:--

"Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session, it must apply its own mind to the question and decide whether a case has been made out for granting such relief. It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the code, as and when an occasion arises. Such a course will defeat the very object of Section 438."

The Apex Court in Siddharam Satlingappa Mhetre v. State of Maharashtra and others (MANU/SC/1021/2010 : AIR 2011 SC 312) held that the court which grants the bail also has the power to cancel it and the discretion to cancel the bail can be exercised either at the instance of the public prosecutor or the complainant on finding new material or circumstances at any point of time. It was further held in Siddharam (supra) that the order granting anticipatory bail for a limited duration and thereafter directing the accused to surrender and apply for regular bail is contrary to the legislative intention and the judgment of the Constitution Bench in Sibbia's case (supra). The Apex court in Siddharam (supra) further held in paragraph 117 thus:--

"The view expressed by this Court in all the above-referred judgments have to be reviewed and once the anticipatory bail is granted, then the protection should ordinarily be available till the end of the trial unless the interim protection by way of the grant of anticipatory bail is curtailed when the anticipatory bail granted by the court is cancelled by the court on finding fresh material or circumstances or on the ground of abuse of the indulgence by the accused."

 The Apex Court in Bhadresh Bipinbhai Sheth v. State of Gujarat and another [MANU/SC/0949/2015 : 2016 (1) SCC 152] quoted with approval the ratio laid down by the Apex Court in Siddharam (supra).
 It is clear from the above decisions that 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.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl. No. 688 of 2016
Decided On: 01.03.2016
Appellants: Nahif Ali 
Vs.
Respondent: The Station House Officer, Ambalavayal Police Station
Hon'ble Judges/Coram:Bhaskaran Pillai Sudheendra Kumar, J.
 


 1 Replies

Siddharth Dev (Advocate)     21 July 2016

yes but for that your lawyer have to make great efforts to convince judge/ magistrate.


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