AZEEZ Vs. STATE OF KERALA

JUDGEMENT

(1.) Originally there were seven accused in the case and five among the accused who were available before court were tried and acquitted and the case was split up and refiled against the other two accused and the case entered in the long pending register. It appears subsequently the present petitioner surrendered in court on 2-11-1983 and sought bail and bail was granted under S.436 of the Code of Criminal Procedure. The petitioner is at present employed abroad and holds a passport. In granting bail, the learned Magistrate directed him to surrender the passport to court and for this purpose time was granted to him. Apparently he left the country during the time granted to him for producing the passport and filed Crl. M. C No. 754 of 1983 to set aside the direction to surrender the passport and also to quash the entire proceedings. In Paulose v. State, 1978 KLT 337 this Court held that in regard to a bailable offence under S.436 of the Code the Magistrate is not competent to impose the condition to the effect that the accused should appear before the police. This court followed the decisions in Jayantila Purushottamdas v. State of Gujarat, 1966 CriLJ 209 , re. Kota, Appalakonda, AIR 1942 Mad. 740 , In re The District Magistrate of Vizagapatam, AIR 1949 Mad. 77 , In re Saradamma, AIR 1965 AP 444 and Radha v. State, 1955 (2) MLJ 471 .

(2.) S.496 of the Cr.P.C. 1898, which is similar to S.436 of the present Code came up for consideration before the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam Mandkar and another, AIR 1958 SC 376 . In Para.3 of the judgment of that reported decision Gajendragadkar, J., speaking for the court observed as follows:

(3.) The petitioner, being a person accused of only bailable offence, has a right to be enlarged on bail. There is no discretion with the Court enabling it to grant or refuse bail. The Court is required to grant bail in such a case, though the court is at liberty to modulate the terms as to bail. This certainly does not mean that the court can impose a condition which is not a term as to bail. The condition that a person accused of bailable offence has to surrender his passport in court is not a term as to bail and therefore cannot be imposed by a magistrate under S.436 of the Code. The condition imposed is illegal and has to be set aside.