Kerala High Court
Abdul Basheer vs The State Of Kerala on 5 January, 2021
Crl.MC.5736/2020 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
Crl.MC.No.5736 OF 2020(F)
AGAINST THE ORDER/JUDGMENT IN SC 600/2018 OF ADDITIONAL DISTRICT
COURT(SPECIAL COURT FOR TRIAL FOR MARADU CASES)KOZHIKODE
CRIME NO.426/2017 OF Kunnamangalam Police Station , Kozhikode
PETITIONER/S:
ABDUL BASHEER
AGED 49 YEARS
S/O.MUHAMMED, MALLIYATH HOUSE, NEAR MADAPPALLY HIGH
SCHOOL, MADAPALLY COLLEGE PO, KOZHIKODE-673102.
BY ADVS.
SRI.SRINATH GIRISH
SRI.P.JERIL BABU
SRI.JOJO CHACKO
RESPONDENT/S:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA ERNAKULAM-682031.
OTHER PRESENT:
PP SREEJA V.
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
21.12.2020, THE COURT ON 05.01.2021 PASSED THE FOLLOWING:
Crl.MC.5736/2020 2
V.G.ARUN, J.
-----------------------------------------------
CRL.M.C.No.5736 of 2020
-----------------------------------------------
Dated this the 5th day of January, 2021
ORDER
Petitioner is the sole accused in Crime No. 426 of 2017 of
Kunnamangalam Police Station, now pending as S.C.No. 600/2018 on the
files of the Sessions Court (Marad Cases) Kozhikode. The prosecution
allegation is that the petitioner had murdered his wife and minor child,
thereby committing offences punishable under Sections 302, 342, 447,
449, 354, 392, 325 and 201 of IPC. The petitioner was arrested on
25.5.2007 and remanded to custody. As per Annexure A1 order dated
4.12.2017, the petitioner was granted bail by this Court subject to certain
conditions. Condition No.4 of Annexure A1 required the petitioner to refrain
from committing offences while on bail. But, on 2.12.2019, Crime No. 693
of 2019 was registered against the petitioner at the Kozhikode Town Police
Station, for the offence under Section 379 IPC. Therefore, prosecution
sought cancellation of the bail granted to the petitioner alleging violation of
condition No.4 therein. By Annexure A5 order, the learned Sessions Judge
cancelled the bail and ordered re-arrest of the petitioner. Hence this
Crl.M.C.
2. Heard Sri.Srinath Girish, learned Counsel for the petitioner and
Smt. P.P.Sreeja, the learned Public Prosecutor.
3. Learned counsel for the petitioner contended that, mere
registration of a crime cannot be perceived as commission of an offence
and as such the court below went wrong in cancelling the bail on the
premise that condition No.4 in Annexure A1 order was violated. Reliance is
placed on the decision of the Apex Court in Dolat Ram v State of
Haryana [(1995) 1 SCC 349] to contend that cogent and overwhelming
circumstances are necessary for cancelling the bail already granted.
Attention is drawn to the decision in [email protected] Khajimulla Khan v State of
Karnataka (Crl.R.P No.1364 of 2019), wherein the Karnataka High Court
interfered with a lower court order cancelling bail, finding that the bail
should not have been cancelled for reason of registration of subsequent
crimes and held that a person can be held to have committed a crime only
when a court, after considering the material before it and hearing the
parties, forms an opinion to that effect at the time of framing charge.
4. The learned Public Prosecutor countered the contention and
submitted that, violation of bail condition, by itself, is sufficient reason for
cancelling the bail and the rigor of cancellation under other circumstances
will not be applicable when bail is cancelled for violation of the conditions.
5. The legal proposition that in the absence of cogent and compelling
circumstances, bail once granted cannot be cancelled, is well settled. At
the same time, there cannot be any doubt regarding the court's power to
cancel bail, when the conditions upon which bail was granted is violated by
the accused. As far as the instant case is concerned, there is no dispute to
the fact that subsequent to his release on bail, the petitioner was arrayed
as accused in a crime alleging commission of the offence under Section
379 of IPC. It is alleged that the petitioner had deceived the de facto
complainant to hand over his three wheeler motorcycle and had committed
theft of the vehicle by altering its registration number.
6. In my opinion, connotation of the word 'commit' used in the
context of imposition of a condition in a bail order, requiring the accused
not to commit any crime, is different from its meaning in Section 229
Cr.P.C. Under Section 439, bail is granted to a person 'accused of an
offence' and in custody. As per Section 154 (1), the officer-in-charge of a
police station is duty bound to register the FIR, when information relating to
the 'commission of a cognisable offence' is given. Hence, the condition
that the accused shall not commit any offence while on bail, should be
understood as any act, leading to registration of another crime, based on
the accusation of the accused having committed a cognisable offence.
Perceived in that manner, the learned Sessions Judge was justified in
cancelling the petitioner's bail for violation of condition No.4 in Annexure
A1.
In the result, the Crl.M.C is dismissed.
Sd/-
V.G.ARUN, JUDGE
vgs
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE ORDER DATED 4.12.2017 IN
BAIL.APPL.NO.7968/2017.
ANNEXURE A2 TRUE COPY OF THE FIR AND FIS IN CRIME
NO.693/2019 OF TOWN POLICE STATION,
KOZHIKODE.
ANNEXURE A3 TRUE COPY OF THE ORDER OF THE HONOURABLE
SESSIONS COURT, KOZHIKODE IN
CRL.M.C.NO.1203/2020 DATED 12.11.2020.
ANNEXURE A4 TRUE COPY OF THE C.M.P.NO.61/2020 IN
SC.600/2018 ON THE FILE OF THE SPECIAL
ADDITIONAL SESSIONS COURT (MARAD CASES),
KOZHIKODE.
ANNEXURE A5 CERTIFIED COPY OF THE ORDER OF THE SPECIAL
ADDITIONAL SESSIONS COURT (MARAD CASES),
KOZHIKODE IN C.M.P.NO.61/2020 IN
S.C.NO.600/2018.
