Kerala High Court
Densil vs State Of Kerala, Represented By ... on 10 August, 2022
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
CRL.MC NO. 2807 OF 2022
[AGAINST THE ORDER DATED 24.2.2022 IN CRL.M.P.NO.247/2022 IN
CRL.M.C.NO.197/2018 ON THE FILE OF THE IIND ADDITIONAL SESSIONS
COURT, ERNAKULAM]
[CRIME NO.160/2018 OF KALADY POLICE STATION]
PETITIONER/ACCUSED NO.2:
GODSON, S/O. GEORGE,
AGED 22 YEARS
CHELATTU HOUSE, COMPANYPADI, NEELESWARAM,
KALADY, ERNAKULAM DISTRICT
PIN - 683574
BY ADV M.H.HANIS
RESPONDENT/S:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
BY SRI.M.P.PRASANTH, SR. PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
08.07.2022, ALONG WITH Crl.MC.2814/2022, THE COURT ON 10.08.2022
PASSED THE FOLLOWING:
Crl.M.C.Nos.2807 & 2814 of 2022 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
CRL.MC NO. 2814 OF 2022
[AGAINST THE ORDER DATED 24.2.2022 IN CRL.M.P.NO.249/2022 IN
CRL.M.C.NO.197/2018 ON THE FILE OF THE IIND ADDITIONAL SESSIONS
COURT, ERNAKULAM]
[CRIME NO.160/2018 OF KALADY POLICE STATION]
PETITIONER/ACCUSED NO.1:
DENSIL, S/O. GEORGE,
AGED 23 YEARS
CHELATTU HOUSE, COMPANYPADY, NEELESWARAM, KALADY ,
PIN - 683574
BY ADV M.H.HANIS
RESPONDENT/S:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031
BY SRI. C.S.HRITHWIK, SR. PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
08.07.2022, ALONG WITH Crl.MC.2807/2022, THE COURT ON 10.08.2022
PASSED THE FOLLOWING:
Crl.M.C.Nos.2807 & 2814 of 2022 3
O R D E R
[Crl.MC Nos.2807/2022, 2814/2022]
....
The petitioners are the accused in Crime
No.160/2018 of Kalady Police Station. The
petitioner in Crl.M.C No.2814/2022 is the 1st
accused and the petitioner in Crl.M.C. No.2807/22
is the 2nd accused in the said crime. The aforesaid
crime was registered alleging offences punishable
under Sections 341,308 and 324 r/w. Section 34 of
the Indian Penal Code (IPC).
2. The petitioners were arrested in connection
with the said case and later, as per order dated
9.2.2018 in Crl.M.C.No.197/2018, the 2nd Additional
Sessions Court, Ernakulam, granted bail to them
subject to certain conditions. One of the
conditions was that they should not involve in any
other crime of similar nature during the bail
period. Subsequently, the investigation in the
said case is completed, and the final report has
been submitted.
3. Later, Crl.M.P.Nos.249/2022 and 247/2022
were submitted by the Public Prosecutor for
cancellation of their bail. The sole reason
highlighted in the said petition is that both the
petitioners are subsequently involved in Crime
No.1159/2021 of Kuruppampady Police Station, which
was registered for the offences punishable under
Sections 143,147,308,324,506(ii)and 294(b) r/w.
Section 149 of IPC. The learned Sessions Judge, as
per orders dated 24.2.2022 allowed the said
applications after hearing the petitioners and
thereby, the bail granted to them was cancelled.
These orders are now under challenge in this
Crl.M.Cs.
4. Heard Sri.M.H.Hanis, the learned counsel
appearing for the petitioners and Sri.C.S.Hrithwik
and Sri.M.P.Prasanth, the learned Senior Public
Prosecutors for the State.
5. The contention of the learned counsel for
the petitioners is that the order of cancelling
the bail already granted in the year 2018 based on
the registration of a Crime in the year 2021 is
unwarranted. It is pointed out that, in the
subsequent crime also, the petitioners were
granted bail and are complying with the bail
conditions therein. As far as the case in which
the impugned order is passed is concerned, the
same is pending trial as the final report is
already submitted. According to the learned
counsel for the petitioners, they were falsely
implicated in the subsequent crime, and it is also
not a case which causes any interference in the
trial of the earlier case, as there is no
allegation that the alleged victim in the
subsequent crime is a witness in the crime which
is the subject matter of the order impugned in
this case. It is further contended that the fact
that the petitioners were subsequently implicated
for the offences, by itself cannot automatically
lead to the cancellation of the bail already
granted to them unless cogent and exceptional
reasons are highlighted.
6. On the other hand, the learned Senior
Public Prosecutor would seriously oppose the
aforesaid submission. It is pointed out that, the
petitioners are involved in several cases. The
petitioner in Crl.M.C.No.2807/2022 is involved in
Crime Nos. 159/2018 of Kalady Police Station, for
the offences punishable under Sections 341,324,307
r/w. Section 34 of the IPC, Crime No 160/2018 of
Kalady Police Station for the offences punishable
under Sections 341,324,308 r/w. Section 34 of the
IPC, Crime No 977/2018 of Kalady Police Station
for the offences punishable under Sections
341,323,324,308 r/w. Section 34 of the IPC, Crime
No 1499/2018 of Kalady Police Station for the
offences punishable under Sections 506,294(b) r/w.
Section 34 of the IPC and Crime No 1247/2020 of
Kalady Police Station for the offences punishable
under Sections 506, 294(b) r/w. Section 34 of the
IPC. It is also pointed out that the petitioner in
Crl.M.C.No.2807/2022 was also detained as per the
order passed by the District Collector under the
provisions of the Kerala Anti-Social Activities
(Prevention) Act. According to the learned Public
Prosecutor, the aforesaid petitioner is a habitual
offender and therefore, no interference is
warranted in the order passed by the learned
Sessions Judge.
7. The conditions to be imposed while granting
bail, are contemplated under Sections 437(3) r/w.
Section 439(1)(a) of Cr.PC. The condition not
to involve in similar offences during the bail
period is something which is specifically
stipulated in the aforesaid provision. Since such
a condition is specifically mentioned in the
statute, that would indicate the importance of
such condition and the necessity to insist on the
compliance of the same. However, the question
that arises here is whether a violation of
the said condition should result in the
cancellation of the bail in all the cases. In my
view, merely because of the reason that such a
condition was imposed while granting bail to
the accused, that would not result in the
cancellation of bail automatically. This is
particularly because, since the order of
cancellation of bail is something that affects
the personal liberty of a person, which is
guaranteed under Article 21 of the Constitution of
India, unless there are reasons justifying or
warranting such an order, the bail already granted
cannot be cancelled. In Dolat Ram and Others v.
State of Haryana [(1995)1 SCC 349], the Hon'ble
Supreme Court has observed as follows:
"5. 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 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 cancelled in a
mechanical manner without considering whether
any 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. These principles, it appears, were
lost sight of by the High Court when it
decided to cancel the bail, already granted.
The High Court it appears to us overlooked
the distinction of the factors relevant for
rejecting bail in a non - bailable case in
the first instance and the cancellation of
bail already granted."
The aforesaid view was reiterated in X v. State of
Telangana and Another reported in [(2018) 16 SCC
511]
8. In Dataram Singh v. State of Uttar Pradesh
[(2018)3 SCC 22], it was observed by the Hon'ble
Supreme Court in the manner as follows:
"It is also relevant to note that there is
difference between yardsticks for
cancellation of bail and appeal against the
order granting bail. Very cogent and
overwhelming circumstances are necessary for
an order directing the cancellation of bail
already granted. Generally speaking, the
grounds for cancellation of bail 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 concessions granted
to the accused in any manner. These are all
only few illustrative materials. The
satisfaction of the Court on the basis of the
materials placed on record of the possibility
of the accused absconding is another reason
justifying the cancellation of bail. In other
words, bail once granted should not be
cancelled in a mechanical manner without
considering whether any 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."
Therefore, while considering an application to
cancel the bail on the ground of non compliance of
the conditions, the court has to consider the
question whether the alleged violation amounts to
an attempt to interfere with the administration of
justice or as to whether it affects the trial of
the case in which the accused is implicated. In
XI, Victim SC No.211 of 2018 of POCSO Court v.
State of Kerala and Others [2019(3)KHC 26], this
Court laid down the principles with regard to the
nature of the enquiry to be conducted by the court
concerned, while considering an application for
cancellation of bail. In paragraph 9 of the said
judgment, it was observed as follows:
"9. But in a case where the victim or the
witnesses specifically complains of threat
and intimidation and the said aspects are
projected either by victim or by the
prosecution before the Bail Court through an
application as referred to in Ext.P- 5, then
it is bounden duty of the Bail Court to
consider the correctness or otherwise
of the allegations in a summary manner after
affording an opportunity of being heard to
the prosecution as well as to the affected
accused concerned whose bail is ought to be
cancelled and if possible to the victim as
well, in a case like this. In such process of
enquiry, the Bail Court could call for the
records if any in relation to those
allegations and if a separate crime has been
registered in that regard, the records in
those crimes should also be perused by the
Bail Court in order to make an enquiry in a
summary manner as to the truth or otherwise
of the allegations therein, and after
affording reasonable opportunity of being
heard to the prosecution, accused and the
victim, the Bail Court is expected to
discharge its solemn duty and function to
decide on the correctness or otherwise of the
allegations in such a summary manner and the
evidentiary assessment thereof could be on
the basis of the overall attendant
circumstances as well as the attendant
balance of probabilities of the case. Based
on such a process, the Bail Court is
obligedto take a decision whether the bail
conditions have been so violated and if it is
so found that the bail conditions has been
violated then it is the duty of the Bail
Court to cancel the bail, but certainly after
hearing the affected party as aforestated. So
also, if the said enquiry process reveals
that the truth of the above said allegations
has not been established in a convincing
manner in such enquiry process, then the Bail
Court is to dismiss the application to cancel
the bail. But the Bail Court cannot evade
from the responsibility by taking up the
specious plea that since the very same
allegations also form subject matter of a
distinct crime then the truth or otherwise of
the allegations is to be decided by the
Criminal Court which is seisin of that crime
through the process of finalisation of said
impugned criminal proceedings by the conduct
and completion of trial therein."
Thus, from all the above decisions, it is evident
that, mere violation of the condition alone is not
sufficient to cancel the bail granted by the
court. Before taking a decision, the court has to
conduct a summary inquiry based on the records,
including the documents relating to the subsequent
crime and arrive at a conclusion as to whether it
is necessary to cancel the bail or not. Therefore,
the orders impugned in these cases are to be
considered by applying the yardstick as mentioned
above.
9. When coming back to the facts of this case,
it can be seen that the petitioners are seen
implicated in the offences under Sections
341,308,324 r/w. Section 34 of the IPC, in a crime
registered in the year 2018. They were granted
bail on 9.2.2018, subject to the above conditions.
Now the present application is submitted in the
year 2022 on the allegation that the petitioners
are involved in a crime committed in the year
2021. The fact remains that in both cases, final
reports were already submitted by the Police. In
the subsequent crime also, the petitioners were
granted bail even after taking into consideration
the criminal antecedents of the petitioners.
Therefore, custody of the petitioners is not
required to conduct the trial of the said cases.
The allegations in the subsequent crime are not
relating to an act which was allegedly committed
by the petitioners with the intention to
intimidate or influence any witnesses in the crime
registered in the year, 2018. Both crimes are
entirely different and have no connection with
each other.
10. In my view, even though the court which
granted the bail is empowered to direct the arrest
of the petitioners who were already released on
bail by virtue of the powers conferred upon the
court as per Section 437(5) and 439(2) of Cr.PC,
such power has to be exercised only if it is
absolutely necessary. Of course, if the subsequent
crime is allegedly committed with the intention to
influence or intimidate the witnesses, the
consideration should have been different, but it
is not the case here. In Dataram Singh's case, it
was categorically observed that, bail once
granted, cannot be cancelled without considering
whether any 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.
11. While considering the alleged involvement
of the petitioners in the subsequent crime for
cancellation of bail, the fact that the second
crime is after three years of the earlier crime is
also a relevant aspect. The petitioners are indeed
involved in some other cases, and one of the
petitioners is already undergone preventive
detention under KAA(P)A. However, that alone
cannot be a reason to cancel the bail, unless it
is shown that the involvement of the petitioners
in the subsequent crime is affecting the trial of
the earlier case. If the prosecuting agency is
concerned with the commission of repeated offences
by the accused persons, there are ample statutory
provisions available for them to initiate
appropriate proceedings for subjecting the accused
persons to preventive detention. The stipulations
contained in Section 437(5) and 439(2) of Cr.PC
cannot be treated as a substitute for preventive
detention laws. The legislature has brought into
force, various enactments to enable the
authorities concerned to keep the persons involved
in repeated crimes under preventive detention,
despite the stipulations in 437(5) and 439(2) of
Cr.P.C. The said fact fortifies the view which I
have taken as above. Moreover, there are no
provisions in Cr.PC which specifically deal with
the cancellation of bail and instead, the power is
given to the court as per sections 437(5) and
439(2) to direct the person already released on
bail, to be arrested and committed to prison, if
it considers necessary to do so. When the court
orders the arrest of a person already released on
bail, it would have the effect of cancellation of
the bail. Therefore what is relevant is not a mere
violation of the bail condition but the
satisfaction of the court that 'it is necessary to
do so'. While considering the aforesaid question,
the matters such as; the time gap between the
crimes, the possibility of false accusation in the
subsequent case, bail granted to the accused in
the subsequent crime, stage of the prosecution of
the case in which cancellation of bail is sought,
chances of affecting or causing interference in
the fair trial of the case, etc. could be
relevant. In some cases, the commission of heinous
crimes repeatedly, in such a manner as to infuse
fear in the mind of the witnesses, which may deter
them from deposing against the accused, may also
be relevant, as it is something which affects the
conduct of the fair trial. However, no hard and
fast rules can be laid down in respect of the
same, and it differs from case to case. As held in
the case of XI, Victim SC No.211 of 2018 of POCSO
Court (supra), the court has to conduct a summary
enquiry after perusing the records and arrive at a
satisfaction as to whether it is necessary to
cancel the bail of the accused.
12. While applying the above principles to the
facts of this case, one of the crucial aspects
relevant for consideration is whether the
subsequent crime interferes with the conduct of a
fair trial of the case in which he is involved.
Such a situation is not there in this case.
Further, the mere allegation of the involvement of
the petitioners in the subsequent crime after
three years of the crime in which the bail was
granted, cannot by itself be a reason for the
cancellation of bail. Even in the subsequent
cases, the petitioners were granted bail and the
investigation in that case was also completed.
Therefore, the custody of the petitioners is not
at all necessary, and hence I do not find any
justifiable reason to sustain the order of
cancellation of bail.
In the result, both these Crl.M.Cs are
allowed. The orders passed by the IInd Additional
Sessions Court, Ernakulam on 24.02.2022
in Crl.M.P.No.247/2022 and Crl.M.P.No.249/2022 in
Crl.M.C.No.197/2018 are hereby quashed. However,
it is made clear that, this shall not preclude
the authorities concerned in initiating any
proceedings for preventive detention of the
petitioners if there are materials warranting the
same.
Sd/-
ZIYAD RAHMAN A.A.
JUDGE
pkk
APPENDIX OF CRL.MC 2807/2022
PETITIONER'S ANNEXURES:
Annexure-A TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER IN CRL.MP NO.247/2022 IN CRL.MC
NO.197/2018 IN CRIME NO.160/2018
Annexure-B CERTIFIED COPY OF THE ORDER DATED 24.02.2022
IN CRL.MP NO.247/2022 IN CRL.MC.NO.197/2018
IN CRIME NO.160/2018 OF THE II ADDITIONAL
SESSIONS JUDGE, ERNAKULAM
APPENDIX OF CRL.MC 2814/2022
PETITIONER'S ANNEXURES:
Annexure-A TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER IN CRL.MP NO.249/20222 IN CRL.M.C.
197/2018 IN CRIME NO.160/2018
Annexure-B CERTIFIED COPY OF THE ORDER DATED 24.02.2022
IN CRL.M.P.NO.249/2022 IN CRL.M.C.NO.197/2018
IN CRIME NO.160/2018 OF THE II ADDL.SESSIONS
JUDGE, ERNAKULAM
