Chandran Vs. State of Kerala

Chandran vs State of Kerala

Type Court Judgment Court Kerala Decided Oct 13, 2006

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Citation: sooperkanoon.com/728663
Court: Kerala High Court
Judge: J.M. James, J.
Decided On: Oct 13, 2006
Case Number: B.A. No. 6129 of 2006
Subject: Criminal

Case Summary

AI-generated summary - not the official court judgment text.

- CODE OF CIVIL PROCEDURE, 1908.[C.A. No. 5/1908]. Section 100-A [As substituted by C.P.C. Amendment Act, 2002]: [V.K. Bali, CJ, Kurian Joseph & K. Balakrishnan Nair, JJ] Applicability Held, Section is not retrospective. All appeals filed prior to 1.7.2002 are competent. But subsequent to 1.7.2002 intro Court appe...

Key legal issue: Criminal
Acts & sections: Code of Criminal Procedure (CrPC) (Amendment) Act, 2005 - Sections 16, 25, 28, 38, 42 and 44; Indian Penal Code (IPC), 1860 - Sections 34, 42, 341, 323 and 324; Code of Criminal Procedure (CrPC) ,...

Parties & Advocates

Appellant / Petitioner

Chandran

Advocate K.S. Madhusoodanan and; T.V. Jayakumar Namboodiri, Advs.

Respondent

State of Kerala

Advocate Jai George, Public Prosectuor

Legal References

Acts: Code of Criminal Procedure (CrPC) (Amendment) Act, 2005 - Sections 16, 25, 28, 38, 42 and 44; Indian Penal Code (IPC), 1860 - Sections 34, 42, 341, 323 and 324; Code of Criminal Procedure (CrPC) , 1973 - Sections 438
Reported In: 2006(4)KLT550

Excerpt

- code of civil procedure, 1908.[c.a. no. 5/1908]. section 100-a [as substituted by c.p.c. amendment act, 2002]: [v.k. bali, cj, kurian joseph & k. balakrishnan nair, jj] applicability held, section is not retrospective. all appeals filed prior to 1.7.2002 are competent. but subsequent to 1.7.2002 intro court appeals against judgment of single judge is not maintainable. provisions of section 100-a, c.p.c., will prevail over the provisions contained in the kerala high court act, 1959. .....the provisions of act 25 of 2005 would come into effect the provisions of sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b), 42(f)(iii) and (iv) and 44(a) have been excluded.3. under section 42(f)(iii) against section 324 ipc, in fifth column of first schedule of cr.p.c. the word 'bailable' is deleted and 'non bailable' is included however, because of the non implementation of section 42(f)(iii) of the code of criminal procedure (amendment) act, 2005, the offence under section 324 ipc still continues to remain as bailable.4. the learned counsel mr. k.s. madhusoodanan submits that there is a doubt in this regard at least in some courts. therefore, section 324 is considered as non bailable and bail is being refused. the counsel cites the dismissal of the application, under section 438 cr.p.c. crl.m.c.no. 1425/2006 dated 27.9.2006, by the sessions court. thalassery, as an example.5. in the above facts situation, i direct the petitioners to appear before the lower court and the learned magistrate shall allow them to be on bail, on the application(s) that may be filed by them.6. in order to avoid further difficulties that may arise in the dispensation of justice, in similar matters, communicate this order to all the magistrate courts, so that the doubts, if any, could be cleared.the application is disposed of as above.

Full Judgment

ORDER

J.M. James, J.

1. The petitioners are accused 1 to 3, in crime No.74/2006 of Kolavalloor Police Station, for the offence punishable under Ss.341, 323 and 324 IPC read with Section 34 IPC.

2. The learned Counsel submits that the Sessions Court, Thalassery, had dismissed the prayer for an order, under Section 438 Cr.P.C. on the ground that the investigation is not over. The offence under Sections 341, 323 and 324 IPC are bailable. Though the Code of Criminal Procedure (Amendment) Act 2005, Act 25 of 2005, had been implemented from the appointed date, 23.6.2006, all the provisions contained thereunder, had not been brought into force. The Gazette of India Extraordinary dated 21.6.2006 contains S.O.No. 923(E), notifying that though 23.6.2006 is appointed as the date on which the provisions of Act 25 of 2005 would come into effect the provisions of Sections 16, 25, 28(a), 28(b), 38, 42(a), 42(b), 42(f)(iii) and (iv) and 44(a) have been excluded.

3. Under Section 42(f)(iii) against Section 324 IPC, in fifth column of First Schedule of Cr.P.C. the word 'bailable' is deleted and 'non bailable' is included However, because of the non implementation of Section 42(f)(iii) of the Code of Criminal Procedure (Amendment) Act, 2005, the offence under Section 324 IPC still continues to remain as bailable.

4. The learned Counsel Mr. K.S. Madhusoodanan submits that there is a doubt in this regard at least in some Courts. Therefore, Section 324 is considered as non bailable and bail is being refused. The counsel cites the dismissal of the application, under Section 438 Cr.P.C. Crl.M.C.No. 1425/2006 dated 27.9.2006, by the Sessions Court. Thalassery, as an example.

5. In the above facts situation, I direct the petitioners to appear before the Lower Court and the learned Magistrate shall allow them to be on bail, on the application(s) that may be filed by them.

6. In order to avoid further difficulties that may arise in the dispensation of justice, in similar matters, communicate this order to all the Magistrate Courts, so that the doubts, if any, could be cleared.

The application is disposed of as above.

Same Court & Year Kerala · 2006 Same Parties Chandran vs State of Kerala Same Subject Criminal Same Judge J.M. James, J. Acts & Sections Code of Criminal Procedure (CrPC) (Amendment) Act, 2005 - Sec...

Criminal