ASHRAF Vs. STATE OF KERALA

JUDGEMENT

(1.) In this petition filed under Section 438 Cr.P.C, the petitioner, who is the sole accused in Crime No. 5 7 of 2009 of Elathur Police Station for offences punishable under Sections 341, 323, 354 & 452 I.P.C., seeks anticipatory bail.

(2.) This application for pre-arrest bail has been filed on the assumption that all the aforementioned offences except the offence punishable under Section 354 IPC are bailable offences and that by virtue of the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005) the offence punishable under Section 354 IPC is now non-bailable.

(3.) Both the assumption made by the petitioner are erroneous. The offence punishable under Section 452 IPC is non-bailable, justifying the invocation of Section 438 Cr.P.C. The offence punishable under Section 354 IPC continues to be bailable notwithstanding the amendment of Cr.P.C. No doubt., going by Section 42(f)(viii) of the Code of Criminal Procedure (Amendment) Act of 2005, (Act 25 of 2005), it would appear as though there is an amendment to Section 354 IPC, so far as the 1st Schedule to Cr.P.C. is concerned. But the said amendment incorporated as per Section 42(f)(viii) of the Amending Act of 2005 is only to the effect that the word "ditto" occurring in Column 4 of the table in the 1st Schedule to Cr.P.C is replaced by the word "bailable".; Clauses (vii) and (viii) of Section 42(f) of the Amending Act read as follows: