Section 232 BNSS Doesn’t Prohibit Consideration Of Bail Applications By Committal Courts: Kerala High Court

The Petition before the High Court was filed by the sole accused in a case registered at the Excise Range Office, Kattakkada, for the offence punishable under Section 55(i) of the Abkari Act 1 of 1077.

The Single Bench of Justice V.G.Arun held, “The courts should therefore interpret Section 232 and its proviso in such manner as to give effect to the statute as a whole. Thus understood, the second proviso to Section 232, does not prohibit consideration of bail applications by the committal courts. Being so, the apprehension of the petitioner that the Magistrate will not consider his bail application is misplaced."

Advocate M.R.Sasith represented the Petitioner while Senior Public Prosecutor M.C. Ashi represented the Respondent.

Factual Background

The case came to be registered upon the premise that the excise party found the petitioner selling Indian Made Foreign Liquor (IMFL) at his rented house and recovered 1 litre of IMFL from his possession. At the investigation stage, the petitioner moved applications seeking pre-arrest bail before the Sessions Court as well as the High Court, but the same were dismissed. The Petitioner thus approached the High Court by filing a Petition seeking an opportunity to surrender before the trial court and for a direction to consider his bail application on the day of surrender itself.

Reasoning

The Bench asserted, “The right to seek bail, though not a fundamental right, is a statutory right supported by the broader concept of personal liberty under Article 21 of the Constitution of India. In the words of Justice Krishna Iyer; ”the issue of bail is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process.”

Referring to the judgment in Satendar Kumar Antil v. Central Bureau of Investigation and Another (2022), the Bench held that discretion is vested with the committal court under Section 209(a) and (b) of the Code to grant bail or to remand the accused.

Section 232 deals with the commitment of case to Court of Session when offence is triable exclusively by it. The first proviso to Section 232 requires the committal court to complete the proceedings within 90 days of taking cognisance, which period can be extended by the Magistrate upto a maximum of 180 days. The second proviso casts a duty on the Magistrate to forward the applications filed by the accused or the victim to the Court of Session while committing the case.

The Bench explained that the second proviso to Section 232 stipulates that the Magistrate should forward the applications filed by the accused or victim to the Court of Session with the committal of the case. As per the Bench, if the proviso is interpreted as making it obligatory for the Magistrate to forward the bail applications also to the Sessions Court, that would render the power conferred under sub-clause (a) of Section 232 nugatory. The Bench also mentioned, “The settled legal position is that a proviso has to be construed as a qualification and not as a contradiction of the main provision. The legal maxim Ut res magis valeat quam pereat, meaning 'the thing may rather have effect than be destroyed' will apply in such situations.”

The Bench thus disposed of the case by directing the Judicial Magistrate of First Class, Katttakkada to consider the petitioner's bail application and pass appropriate orders thereon, preferably on the day of filing itself.

Cause Title: Vishnu v. State Of Kerala (Neutral Citation: 2025:KER:64320)

Appearance

Petitioner: Advocates M.R.Sasith, R.K.Chirutha, Anjana Suresh, Reethu Jacob lidhiya George, Hasna Jabil, Anjitha S.

Respondent: Senior Public Prosecutor M.C. Ashi

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