Kerala High Court
Nibin Khan vs State Of Kerala on 5 November, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
CRL.MC NO. 7638 OF 2024
CRIME NO.258/2022 OF Kottayam West Police Station, Kottayam
AGAINST THE ORDER DATED 29.08.2024 IN CMP.NO.216/2024
IN SC NO.675 OF 2022 OF FAST TRACK SPECIAL COURT, ERATTUPETTA
PETITIONER/RESPONDENT IN CMP:
NIBIN KHAN, AGED 25 YEARS
S/O. YOOSUF, KAROTTUPARAMBIL HOUSE,
ARUVITHARA P.O., ERATTUPETTA,
KOTTAYAM DISTRICT, PIN - 686122.
BY ADVS.
JAISON JOSEPH
AKHIL S.VISHNU
M.N.SANJITH
JIMMY JOSEPH
VEENA VALLIKANTHAN
RESPONDENTS/STATE:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031.
2 INSPECTOR OF POLICE
KOTTAYAM WEST POLICE STATION, KOTTAYAM, PIN -
686013.
SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
24.10.2024, THE COURT ON 05.11.2024 PASSED THE FOLLOWING:
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Crl.M.C.No.7638/2024 2
A. BADHARUDEEN, J.
================================
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Dated this the 5th day of November, 2024
This Criminal Miscellaneous Case has been filed under Section
528 of the Bharatiya Nagarika Suraksha Sanhita, 2023 (`BNSS' for short)
challenging Annexure A8 order dated 29.08.2024 in CMP No.216/2024 in
SC.No.675/2022, on the files of the Special Court for trial of Protection of
Children from Sexual Offences (POCSO) Act, Erattupetta, and petitioner
is the sole accused in the above case.
2. Heard Advocate P.Vijayabhanu, the learned Senior
Counsel appearing for the petitioner, and the learned Public Prosecutor in
detail.
3. In this matter, crime was registered alleging commission
of offences punishable under Sections 376, 376(2)(n), 109, 312 r/w 34 of
the Indian Penal Code (`IPC' for short), by the accused. The petitioner
moved anticipatory bail application before this Court with other accused
and this Court dismissed the anticipatory bail plea of the petitioner while
allowing the same as against the other accused as per Annexure-A1 order
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in B.A.No.1318/2022 dated 30.06.2022. Later the petitioner surrendered
before the Investigating Officer and was remanded to judicial custody. As
per Annexure-A2 order dated 22.08.2022 in B.A.No.6372 of 2022, this
Court granted regular bail to the petitioner by imposing conditions.
Condition No.(c) imposed in the bail order is that "the petitioner shall not
intimidate or attempt to influence the witnesses; nor shall he tamper with
the evidence or contact the victim or her family members". While
continuing on bail, the petitioner took the defacto complainant with
intention to persuade her to withdraw from the clutches of prosecution in
S.C.No.675/2022 and sexually abused her during the period from
01.09.2023 to 11.10.2023. Thus another Crime No.2378/2023 of
Kalamassery Police Station, Ernakulam District, was registered alleging
commission of offences punishable under Sections 354, 376(2)(n) and
195A of the Indian Penal Code (`IPC' for short) as well as Section 66E of
the Information Technology Act (`IT Act' for short).
4. While assailing Annexure A8 order cancelling the bail
by the Special Judge, it is submitted by the learned Senior Counsel that in
the second crime as per Annexure-A5 order in B.A.No.10423/2023
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dated14.12.2023 this Court granted anticipatory bail to the petitioner as it
is pointed out by the learned counsel for the petitioner that the defacto
complainant and the petitioner fell in love and in consequence thereof the
first crime was registered. According to the learned counsel for the
petitioner, even though he was released as per Annexure-A2 by imposing
condition (c) that "he shall not intimidate or attempt to influence the
witnesses; nor shall he tamper with the evidence or contact the victim or
her family members", in continuation of the love affair, the petitioner and
the defacto complainant decided to live together with intention to
solemnise their marriage and notice of marriage had also been given as per
Annexure-A3. But the marriage could not be solemnised. According to
the learned counsel for the petitioner, when this Court granted bail as per
Annexure-A2 initially and in the second crime also, the cancellation of
bail ought not have been done by the trial Court as per Annexure A8.
5. In this connection the learned Public Prosecutor pointed
out the last sentence of Annexure-A2 wherein it has been provided that, in
case of violation of any of the above conditions, the jurisdictional court
shall be empowered to consider the application for cancellation, if any,
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and pass appropriate orders in accordance with law, notwithstanding the
bail having been granted by this Court. Thus as per Annexure-A2 order,
this Court permitted the trial court to consider cancellation of bail and
thereby the Special Judge considered Annexure-A6 petition and passed
Annexure-A8 order therein.
6. Now the question poses for consideration herein is that
whether the Special Court cancelled the bail as per Annexure-A8 for
justifiable reasons and the same would require interference?
7. In so far as the legal question as to whether what are the
contingencies under which bail can be cancelled the law is well settled. In
the decision reported in [2022 (7) KHC 109 : 2022 KHC OnLine 883 :
2022(6) KLT OnLine 1129], Sreeja Mannangath v. State of Kerala, this
Court considered the parameters governing cancellation of bail referring
the decisions of the Apex Court and observed in paragraphs 8 to 15 as
under:
"8. In the latest decision of the Apex Court reported in (2022
KHC 6496: 2022 (2) KLD 49 : 2022 KHC OnLine 6496 : 2022 SCC
OnLine SC 552 : 2022 (7) SCALE 411 : AIR 2022 SC 2183), P. v. State of
Madhya Pradesh and Another, three bench decision of the Apex Court
considered some of the circumstances where bail granted to the accused
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can be cancelled under S.439(1) of the Cr.P.C.. It has been held as under:
a) If he misuses his liberty by indulging in similar / other criminal activity;
b) If he interferes with the course of 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.
We may clarify that the aforesaid list is only illustrative in nature and not
exhaustive.
9. The learned counsel for the second respondent placed a
decision of this Court reported in (2022 (4) KLJ 150), Godson
(Represented by, M. H. Hanis (Adv.) v. State of Kerala (Represented by,
Prasanth M. P. (Sr.PP) & C. S. Hrithwik (Sr.PP), to contend that mere
violation of the condition of bail not to involve in similar offences during
the period of bail is not sufficient to cancel the bail granted by the Court. In
Godson's case (supra), this Court considered the decision of the Apex
Court in Dolat Ram and Others v. State of Haryana, 1995 (1) SCC 349 :
1994 ICO 4306, Dataram Singh v. State of Uttar Pradesh, 2018 (3) SCC
22 : 2018 ICO 103 and in X1, Victim SC No.211 of 2018 of POCSO Court
v. State of Kerala and Others, 2019 (3) KHC 26 : 2019 ICO 809.
10. In Dolat Ram's case (supra), the Apex Court has observed as
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follows:
"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."
Thus, it is clear that abuse of concessions granted to the accused in any
manner is a ground to cancel the bail.
11. In Dataram Singh's case (supra), it was observed by
the Apex 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
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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.
12. In Dataram Singh's case (supra) also, abuse of concessions
granted to an accused in any manner is a ground to cancel the bail.
13. In X1's case (supra), it was observed as under:
"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 P5, 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,
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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 obliged to 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."
14. In P. v. State of Madhya Pradesh's case (supra), the
Apex Court referred the earlier decisions inclusive of Dolat Ram's case
(supra). But the said decision in Dataram Singh's case (supra) was not
considered. In fact, the judgment in Dataram Singh's case (supra) was
rendered by a two Bench of the Apex Court. Similarly, the judgment in
Dolat Ram's case (supra) also was rendered by two Bench of the Apex
Court.
15. When the three Bench decision of the Apex Court in P.
v. State of Madhya Pradesh's case (supra) held that misuse of liberty by
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the accused by indulging in similar / other criminal activity is a reason for
cancellation of bail, the said ratio shall be the binding precedent. It is true
that in Godson's case (supra), the judgment was rendered by this Court on
10/08/2022 and during the relevant time also, the decision in P. v. State of
Madhya Pradesh's case (supra) rendered on 05/05/2022 would holdthe
field. Therefore, the ratio in P. v. State of Madhya Pradesh's case (supra)
rendered by the three Bench of the Apex Court shall govern the principles
regarding cancellation of bail. The ratio has been followed in another three
Bench decision reported in (2022 KHC 6591), Deepak Yadav v. State of
Uttar Pradesh and Another. Since the law is settled as discussed above, it
has to be held that, if the accused misuses his liberty by indulging in
similar/other criminal activity violating condition/conditions imposed in the
bail order, the same is a supervening circumstances to cancel the bail."
8. Recently, in the decision reported in 2024 KHC OnLine
6302 : 2024 INSC 438 : 2024 LiveLaw (SC) 392], Ajwar v. Waseem, the
Apex Court considered this question after referring its earlier judgments
and affirmed the principles in paragraphs 27 and 28 as under:
"27. It is equally well settled that bail once granted, ought not to
be cancelled in a mechanical manner. However, an unreasoned or perverse order
of bail is always open to interference by the superior Court. If there are serious
allegations against the accused, even if he has not misused the bail granted to
him, such an order can be cancelled by the same Court that has granted the bail.
Bail can also be revoked by a superior Court if it transpires that the courts below
have ignored the relevant material available on record or not looked into the
gravity of the offence or the impact on the society resulting in such an order. In P
v. State of Madhya Pradesh and Another(supra) decided by a three judges bench
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of this Court [authored by one of us (Hima Kohli, J)] has spelt out the
considerations that must weigh with the Court for interfering in an order granting
bail to an accused under S.439(1) of the CrPC in the following words:
"24. As can be discerned from the above decisions, for cancelling bail
once granted, the court must consider whether any supervening circumstances
have arisen or the conduct of the accused post grant of bail demonstrates that it is
no longer conducive to a fair trial to permit him to retain his freedom by enjoying
the concession of bail during trial [Dolat Ram v. State of Haryana, 1995 (1) SCC
349 : 1995 SCC (Cri) 237] . To put it differently, in ordinary circumstances, this
Court would be loathe to interfere with an order passed by the court below
granting bail but if such an order is found to be illegal or perverse or premised on
material that is irrelevant, then such an order is susceptible to scrutiny and
interference by the appellate court."
28. CONSIDERATIONS FOR SETTING ASIDE BAIL ORDERS
The considerations that weigh with the appellate Court for setting
aside the bail order on an application being moved by the aggrieved party
include any supervening circumstances that may have occurred after granting
relief to the accused, the conduct of the accused while on bail, any attempt on the
part of the accused to procrastinate, resulting in delaying the trial, any instance
of threats being extended to the witnesses while on bail, any attempt on the part
of the accused to tamper with the evidence in any manner. We may add that this
list is only illustrative and not exhaustive. However, the court must be cautious
that at the stage of granting bail, only a prima facie case needs to be examined
and detailed reasons relating to the merits of the case that may cause prejudice to
the accused, ought to be avoided. Suffice it is to state that the bail order should
reveal the factors that have been considered by the Court for granting relief to
the accused."
9. Thus the legal position is well settled. When a Court
grants bail after imposing conditions, violation of any of the conditions in
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a bail order would lead to cancellation of bail by invoking power under
Section 439 (2) of Cr.P.C. Section 439 (2) Cr.P.C reads as under:
"439. Special powers of High Court or Court of Session
regarding bail.
xxxx xxxx xxxx
(2) A High Court or Court of Session may direct that any person who has been
released on bail under this Chapter be arrested and commit him to custody."
10. Here evidently the petitioner was released on bail as per
Annexure-A2 order by imposing condition `c' with specific direction that
he shall not contact the victim or her family members during currency of
the bail. In gross violation of the said condition, the petitioner brought the
defacto complainant with him and lived together and subjected her to
sexual intercourse on the premise of marriage and even on giving notice
for registering the marriage under the Special Marriage Act, and thereafter
he retracted from the marriage. In such a case, even though this Court
granted anticipatory bail to the petitioner, in the second crime the same has
no bearing when considering cancellation of bail on the ground of
violation of condition `c' in Annexure-A2. No doubt, when a person
misuses the liberty granted by the order of bail by violating the
contention/s thereof, the same alone is a reason to cancel the bail. In such
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view of the matter, the order cancelling the bail order impugned herein is
only to be justified and accordingly the order impugned is found to be
sustainable. Consequently this petition is liable to be dismissed.
11. This Crl.M.C accordingly stands dismissed, with
direction to the petitioner to surrender before the jurisdictional court
forthwith, failing which the jurisdictional court is directed to proceed with
coercive steps to secure his presence, as per law.
12. Interim order already granted stands dismissed.
Registry shall forward a copy of this order to the jurisdictional
court for information and further steps through e-mail today itself.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
2024:KER:82238
PETITIONER'S ANNEXURES
Annexure A1 TRUE PHOTOCOPY OF THE ORDER IN B.A. NO.1318
OF 2022 ON THE FILES OF THIS COURT DATED
30.06.2022.
Annexure A2 TRUE COPY OF THE ORDER IN B.A. NO.6372 OF
2022 ON THE FILE OF THIS COURT DATED
22.08.2022.
Annexure A3 PHOTOCOPY OF THE REPLY OBTAINED AS PER THE
RIGHT TO INFORMATION ACT FROM THE SUB
REGISTRAR OFFICE, ETTUMANOOR ALONG WITH THE
APPLICATION.
Annexure A4 TRUE COPY OF FIR ALONG WITH THE FI STATEMENT
IN CRIME NO.2378/2023 OF KALAMASSERY POLICE
STATION.
Annexure A5 THE TRUE COPY OF THE ORDER IN B.A. NO.10423
OF 2023 ON THE FILE OF HON'BLE HIGH COURT OF
KERALA DATED 14.12.2023.
Annexure A6 THE TRUE COPY OF THE PETITION FILED BEFORE
THE FAST TRACK SPECIAL COURT, ERATTUPETTA, AS
C.M.P. NO.216/2024, TO CANCEL THE BAIL
GRANTED TO THE PETITIONER.
Annexure A7 THE TRUE PHOTOCOPY OF THE OBJECTION FILED
BEFORE THE FAST TRACK SPECIAL COURT,
ERATTUPETTA IN C.M.P. NO.216 OF 2024.
Annexure A8 THE CERTIFIED COPY OF THE ORDER DATED
29.08.2024 IN C.M.P. NO.216 OF 2024 IN S.C.
NO.675 OF 2022 ON THE FILE OF FAST TRACK
SPECIAL COURT, ERATTUPETTA.
