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:
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
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
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
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
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:
"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
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
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
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
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
