Section 232 BNSS | No Bar on Committal Courts to Consider Bail Applications | Right to Seek Bail Integral to Personal Liberty: Kerala High Court
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice V.G. Arun held that the committal court is not barred by the second proviso to Section 232 of the Bharatiya Nagarik Suraksha Sanhita, 2023, from considering bail applications filed by an accused during the committal stage. The Court directed the Judicial Magistrate of First Class, Kattakkada, to consider the petitioner’s bail application and to pass appropriate orders, preferably on the same day it is filed. The judgement clarified that the statutory right to seek bail cannot be eclipsed by an interpretation of procedural provisions that would otherwise leave an accused without recourse until committal to the Sessions Court.
The matter arose from Crime No.27 of 2024 registered at the Excise Range Office, Kattakkada, Thiruvananthapuram, for offences punishable under Section 55(i) of the Abkari Act, 1 of 1077. The crime was registered on the allegation that on 08.05.2024, at 07:30 pm, excise officials found the petitioner in possession of Indian Made Foreign Liquor (IMFL) at his rented house. The officials recovered one litre of IMFL from the petitioner’s possession and accused him of selling liquor without authority.
Following registration of the case, the petitioner applied for pre-arrest bail before the Sessions Court and subsequently before the High Court. Both applications were dismissed as per Annexures A1 and A2. The petitioner then approached the High Court again, this time seeking an opportunity to surrender before the trial court and for a direction that his bail application be considered on the very day of surrender.
The petitioner’s counsel submitted that even if such a direction is issued, the Magistrate may hesitate to entertain the bail application in view of the second proviso to Section 232 of the Bharatiya Nagarik Suraksha Sanhita, 2023. It was argued that if the Magistrate is to decide on bail, the decision must be based on the merits of the allegations and the prevailing circumstances, uninfluenced by the earlier dismissal of anticipatory bail applications. To substantiate this argument, reliance was placed on the precedent Sukumari v. State of Kerala [2001 KHC 43].
On the other side, the learned Public Prosecutor submitted that the petitioner had absconded throughout the investigation stage and failed to appear on summons during the committal stage as well. It was contended that he was therefore not entitled to any leniency. The Public Prosecutor also submitted that the second proviso to Section 232 does not constitute an embargo on the Magistrate’s power to consider bail applications.
The primary legal question before the Court was whether the second proviso to Section 232 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (previously Section 209 of the Code of Criminal Procedure, 1973), deprives the committal court of its power to consider bail applications at the committal stage.
The Court reproduced Section 232 in its order. The provision governs commitment of cases to the Court of Session when an offence is triable exclusively by it. Sub-clauses (a) and (b) empower the Magistrate to remand the accused to custody subject to the provisions relating to bail. The first proviso mandates completion of committal proceedings within ninety days, extendable up to one hundred and eighty days. The second proviso states that any application filed before the Magistrate by the accused or the victim in a case triable by the Sessions Court shall be forwarded to the Sessions Court with the committal of the case.
The Court considered the implications of this second proviso and whether it stripped the Magistrate of power to decide bail applications. The Public Prosecutor argued against such a reading, while the petitioner’s apprehension was that the Magistrate may decline jurisdiction citing this proviso.
Justice V.G. Arun recorded that if the second proviso to Section 232 were interpreted as a prohibition on the Magistrate’s power to consider bail applications, it would deprive the accused of the statutory right to seek bail until the case is committed to the Sessions Court. The Court observed: “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.”
Quoting Justice Krishna Iyer in Gudikanti Narasimhulu and Others v. Public Prosecutor [(1978) 1 SCC 240], the Court reiterated: “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. Personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of ‘procedure established by law’.” The Court stated that the second proviso should therefore be interpreted purposively.
In further support, the Court relied upon the Supreme Court’s discussion in Satender Kumar Antil v. Central Bureau of Investigation and Another [(2022) 10 SCC 51]. There, the Supreme Court had explained: “Clauses (a) and (b) of Section 209 of the Code give ample power to the Magistrate to remand a person into custody during or until the conclusion of the trial. Since the power is to be exercised by the Magistrate on a case-to-case basis, it is his wisdom in either remanding an accused or granting bail. Even here, it is judicial discretion which the Magistrate has to exercise.”
The judgment in Satender Kumar Antil further clarified that “a Magistrate can take a call even without an application for bail if he is inclined to do so. In such a case he can seek a bond or surety, and thus can take recourse to Section 88. However, if he is to remand the case for the reasons to be recorded, then the said person has to be heard.”
Justice Arun noted that Section 209(a) and (b) of the Code was retained as such in Section 232 of the Sanhita. Therefore, as per sub-clause (a), the Magistrate’s power to remand an accused to custody until commitment is expressly subject to the provisions relating to bail. The Court held that if the second proviso were interpreted to require mandatory forwarding of bail applications to the Sessions Court, such an interpretation would nullify the authority conferred under Section 232(a). The Court recorded that: “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 Court held that provisions must be read in a manner that gives effect to the statute as a whole. Accordingly, the second proviso to Section 232 does not prohibit consideration of bail applications by committal courts. Consequently, the petitioner’s apprehension that the Magistrate may refuse to consider his bail application was declared to be misplaced.
On the basis of these findings, the High Court disposed of the petition by directing the Judicial Magistrate of First Class, Kattakkada, to consider the petitioner’s bail application in C.P.No.185 of 2024. The Court stated that the Magistrate should pass appropriate orders, preferably on the same day the application is filed. The Court concluded with the directive: “The Crl.M.C is accordingly disposed of, by directing the Judicial Magistrate of First Class, Katttakkada to consider petitioner’s bail application in C.P.No.185 of 2024, and pass appropriate orders thereon, preferably on the day of filing itself.”
Advocates Representing the Parties
For the Petitioners: Sri. M.R. Sasith, Smt. R.K. Chirutha, Smt. Anjana Suresh.E, Smt. Reethu Jacob, Smt. Lidhiya George, Smt. Hasna Jabil, Smt. Anjitha S.
For the Respondents: Sri. M.C. Ashi, Senior Public Prosecutor
Case Title: Vishnu v. State of Kerala
Neutral Citation: 2025: KER:64320
Case Number: Crl.M.C. No. 6925 of 2025
Bench: Justice V.G. Arun
