A JAYARAJ Vs. STATE OF KERALA

JUDGEMENT

(1.) Short question arising for a decision is whether a subordinate Criminal Court could entertain a petition for bail by a person accused of a non bailable offence otherwise than under sub clause (a) of the proviso to S.167(2) of the Code of Criminal Procedure (for short, 'the Code') after a superior Court declined to grant bail to such accused on merit.

(2.) For alleged misappropriation of about Rs.50,00,000/- while working as accounts officer of the complainant, a company, petitioner was arrested by police in the course of investigation of crime No. 92 of 2009 of Binanipuram Police Station. He preferred a petition before learned Magistrate for bail. That petition was dismissed. Petitioner approached learned Sessions Judge requesting to invoke power under S.439 of the Code. Learned Sessions Judge as per Annexure C, order dated 24/02/09 refused to grant bail observing that allegations against petitioner are serious, investigation is at the initial stage and that enormity of crime committed by petitioner is to be looked into. Learned Sessions Judge was satisfied after hearing counsel for petitioner and learned public prosecutor and perusing relevant records that prima facie case is made out against petitioner, observed that:

(3.) Learned counsel for petitioner contented that there is no suppression of material fact in that counsel who had preferred the petition for bail on behalf of the petitioner before the learned Magistrate was not informed about dismissal of the bail petition by learned Sessions Judge. It is contended by learned counsel that petitioner had no mala fide intention to cover up the order of learned Sessions Judge refusing to grant bail as is clear from the fact that when learned Magistrate refused to lift the conditions, petitioner moved learned Sessions Judge with the very same request concerning the order of learned Magistrate granting bail. The further argument is that even in the affidavit of investigating officer supporting Crl. MP No. 1831 of 2009 there is no allegation, even after expiry of three months after learned Magistrate granted bail that petitioner ever attempted to violate any of the conditions of bail or to influence the witnesses. Learned counsel pointed out that the order granting bail by learned Magistrate remained in force at least for about three months, it was not challenged by the investigating officer and hence learned Sessions Judge was not correct in cancelling bail at least in the said circumstances. Learned counsel has placed reliance on the decision of the Supreme Court in Mohan Singh v. Union Territory, AIR 1978 SC 1095 : 1978 CriLJ 844 : 1978 SCC (Cri) 190 : 1978 (2) SCC 366 : 1978 Cri LR (SC) 296. Reliance is also placed on the decision of the Karnataka High Court in State of Karnataka v. Narayanappa, 1992 CriLJ 225 . Learned public prosecutor would contend that learned Magistrate has granted bail overlooking the finding of learned Sessions Judge that a prima facie case is made out and hence request for bail cannot be allowed. Reference is made to the observations made by learned Sessions Judge in Annexure C, order dated 24/02/2009.