Kerala High Court
Xxxxxx vs State Of Kerala on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
CRL.MC NO. 1411 OF 2024
PETITIONER/DEFACTO COMPLAINANT:
XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV MILLU DANDAPANI
RESPONDENTS/STATE:
1 STATE OF KERALA
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH
COURT OF KERALA-., PIN - 682031
2 SURESH BABU K.V
AGED 58 YEARS
S/O VELAYUDHAN " SHEEBA NIVAS " KADUNGAMPOYIL HOUSE ,
CHEVAYUR P.O KOZHIKODE DISTRICT, PIN - 673017
BY ADVS.
SHARAN SHAHIER
RAKHY BABY(K/001411/2018)
SMT.NIMA JACOB.PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
12.04.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl. M.C. No.1411 of 2024
2
P.G. AJITHKUMAR, J.
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Crl. Appeal No.1411 of 2024
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Dated this the 12th day of April, 2024
ORDER
This petition was filed under Section 482 of the Code of Criminal Procedure, 1973. The petitioner seeks to set aside Annexure A3 order.
2. Heard the learned counsel for the petitioner, the learned Public Prosecutor, and the learned counsel for the 2nd respondent.
3. Annexure A3 is an order passed by the Court of Session, Kozhikode in Crl. M.C No.17 of 2024 which is an application filed under Section 438 of the Code by the 2 nd respondent seeking anticipatory bail. The learned Sessions Judge allowed it, ordering to release the 2nd respondent, in the event of his arrest in crime No.17 of 2024 of Kakkur Police Station, on bail subject to a few conditions. The operative part of Annexure A3 reads:
Crl. M.C. No.1411 of 20243
1. In the event of arrest/surrendering of the petitioner/accused, he shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum to the satisfaction of the Arresting Officer.
2. The petitioner/accused shall appear before the Officer as and when he is directed to do so in writing, till the completion of the investigation of this case.
3. The petitioner/accused shall fully co-operate with the investigation including for his medical examination if any required.
4. The petitioner/accused shall not directly or indirectly make any inducement, threat or promise to the defacto complainant or any person acquainted with the facts of the case so as to dissuade him/her from giving statement or evidence.
5. Petitioner/accused shall not involve in any other offence while he is on bail.
6. It is made clear that, in the event of violation of any of the above conditions, the Investigating Officer is at liberty to approach the jurisdictional court, for cancellation of bail.
4. The petitioner is the defacto complainant in crime No.17 of 2024 of Kakkur Police Station. Her grievance is that she was not given notice before granting anticipatory bail to the 2nd respondent. It is contended that the 2 nd respondent placed before the Sessions Court wholly incorrect facts and if Crl. M.C. No.1411 of 2024 4 the petitioner was heard, she could have apprised true facts and then the court would not have granted bail to the 2nd respondent. The decisions relied on by the learned Sessions Judge are said to be inapplicable to the facts of the case on hand as well. Accordingly, the learned counsel for the petitioner would submit that Annexure A3 order is incorrect and liable to be set aside.
5. The learned counsel for the 2nd respondent would submit that the Sessions Court has jurisdiction and discretion to grant anticipatory bail, even without giving notice to the defacto complainant. Since the petitioner was granted bail after considering all the materials before the court, that order is not liable to be set aside. The learned counsel for the 2 nd respondent placed reliance on Deepak Yadav v. State of U.P. & Another [(2022) 8 SCC 559] in the above regard. It is further submitted that the investigation in the matter is already complete and a final report has been filed. Therefore, the question of setting aside the anticipatory bail does not arise for, even if the order is set aside, no consequence will follow inasmuch as the jurisdiction concerning bail to the 2 nd Crl. M.C. No.1411 of 2024 5 respondent is now seisin of the jurisdictional court.
6. The learned Public Prosecutor would submit that a final report in Crime No.17/2024, Kakkur Police Station was already submitted before the Judicial Magistrate of the first Class-III, Kozhikode. The matter is now pending as C.P. No.25/2024. It is further submitted that the said case stands posted on 15.04.2024 for the appearance of the 2 nd respondent.
7. From Annexure A3, it is evident that no notice was given to the petitioner before granting anticipatory bail to the 2nd respondent. The learned Sessions Judge observed in the impugned order that co-operation of the petitioner to the investigation can be secured and the interest of the victim can be protected by imposing strict conditions. Such an observation was made without the petitioner-victim being heard.
8. In Jagjeet Singh and others v. Ashish Mishra and others [(2022) 9 SCC 321] the Apex Court considered the necessity of giving notice to the victim of the offence while deciding bail application. There is no statutory obligation to Crl. M.C. No.1411 of 2024 6 give notice to the defacto complainant except in a few situations, such as, under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 439(1-A) of the Code, etc. However, the Apex Court held, on the point of prejudice that may happen to the victim in cases involving heinous offence, that notice shall be given to the victim before granting bail to the person accused of the offence. It was observed that the presence of State in a proceedings of bail application does not tantamount to hearing of the victim of the crime. The observations of the Apex Court reads:
"25. what must be taken note of is that; First, the Indian jurisprudence is constantly evolving, whereby, the right of victims to be heard, especially in cases involving heinous crimes, is increasingly being acknowledged; Second, where the victims themselves have come forward to participate in a criminal proceeding, they must be accorded with an opportunity of a fair and effective hearing. If the right to file an appeal against acquittal, is not accompanied with the right to be heard at the time of deciding a ball application, the same may result in grave miscarriage of justice. Victims certainly cannot be expected to be sitting on the fence and watching the proceedings from afar, especially when they may have legitimate grievances. It is Crl. M.C. No.1411 of 2024 7 the solemn duty of a court to deliver justice before the memory of an injustice eclipses."
The Apex Court accordingly held that a bail application in a case involving a heinous crime shall be decided on merits and after giving an opportunity of being heard to the victim as well.
9. Here, the offences alleged against the 2 nd respondent include the one punishable under Section 376(2)
(m) of the IPC, which is of a heinous nature. The petitioner has a specific allegation that apart from committing sexual offence, the 2nd respondent deceptively extracted a huge amount from her. Considering the nature of the said allegations levelled against the 2nd respondent, the Sessions Court ought to have given notice to the petitioner before passing Annexure A3 order in the light of the law laid down by the Apex Court in the aforesaid decision.
10. In Deepak Yadav (supra) the Apex Court deliberated on the question of jurisdiction to cancel bail. Illustrative circumstances for cancelling bail are enumerated in paragraph No.31 which reads:
Crl. M.C. No.1411 of 20248
"31. It is no doubt true that cancellation of bail cannot be limited to the occurrence of supervening circumstances. This Court certainly has the inherent powers and discretion to cancel the bail of an accused even in the absence of supervening circumstances. Following are the illustrative circumstances where the bail can be cancelled :-
a) Where the court granting bail takes into account irrelevant material of substantial nature and not trivial nature while ignoring relevant material on record.
b) Where the court granting bail overlooks the influential position of the accused in comparison to the victim of abuse or the witnesses especially when there is prima facie misuse of position and power over the victim
c) Where the past criminal record and conduct of the accused is completely ignored while granting bail.
d) Where bail has been granted on untenable grounds.
e) Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice.
f) Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which disentitles him for bail and thus cannot be justified.
g) When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case."
11. Having regard to the facts of this case, failure to give notice to the petitioner may be a reason coming within clause (e) mentioned above. But, the grounds enumerated by Crl. M.C. No.1411 of 2024 9 the Apex Court in Deepak Yadav are concerning regular bail. The Apex Court in State of Maharashtra and another v. Mohammed Husain Mohammed S. Husain [(2008) 1 SCC 213] observed that in an application for cancellation of bail, conduct after release on bail and the supervening circumstances alone are relevant. But the court while considering an appeal against the grant of anticipatory bail would keep in mind the parameters laid down therefor. The matter, however, may be different for deciding an appeal from an order granting bail, where the accused has been at large for a considerable time, in which event, the post-bail conduct and other supervening circumstances will also have to be taken note of.
12. Annexue A3 suffers from the vice of non-observance of the law laid down in Jagjeet Singh (supra) since the Sessions Court did not give notice to the petitioner. The question that immediately arises is what shall be the consequence to be followed if Annexure A3 is set aside. As stated, the final report was already filed in Crime No.17/2024 of Kakkur Police Station, and the court took cognizance of the Crl. M.C. No.1411 of 2024 10 offences. In Mohammed Husain (supra) even while the order granting anticipatory bail was set aside, the accused was allowed to move an application for regular bail before the jurisdictional court, with a direction that the court shall decide the application on its own merits without being influenced, in any way, by the judgment cancelling the order granting anticipatory bail. It was so held taking note of the fact that a final report was already submitted.
13. The petitioner does not allege that after grant of bail the 2nd respondent did anything to obstruct the investigation in the matter or to harm the petitioner. Hence, for the reason of denial of opportunity to the petitioner of being heard alone and in order to afford an opportunity of being heard to the defacto complainant-petitioner Annexure A3 order is liable to be set aside. However, the jurisdictional court shall consider the application for regular bail to be submitted by the 2 nd respondent on his appearance/surrender, on its own merits, and untrammeled by the observations or findings in Annexure A3 order.
14. Accordingly, Annexure A3 is set aside. However, it Crl. M.C. No.1411 of 2024 11 is ordered that the jurisdictional court shall decide the application for regular bail the 2nd respondent would submit to it on its merits after hearing the defacto complainant and in the light of the observations made herein before, and untrammeled by the observations or findings in Annexure A3 order. It is made clear that until the jurisdictional court decides on the application for regular bail, the 2 nd respondent shall continue on bail, provided he was already released on bail in terms of Annexure A3.
The Crl. M. C. is disposed of as above.
Sd/-
P.G. AJITHKUMAR, JUDGE SMF Crl. M.C. No.1411 of 2024 12 APPENDIX OF CRL.MC 1411/2024 PETITIONER ANNEXURES ANNEXURE A1 THE TRUE COPY OF THE FIR NO.17/2024 OF KAKKOOR POLICE STATEION ANNEXURE A2 THE TRUE COPY OF THE STATEMENT GIVEN BY THE PETITIONER BEFORE THE ASSISTANT SUB INSPECTOR OF POLICE, KAKKOR POLICE STATION ANNEXURE A3 THE CERTIFIED COPY OF THE BAIL ORDER IN CRL. MISCELLANEOUS CASE NO 70/2024 PASSED BY THE COURT OF SESSIONS KOZHIKODE DATED 20.01.2024 ANNEXURE A4 THE TRUE COPY OF THE DEATH CERTIFICATE OF THE PETITIONER'S HUSBAND NAMELY ARAVINDAKSHAN DATED 20.08.2014 ANNEXURE A5 THE TRUE COPY IF THE PASSBOOK ISSUED BY THE NANMINDA CO-OPERATIVE SOCIETY DATED 10.01.2020 ANNEXURE A6 THE PHOTOGRAPH TAKEN DURING THE MARRIAGE OF THE PETITIONER'S DAUGHTER