Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 1ST DAY OF JUNE 2023 / 11TH JYAISHTA, 1945 AGAINST Crl.M.P. NO.1100/2022 OF DISTRICT COURT & SESSIONS COURT,KOLLAM PETITIONER/RESPONDENT/1ST ACCUSED : NISHAD AGED 30 YEARS S/O.ABDUL KHADER, NISHAD MANZIL, ORUMA NAGAR-170, MANNAMALA, KILIKOLLOOR P.O, KOLLAM, PIN - 691004 BY ADVS. PRATHEESH.P ANJANA KANNATH RESPONDENTS/STATE : 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 STATION HOUSE OFFICER KILIKOLLOOR POLICE STATION, KOLLAM DISTRICT, PIN - 691004 SRI MP PRASHANTH PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01.06.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER
The bail granted to the petitioner by the Additional Sessions Judge was cancelled by the learned Sessions Judge on the application filed by the investigating officer for involvement in a subsequent crime. The said order passed by the Sessions Judge is under challenge in this petition filed under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity).
2. The setting that led to the filing of this petition is as under: The petitioner herein was arrayed as the 1st accused in Crime No. 110 of
2020 of the Kilikolloor Police Station registered under Section 323, 324, 341, 506(i), 326, and 308 r/w. Section 34 of the IPC. He was arrested in connection with the aforesaid crime on 03.02.2020. He approached the learned Additional Sessions Judge seeking bail and by order dated 04.03.2020 in Crl. M.C.No. incarceration undergone and granted bail to the petitioner subject to conditions. One of the conditions was that the petitioner shall not get involved in any other crime while on bail.
3. However, the records reveal that the petitioner, while on bail in
Crime No.110/2020, got involved in Crime No.188/2022 of the Kollam East Police Station registered for the offences punishable under Section 143, 147, 148, 294(b), 324, 326, 307 r/w Section 149 of the IPC and Section 27 of the Arms Act.
4. Immediately thereafter, the Inspector of Police, Kilikolloor Police
Station, filed an application seeking cancellation of bail on the ground that the petitioner has misused the liberty granted and had involved himself in another crime. The learned Sessions Judge, after considering the facts and circumstances and taking note of the involvement of the petitioner in subsequent graver crime involving Section 307 of the IPC, cancelled the bail. The said order is under challenge.
5. Sri. Pratheesh, the learned counsel appearing for the petitioner,
submitted that mere registration of a subsequent crime against the accused by itself cannot be a circumstance for cancellation of the bail already granted to the accused. It is urged that the presumption of innocence available to the accused in the second crime will come to his rescue. The prospect of false implication of the petitioner cannot also be ruled out. Reliance is placed on the law laid down by this Court in Godson v. State of Kerala1, and it is argued that this Court has
held that mere violation of bail conditions is not sufficient to cancel the bail, but
2022 (2) KLD 447 the satisfaction of the court that it is necessary to do so based on various factors. Reliance is also placed on the judgment rendered by a learned Single Judge in Renjith v. State of Kerala2, and it was argued that bail, once granted ought not to be cancelled for the mere asking.
6. The learned Public prosecutor has opposed the submissions. It is
submitted that the Hon’ble Supreme Court in P. v. Madhya Pradesh and Another3 has enumerated the circumstances when bail could be cancelled and one of the conditions stated therein is the misuse of the liberty granted to the petitioner by the court by involving in subsequent crimes. It is further urged that the petitioner is involved in as many as eleven other crimes, which were registered within the limits of the Kollam Revenue District, and some have been registered in the very same police station. The learned Public Prosecutor has also relied on the law laid down by a learned Single Judge in Edwin Thomas v. State of Kerala4, and it was argued that if the accused continuously misuses his liberty and gets involved in subsequent crimes, that is sufficient reason to cancel the bail.
7. I have considered the submissions advanced. [2023 (2) KHC 310] (2022 SCC Online SC 552) [2023 KHC Online 206]
8. The issue to be decided is whether the learned Sessions Judge was justified in revoking the bail granted to the petitioner for abusing the freedom granted to him.
9. While granting bail in Crime No.110/2020 of the Kilikolloor Police
Station, the learned I Additional Sessions Court had imposed various conditions. Condition No (iii) reads as under: “(iii) The petitioners shall not get involved in any other crime while on bail.”
10. Admittedly, the petitioner got himself involved in Crime
No.188/2022 of the Kollam East Police Station registered inter alia under Section 324, 326, 307 r/w Section 149 of the IPC and under Section 27 of the Arms Act,
1959. The learned Sessions Judge took note of the nature of the subsequent crime and its grave nature and proceeded to cancel the bail.
11. In this context, it would be apposite to note the subtle difference
between the setting aside of an unjustified, illegal, or perverse order by a superior court and the concept of canceling the bail by the court granting bail on the ground that the accused has misconducted himself or because of some new
facts requiring such intervention. In Gurcharan Singh and Ors. v. State
(Delhi Administration.)5, the Apex Court had occasion to observe that the
(1978) 1 SCC 118]
concept of setting aside the unjustified, illegal, or perverse order is totally different from the concept of canceling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. It was observed as follows in paragraph No.16 of the judgment as under:
16. Section 439 of the new Code confers special powers on High Court or
Court of Session regarding bail. This was also the position under Section 498 Cr PC of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may
order for grant of bail in appropriate cases. Similarly under Section 439(2)
of the new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, Section 498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other words, under Section 498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under Section 439(2). Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under Section 439(2) to
commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court. It was held that the State has two options when the accused has been granted bail by the Court of Session. It may move the same Sessions Judge if certain new circumstances have arisen which were not earlier known to the State. The State may as well approach the High Court being the superior Court under Section 439(2) of the Code, to commit the accused to custody. However, when the State is aggrieved by the order of the Sessions Judge granting bail, and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again, and it is competent in law to move the High Court for cancellation of the bail.
12. The same view was reiterated by the Apex Court in Puran v. Rambilas and Another6. It was held as follows in paragraph No. 11 of the
judgment:
11. Further, it is to be kept in mind that the concept of setting aside the
unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This [(2001) 6 SCC 338]
position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118: In that case, the Court observed as under: “If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again, and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-à-vis the High Court.”
13. In Abdul Basit alias Raju and Ors. v. Mohd. Abdul Kadir
Cahudhary and Another7, the Apex Court relying on the observations in Gurcharan Singh (supra) and Puran (supra), had observed as follows in paragraph No. 19 of the judgment:
19. Therefore, the concept of setting aside an unjustified, illegal or
perverse order is different from the concept of cancellation of a bail on the ground of accused's misconduct or new adverse facts having surfaced after the grant of bail which require such cancellation and a perusal of the aforesaid decisions would present before us that an order granting bail can only be set aside on grounds of being illegal or contrary to law by the court superior to the court which granted the bail and not by the same court.
14. In Ranjit Singh v. State of M.P.8, the Apex Court had occasion
(2014) 10 SCC 754
(2013) 16 SCC 797
to reiterate the position as regards the distinction between the parameters for grant of bail and cancellation of bail and also the distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an
order of bail on the ground that the accused has misconducted himself or certain
supervening circumstances warrant such cancellation. It was held as follows in paragraph No. 19 of the judgment.
19. It needs no special emphasis to state that there is distinction between
the parameters for grant of bail and cancellation of bail. There is also a distinction between the concept of setting aside an unjustified, illegal or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or certain supervening circumstances warrant such cancellation. If the order granting bail is a perverse one or passed on irrelevant materials, it can be annulled by the superior court. We have already referred to various paragraphs of the order passed by the High Court. We have already held that the learned trial Judge has misconstrued the order passed by the High Court. However, we may hasten to add that the learned Single Judge has taken note of certain supervening circumstances to cancel the bail, but we are of the opinion that in the obtaining factual matrix the said exercise was not necessary as the grant of bail was absolutely illegal and unjustified as the court below had enlarged the accused on bail on the strength of the order passed in Ranjeet Singh v.
State of M.P. [Ranjeet Singh v. State of M.P., MCRC No. 701 of 2013, order
dated 1-2-2013 (MP)] remaining oblivious of the parameters for grant of bail under Section 439 Cr PC. It is well settled in law that grant of bail though involves exercise of discretionary power of the court, yet the said exercise has to be made in a judicious manner and not as a matter of course.
15. In the light of the law laid down by the Apex Court as above, the courts are to bear in mind that there is a distinction between the concept of
setting aside an unjustified, illegal, or perverse order and cancellation of an order
of bail on the ground that the accused has misconducted himself or due to the happening of certain supervening circumstances warranting such cancellation. Insofar as the cancellation of bail by the superior court on the ground that the
order passed by the court granting bail is unjustified, illegal, or perverse, the
principles laid down by the Apex Court in Dolat Ram and Ors. v. State of Haryana9 shall govern the same. It was observed therein that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted have to be considered and dealt with on a different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding, is yet another reason justifying the cancellation of bail. However, bail, once granted, should not be canceled in a mechanical manner without considering whether any
(1995) 1 SCC 349
supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. Insofar as the cases in which the application for cancellation of bail is filed for misusing liberty, the fact to be taken note of by the court is whether the conditions have been violated and that the supervening circumstances warrant the cancellation of bail (See CBI v. Subramani Gopalakrishnan, [(2011) 5 SCC 296]).
16. In P. v Madhyapradesh (supra), the Hon'ble Apex Court has
adverted to all the past precedents and has encapsulated the circumstances under which bail granted to the accused under S.439 (1) of the Cr. P. C. can be revoked. They are
a) If he misuses his liberty by indulging in similar/other criminal activity; b) If he interferes with the course of the investigation; c) If he attempts to tamper with the evidence; d) If he attempts to influence/threaten the witnesses; e) If he evades or attempts to evade court proceedings; f) If he indulges in activities which would hamper smooth investigation; g) If he is likely to flee from the country; h) If he attempts to make himself scarce by going underground and/or
becoming unavailable to the investigating agency; i) If he attempts to place himself beyond the reach of his surety. j) If any facts may emerge after the grant of bail which are considered unconducive to a fair trial
17. The Apex Court has emphatically stated that misuse of the liberty granted is sufficient enough ground to cancel the bail once granted.
18. In the case on hand, the records reveal that the petitioner is the accused in the following crimes. Sl. Crime No. Police Station Offences No. 1 373/2018 Kilikolloor Police station 323, 324, r/w. 34 IPC
2. 2329/2015 Parippally Police station 392, 34 IPC
3. 2970/2016 Kottiyam Police station 392, 411 r/w. 34 IPC
4. 2416/2016 Eravipuram Police station 392, 411 r/w.34 IPC
5. 82/2016 Sakthikulangara Police station 392 r/w.34 IPC
6. 1645/2019 Kundara Police station 294(b), 323, 324, 506(i), 307 & 34 IPC
7. 2035/2019 Kundara Police station 294(b), 506(i), 307 & 34 IPC.
8. 1507/2020 Kilikolloor Police station 394, 294(b)IPC
9. 734/2021 Eravipuram Police station 341, 324, 114, 308 r/w. 34 IPC 10 462/2021 Kannanalloor Police station 143, 147, 148, 323, 324, 341, 308, 119, 294(b) IPC. 11 2093/2021 Kundara Police station 294(b), 506 IPC
19. After the grant of bail in Crime No. 110/2020 of the Kilikolloor
police station, the petitioner has got involved in Crime No. 188 of 2022 registered at the Kollam East Police station under Section 143, 147, 148, 294(b), 324, 326 and 307 r/w. Section 149 of the IPC and Section 27 of the Arms Act. The allegations are serious, and the subsequent crime involves offences that are graver than the case in which bail was originally granted. Of course, the situation would have to be considered differently in cases where the offence in which the accused got involved subsequently was one which was minor in nature, less grave, or did not involve moral turpitude.
As the petitioner has misused the liberty granted to him, the learned Sessions Judge was well justified in canceling the bail. In that view of the matter, the impugned order does not warrant any interference. However, it is made clear that the above order shall not stand in the way of the petitioner surrendering before the jurisdictional court and seeking regular bail. If any such application is filed, the same shall be considered in the light of the principles governing the
grant of bail and as reiterated in Deepak Yadav v. State of U.P.,10 which lays down that the relevant conditions for grant of bail are; (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Appropriate orders shall be passed on its merits, untrammeled by any of the observations above. This Crl.M.C. is dismissed.
RAJA VIJAYARAGHAVAN V. JUDGE PS/31/5/2023
(2022) 8 SCC 559)
APPENDIX OF CRL.MC 3419/2023 PETITIONER ANNEXURES Annexure A1 THE COPY OF THE ORDER IN CRL.M.C NO.282/2020 ON THE FILE OF I ADDL. SESSIONS COURT, KOLLAM DATED 4.3.2020 Annexure A2 THE COPY OF THE ORDER PASSED BY THE SESSIONS COURT, KOLLAM IN CRL.M.P NOS.1100/2022 IN CRL.M.C NO.282/2020 DATED 3.3.2023