Kerala High Court
Cyril Shaju vs State Of Kerala on 10 October, 2024
2024:KER:75538
Crl.M.C.No.7970/2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
CRL.MC NO. 7970 OF 2024
CRIME NO.248/2024 OF Irinjalakuda Police Station, Thrissur
AGAINST THE ORDER IN CRL.M.P.NOS.220 & 240 OF 2024 IN SC NO.720 OF
2024 OF SPECIAL COURT FOR SC/ST ATROCITIES ACT CASES, THRISSUR
PETITIONER/SOLE ACCUSED:
CYRIL SHAJU
AGED 25 YEARS
S/O SHAJU, THEKKEKALATHINKAL HOUSE, CANAL ROAD,
CHERIYAVAPALASSERY DESOM, ANGAMALI SOUTH VILLAGE,
ERNAKULAM TALUK, ERNAKULAM DISTRICT, PIN - 683573.
BY ADVS.
JITHIN BABU A
ARUN SAMUEL
ANOOD JALAL K.J.
RAPHAEL THEKKAN(K/000612/2019)
RESPONDENTS/STATE OF KERALA & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031.
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
26.09.2024, THE COURT ON 10.10.2024 PASSED THE FOLLOWING:
A. BADHARUDEEN, J.
================================
Crl.M.C.No.7970 of 2024
================================
Dated this the 10th day of October, 2024
ORDER
This Criminal Miscellaneous Case has been filed under
Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023
(`BNSS' for short) by the accused in Crime No.248/2024 seeking
the following reliefs:
"i. To set aside the Annexure 7 order in
Crl.M.P.No.220/2024 in Crime No.248/2024 of
Irinjalakuda Police Station in SC 720/2024 on the file of
Court of Special Jude, Special Court for SC/ST (POA)
Act Cases, Thrissur, in the interest of justice.
ii. To direct the learned Sessions Judge to
enlarge ghe petitioner on bail in Crime No.248/2024 of
Irinjalakuda police station in SC 720/2024 on the file of
Court of Special Jude, Special Court for SC/ST (POA)
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Act, Cases, Thrissur, in the interest of justice.
iii. To dispense any other relief as deem just fit
for the above case, in the interest of justice."
2. Heard the learned counsel for the petitioner and the
learned Public Prosecutor in detail. Perused the relevant documents,
including Annexure 7 order.
3. Annexure 7 common order in Crl.M.P.No.220/2024 and
Crl.M.P.No.240/2024 in S.C.No.720/2024 on the files of the Special Court
for trial of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act
Cases, Thrissur, arose out of Crime No.248/2024, is under challenge in
this petition. Here the prosecution alleges commission of offences
punishable under Section 376(2)(n), 406, 420 and 3(2)(va) of the SC/ST
(POA) Act and the allegation is that the accused, who is not a member of
either Scheduled Caste or Scheduled Tribe, subjected the victim, who is a
member of the Scheduled Caste community, to repeated sexual intercourse
on the promise of marriage and also obtained Rs.2,50,000/- from the
victim. The petitioner was arrested on 07.03.2024 and subsequently
released on bail on 23.03.2024 by imposing conditions as per Annexure
A3 order. Thereafter in violation of one of the conditions in the bail order,
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he had involved in another crime, viz. Crime No.595/2024 of Irinjalakkuda
Police Station, where the prosecution alleges commission of offences
punishable under Sections 341, 323, 506, 294(b) and 448 of IPC and the
specific allegation is that at 1 a.m (after midnight) on 09.04.2024 the
accused herein trespassed upon the house of the same victim and
threatened her stating that she would be killed if she would not withdraw
from the present crime. Then the prosecution filed Crl.M.P.No.220/2024
to cancel the bail granted to the petitioner and the petitioner moved
Crl.M.P.No.240/2024 to modify the bail conditions and finally the trial
court allowed Crl.M.P.No.220/2024 and cancelled the bail of the petitioner
while dismissing his prayer to modify the bail conditions.
4. While granting bail as per Annexure 3, the Special Court
imposed 4 conditions and the 4th condition was that the accused shall not
involve in any other crime. But in gross violation of the bail conditions,
he got involved in Annexure 4 crime, that too, after trespassing upon the
residence of the victim after abusing and threatening her with dire
consequence that if the present crime could not be withdrawn the victim
would be killed. Even though voice clips were placed before the trial
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court to contend that the allegation in the second crime was false, on
verifying the audio clip along with the prosecution allegations, the learned
Special Judge found that the petitioner misused his liberty and involved in
the second crime which was, prima facie, established and, therefore, his
bail is liable to be cancelled.
5. 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
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;
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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
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
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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
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
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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,
accused and the victim, the Bail Court is expected to discharge its solemn
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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
the accused by indulging in similar / other criminal activity is a reason for
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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."
6. 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
of this Court [authored by one of us (Hima Kohli, J)] has spelt out the
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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."
7. 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. "
8. Here, evidently as borne out from the records and found
by the learned Special Judge, the petitioner while continuing on bail in
Crime No.248/2024 of Irinjalakuda Police Station, involved in another
crime, viz. Crime No.595/2024 of the same police station and in the
second crime also the victim is the same. Thus it is established that the
petitioner violated condition No.(iv) warranting cancellation of bail.
9. Reading the facts of the case, it is emphatically clear that
the petitioner, who was released on bail by imposing a condition that he
shall not involve in any other crime, committed another crime, that too,
against the victim in the present crime with intention to stifle her from the
prosecution case. In view of the above discussion, it is held that Annexure
7 order passed by the Special Judge cancelling the bail already granted to
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the petitioner and dismissing the prayer of the petitioner to modify the bail
conditions, doesn't require any interference.
10. Thus confirming Annexure 7 order, this Crl.M.C stands
dismissed with direction to the petitioner to surrender before the trial court
forthwith, or else the trial court is at liberty to arrest and produce the
petitioner before the Special Court, without fail.
Registry is directed to forward a copy of this order to the
jurisdictional court concerned, for information and further steps.
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
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PETITIONER'S ANNEXURES
ANNEXURE 1 : A TRUE COPY OF FIR IN CRIME NO.24/2024 OF ALUVA
POLICE STATION, ERNAKULAM DISTRICT.
ANNEXURE 2 : A TRUE COPY OF THE REMAND REPORT FILED BY THE
IRINJALAKUDA POLICE, THRISSUR DISTRICT.
ANNEXURE 3 : A TRUE COPY OF THE ORDER DATED 23.03.2024 IN
CRL.M.P.NO.127/2024 IN THE COURT OF SPECIAL JUDGE, SPECIAL COURT
FOR SC/ST (POA) ACT, CASES, THRISSUR.
ANNEXURE 4 : A TRUE COPY OF THE FIR IN CRIME NO.595/2024 DATED
01.05.2024.
ANNEXURE 5 : A TRUE COPY OF THE PETITION DATED 02.05.2024
SUBMITTED BY THE DEPUTY SUPERINTENDENT OF POLICE, IRINJALAKUDA.
ANNEXURE 6 : A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER
HEREIN DATED 09.05.2024.
ANNEXURE 7 : A TRUE COPY OF THE COMMON ORDER DATED 21.08.2024 IN
CRL.M.P.NO.240/2024 AND 220/2024 IN THE COURT OF SPECIAL JUDGE,
SPECIAL COURT FOR SC/ST (POA) ACT, CASES, THRISSUR.
