Kerala High Court

Salini Vijayan vs State Of Kerala on 3 March, 2025

                                                                  2025:KER:17607

                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                   THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

            MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946

                            CRL.MC NO. 5631 OF 2022

             CRIME NO.606/2020 OF MARADU POLICE STATION, ERNAKULAM

AGAINST THE ORDER DATED 10.08.2022 IN C.M.P. NO.2442/2022 IN C.C. NO.95 OF 2022

     ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM


PETITIONER/PETITIONER/DEFACTO COMPLAINANT:

             PREETHA RADHAKRISHNAN
             AGED 47 YEARS
             W/O.RADHAKRISHNANKANDOTH, KALHARAM KANDOTH, PATTUPURACKAL ROAD,
             THEKKUMBHAGAM, THRIPUNITHURA, ERNAKULAM DISTRICT, PIN - 682301

             BY ADV VIVEK VENUGOPAL


RESPONDENTS/RESPONDENT/STATE & 1ST ACCUSED:

     1       STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
             PIN - 682031

     2       C.K. VIJAYAN
             AGED 58 YEARS
             S/O. KRISHNANKUTTY, FLAT NO.6A, VIJAYA GLIMPSES, JAWAHAR NAGAR,
             KADAVANTHRA, ERNAKULAM, KOCHI, PIN - 682020


             BY ADVS.
             PUBLIC PROSECUTOR
             BENNY JOSEPH
             M.B.SANDEEP(K/796/2006)
             PP - JIBU T S


      THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.02.2025, ALONG

WITH CRL.MC.5639/2022, THE COURT ON 03.03.2025 PASSED THE FOLLOWING:
                                                                         2025:KER:17607
Crl.M.C. Nos. 5631 & 5639 of 2022
                                           2


                    IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                    THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

             MONDAY, THE 3RD DAY OF MARCH 2025 / 12TH PHALGUNA, 1946

                              CRL.MC NO. 5639 OF 2022

              CRIME NO.606/2020 OF MARADU POLICE STATION, ERNAKULAM

 AGAINST THE ORDER DATED 10.08.2022 IN C.M.P. NO.2442/2022 IN C.C. NO.95 OF

 2022 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE - VIII, ERNAKULAM


PETITIONER/ACCUSED NOS.2 AND 3:

     1        SALINI VIJAYAN
              AGED 48 YEARS
              FLAT-6A, VIJAYA GLIMPSES, JAWAHAR NAGAR, KADAVANTHARA,
              ELAMKULAM VILLAGE, PIN - 682020

     2        SAIRA THAMPI KRISHNA
              AGED 54 YEARS
              FLAT-7A, VIJAYA GLIMPSES, JAWAHAR NAGAR, KADAVANTHARA,
              ELAMKULAM VILLAGE, PIN - 682020

              BY ADVS.
              BENNY JOSEPH
              M.B.SANDEEP(K/796/2006)



RESPONDENTS/COMPLAINANT:

     1        STATE OF KERALA
              REPRESENTED BY SUB INSPECTOR OF POLICE, MARADU POLICE STATION
              IN CRIME NO. 606/2020 THROUGH THE PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

     2        PREETHA RADHAKRISHNAN
              AGED 47 YEARS
              KANDOTH, KALHARAM KANDOTH, PATTUPURACKAL ROAD, THEKKUMBHAGOM,
              TRIPUNITHURA, PIN - 682301

              BY ADV VIVEK VENUGOPAL


      THIS     CRIMINAL    MISC.    CASE       HAVING   BEEN    FINALLY     HEARD   ON
18.02.2025,    ALONG   WITH    CRL.MC.5631/2022,        THE    COURT   ON   03.03.2025
PASSED THE FOLLOWING:
                                                           2025:KER:17607
Crl.M.C. Nos. 5631 & 5639 of 2022
                                    3


                                                           "C.R"

                         COMMON ORDER

Dated this the 3rd day of March, 2025

Crl.M.C. No.5631 of 2022 has been filed under Section

482 of the Code of Criminal Procedure, 1973 [hereinafter

referred as 'Cr.P.C' for short], at the instance of the defacto

complainant in C.C. No.95/2022 on the files of the Judicial

First Class Magistrate Court-VIII, Ernakulam, arose out of

Crime No.606/2020 of Maradu Police Station, challenging

the order in C.M.P. No.2442 of 2022 dated 10.08.2022,

whereby the learned Magistrate disallowed the prayer to

cancel the bail granted to the 1 st accused in the above case.

The respondents herein are the State represented by the

learned Public Prosecutor and the 1st accused in the above

case.

2. Crl.M.C. No.5639 of 2022 is at the instance of

accused Nos.2 and 3, challenging the same order, whereby

their bail was cancelled by the learned Magistrate on finding

violation of bail conditions. The respondents herein are the

State and the defacto complainant in the above case.

2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

3. The parties will be referred as 'prosecution',

'accused' and 'defacto complainant', for convenience.

4. Heard the learned counsel for the defacto

complainant and accused and also the learned Public

Prosecutor, in detail. Perused the records and relevant

materials available.

5. Tracing yesteryear of this case, as on

02.11.2020, accused Nos.1 to 3 in Crime No.606 of 2020 of

Maradu Police Station, Ernakulam (later the investigation

was taken over by the Crime Branch and the crime number

got changed as Crime No.145/CBEOW/EKM/2023), were

granted regular bail by this Court, by allowing B.A.

Nos.6695 and 6714 of 2020 by common order dated

02.11.2020, by imposing stringent conditions. At the time

of granting of bail to accused Nos.1 to 3, the conditions

imposed by this Court are as under:

(i) They shall surrender their passport before the jurisdictional court and shall not go abroad without permission of the court. In case they do not have a passport, they shall file an affidavit to that effect.

                 (ii)   They    shall       appear       before    the
                                                          2025:KER:17607
Crl.M.C. Nos. 5631 & 5639 of 2022

investigating officer on all Mondays between 9 a.m. and 12 noon for a period of two months or till the filing of the final report, whichever is earlier.

(iii) They shall produce all documents, which are called upon to be produced by the investigating officer.

(iv) They shall not get involved in similar cases during the pendency of the bail,

(v) They shall not tamper with evidence, intimidate or influence the witnesses .

6. According to the defacto complainant, who filed

C.M.P. No.2442/2022 in C.C. No.95/2022 under Section

439(2) of Cr.P.C. before the trial court to cancel the bail

granted to the accused, though the accused executed bail

bonds and continued on bail, they failed to comply

condition Nos.1 and 4 of the bail order of this Court. The

trial court, in fact, given much emphasis to violation of

condition No.1 and accordingly bail granted to accused Nos.

2 and 3 was cancelled. But, the trial court did not cancel

the bail granted to the 1st accused, noticing that the 1st

accused surrendered his passport in obedience to the

direction of this Court. Though, the 1 st accused got released 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

his passport for a short visit to Dubai for business purpose

and the passport was released with direction to surrender

the same on 28.03.2021, the 1 st accused surrendered the

passport on that day itself.

7. While justifying the order of the trial court,

whereby the bail granted to accused Nos. 2 and 3 was

cancelled by the learned Magistrate and impeaching the

veracity of the findings entered by the trial court while

disallowing the prayer to cancel the bail granted to the 1 st

accused on finding violation of bail conditions, the learned

counsel for the defacto complainant argued that in

paragraph No.12 of Annexure.7 order in Crl.M.C. No.5631 of

2022 itself, the learned Magistrate found that the passport

surrendered by the 1st accused in tune with the direction in

the bail order of this Court was released as per the order

dated 06.03.2021, for a short visit to Dubai for business

purpose with specific direction that he should surrender the

same on 28.03.2021 and he should not take up

employment/employment residence in any foreign country

without permission of the Court. In violation of this

direction, the 1st accused applied for residence/employment 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

visa. But, the learned Magistrate was not inclined to cancel

the bail on the finding that 1 st accused had duly

surrendered his passport on 28.03.2021. It is pointed out by

the learned counsel for the defacto complainant further

that, in fact, applying for a residence/employment visa and

getting visa stamped for the said purpose for three years,

as could be seen from Annexure.5 in Crl.M.C. No.5631/2022

(page No.35) would show that the 1 st accused also violated

condition No.5 of Annexure.3 order dated 06.03.2021 in

C.M.P. No.422/2021. Therefore, the bail granted to the 1 st

accused also is liable to be cancelled by allowing Crl.M.C.

No.5631/2022.

8. The learned counsel for the defacto complainant

also pointed out the subsequent acts at the instance of the

accused persons by forging records and filing application

before the State Bank of India to change the name of the

Company excluding the defacto complainant, who also is

one among the Directors, having 34% of share, referring to

Annexures.R2(c), (d), (e) and (f) in Crl.M.C. No.5639/2022.

9. While resisting the contentions raised by the

learned counsel for the defacto complainant, it is pointed 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

out by the learned counsel for accused Nos.1 to 3 that,

though visa was stamped for a period of three years, when

the 1st accused visited Dubai, when he was given

permission to go abroad for business purpose by the trial

court as per the order dated 06.03.2021 in C.M.P.

No.422/2021, that was not an employment visa and the

same was obtained only for doing partnership business and

not otherwise. Therefore, there is no violation of bail

conditions, even otherwise. Thus, the learned Magistrate is

right in negativing the bail cancellation plea at the instance

of the defacto complainant, insofar as the 1 st accused is

concerned.

10. Inasmuch as the allegation as to violation of

condition No.4 in the order dated 02.11.2020 in B.A.

Nos.6695 and 6714 of 2020, that the accused should not

get involved in similar cases during the pendency of the

bail, it is pointed out by the learned counsel for the accused

that, even though as per Annexure.R2(i) in Crl.M.C.

No.5639/2020, FIR was registered on 23.12.2021 as against

the accused herein, the same was pertaining to offences

alleged to be committed during the period between 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

04.05.2019 to 04.11.2019. Therefore, the same could not

be considered as a subsequent crime in violation of

condition No.4 of the bail order of this Court. If the

allegations are taken as true, then also the offences alleged

were committed by the accused prior to grant of bail to the

accused on 02.11.2020 by this Court. According to the

learned counsel for the accused, it is true that accused

Nos.2 and 3 failed to surrender their passports as per

condition No.1 of the order of this Court and that would

show violation of condition No.1, they surrendered their

passport on getting notice in C.M.P. No.2442/2022 in C.C.

No.95/2022 filed on 01.06.2022. In this case, the trial court

found violation of bail condition No.1 by accused Nos.2 and

3 and also found no absolute violation of bail condition by

the 1st accused as stated in paragraph Nos. 9 to 12 of the

order dated 10.08.2022 in C.M.P. No.2442/2022 in C.C.

No.95/2022.

11. Now, the questions arise for consideration are,

whether the learned Magistrate is justified in canceling the

bail of accused Nos.2 and 3 on finding violation of bail order

granted by this Court? and whether the learned Magistrate 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

went wrong in dismissing the application filed by the

defacto complainant seeking cancellation of bail granted to

the 1st accused?

12. In this matter, Crime No.606 of 2020 of Maradu

Police Station was registered alleging commission of

offences punishable under Sections 120B, 406, 420, 468

and 471 of IPC against accused Nos.1 to 3 and the

prosecution allegation is that, the accused had started a

company by name M/s Statice Hotels Private Ltd

incorporated in the year 16.02.2010 with the accused as

directors. The company was started in the year 2005 and

subsequently, the name was altered to Lokanta Hotels and

Resorts Private Ltd. The 1st accused was the Managing

Director and the other accused were the directors. The

company was started mainly with the object of starting

hotels and was engaged in the business of hospitality and

real estate business. The company also purchased land in

Maradu Village adjoining the Edappally Aroor Bye pass near

Vyttila in the year 2011. The company allegedly obtained

permission to start a four star hotel in the property having

built up area of 18250 sq.ft and the construction of the 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

hotel complex was started in the year 2018 and was also

completed. Due to paucity of funds, to start the business,

the defacto complainant and her husband Sri

Radhakrishnan Kandoth, who is an NRI, offered to invest

money in the company in the year 2018. Accordingly, the

defacto complainant through her husband invested about

11.53 crores. The prosecution allegation is that the 1 st

accused had resigned from the directorship of the company

on 16.09.2018 and having resigned from the directorship of

the company, he concealed that fact and induced the

defacto complainant and her husband to invest money as

per the MOU which was entered on 08.10.2018. The

circumstances being so, the 1st accused had the deceitful

intention to deceive the defacto complainant and her

husband from the very inception and despite his resignation

from the company, he had received the amount which was

transferred. It is also further contended that as early as on

01.11.2017, accused Nos.2 and 3, who are the wife of the

1st accused and his sister in law, were disqualified for their

illegal practices. Under the circumstances, all the three

accused entered into conspiracy to deceive the defacto 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

complainant and her husband and induced them to invest

huge amount of money. It is also submitted that the defacto

complainant was initially offered 31.26% of the shares of

the company but was actually given only 9.7% of the

shares. In the MOU also there was an understanding that

34% of the shares would be transferred into her name

which actually never acted upon. Later, the accused were

released on bail by imposing conditions as extracted above.

13. Therefore, the allegation against the accused are

serious and thereby this Court granted bail by imposing

stringent conditions, specifically with direction to the

accused persons to surrender their passports before the

Jurisdictional Court and shall not go abroad without

permission of the Court. Further, the accused persons were

directed to surrender their passports and in case they did

not have passports, they were directed to file affidavit to

that effect, as condition No.1.

14. In the instant case, at the time of granting bail by

this Court as per the common order dated 02.11.2020,

accused Nos.1 to 3 were having valid passports as could be

gathered from the passports they already surrendered 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

before the trial court. Therefore, the question of filing of

affidavits did not arise. But the question is whether there is

willful violation of condition No.1 of the order of this Court

by accused Nos.1 to 3?

15. It is not in dispute that, the 1 st accused

surrendered his passport in obedience of condition No.1 in

the bail order of this Court and subsequently got the same

released for the purpose of going for a short visit to Dubai

for business purose. But, accused Nos. 2 and 3 failed to

surrender their passports in obedience to condition No.1 in

the bail order. It is not in dispute further that, accued Nos.2

and 3 surrendered their passports only on getting notice in

C.M.P. No.2442/2022 filed on 01.06.2022, that is after a

period about 19 months.

16. In this scenario, the trial court found that,

irrespective of the direction of this Court as per

Annexure.A1 order dated 02.11.2022, accused Nos.2 and 3

did not surrender their passports nor they had filed any

affidavit stating that they do not have passports. Further,

the trial court observed that, in gross violation of condition

No.1, the 2nd accused went abroad without seeking 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

permission of the Court.

17. Inasmuch as, the involvement of accused Nos.1

to 3 in subsequent crime registered on 23.12.2021, the

same could not be found as a subsequent crime, since the

overt acts there were alleged to be committed in between

the period from 04.05.2019 to 04.11.2019, prior to grant of

bail in the present crime, as submitted by the learned

counsel for the accused.

18. However, this Court has to address the question

as to whether there is any willful violation of condition No.1

of the bail order passed by this Court in B.A. Nos. 6695 and

6714 of 2020 by accused Nos.1 to 3? Yet another question

arise for consideration is whether the learned Magistrate is

justified in canelling the bail of accused Nos.2 and 3, in a

petition filed under Section 439 (2) of Cr.P.C, which is meant

for the Sessions Courts and High Courts to cancel the bail?

19. Before addressing this question, it is relevant to

refer the law governing cancellation of bail. In the decision

in Sobhin Sunny v. State of Kerala reported in [2024

KHC OnLine 408], this Court after referring the decision of

the Apex Court in [2024 KHC OnLine 6302 : 2024 INSC 438 :

2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

2024 LiveLaw (SC) 392], Ajwar v. Waseem, held as under:

9. 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 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 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

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 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

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."

20. Thus the legal position is well settled. When a

Court grants bail after imposing conditions, violation of any

of the conditions in a bail order would lead to cancellation

of bail by invoking power under Section 437(5) of Cr.P.C. by

the Magistrate and under Section 439(2) of Cr.P.C by the

Sessions Court and the High Court.

21. Coming to the facts of this case, as submitted by

both sides, as per the bail order in B.A. Nos. 6695 and 6714

of 2020, this Court granted bail to accused Nos.1 to 3 by

imposing condition Nos.1 to 5 as extracted in paragraph No.

5 hereinabove. Indisputably condition No.1 imposed was

that, the accused should surrender their passport before

the jurisdictional court and should not go abroad without 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

permission of the court and in case they did not have

passports, they should file affidavits to that effect. The

specific allegation of the defacto complainant is that,

accused Nos.1 to 3 violated condition No.1 in the bail order.

As far as violation of bail condition No.1 by the 1 st accused

is concerned, the trial court found in the negative, while

holding that accused Nos.2 and 3 violated the said

condition. Accordingly, bail granted to accused Nos.2 and 3

was cancelled. It is discernible that, the 1 st accused

surrendered his passport in terms of the bail order and

thereafter as per Annexure.3 order dated 06.03.2021 in

C.M.P. No.422/2021, his passport was released for a short

visit to Dubai for business purpose, with specific direction to

surrender the passport on 28.03.2021 and the 1 st accused

should not take up employment/employment residence in

any foreign country without permission of the Court. Even

though, as pointed out by the learned counsel for the

defacto complainant, applying for residence/employment

visa and getting visa stamped for the said purpose for three

years could be seen from Annexure.A5 in Crl.M.C.

No.5631/2022 (page No.35), which would show that the 1 st 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

accused also violated condition No.5 of Annexure.3 order

dated 06.03.2021, the learned Magistrate was not inclined

to accept this contention and to cancel the bail granted to

the 1st accused.

22. On perusal of the impugned order, the 1 st

accused obeyed condition No.1 imposed by this Court and

surrendered his passport and thereafter got his passport

released for a short visit to Dubai by filing application

before the trial court and subsequently surrendered the

passport on 28.03.2021 itself as directed by the trial court,

even though visa in the form of residence/employment was

stamped for three years. Since the 1 st accused surrendered

his passport on 28.03.2021 and he has been available

within the jurisdiction of the trial court as of now, the

finding of the trial court that he did not willfully violate

condition No.5 in Annexure.3 order is only to be justified. In

fact, the 1st accused did not violate condition No.1 imposed

by this Court.

23. Coming to violation of condition No.1 by accused

Nos.2 and 3, even the learned counsel for accused Nos.2

and 3 could not deny the same, as evidently the passports 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

were surrendered after a period of 19 months, that too on

getting notice in the bail cancellation petition. No doubt, as

per the order dated 02.11.2020 in B.A. Nos.6695 and 6714

of 2020, accused Nos. 2 and 3 were bound to surrender

their passports before the jurisdictional court and should

not go abroad without permission of the Court and if they

did not have passport, they were bound to file affidavits to

that effect. However, in the instant case, accused Nos.2

and 3, who possessed valid passports did not surrender the

same when the passport of the 1st accused was surrendered

or within a reasonable time thereafter, in obedience to

condition No.1. In fact, they surrendered their passports

only on getting notice in C.M.P. No.2442/2022 filed on

01.06.2022. Thus, it is discernible that in between

02.11.2020 till 01.06.2022 for a long period of 19 months,

accused Nos.2 and 3 failed to surrender their passports.

Therefore, the allegation raised by the defacto complainant,

supported by the prosecution side that, accused Nos.2 and

3 violated condition No.1 in the matter of surrender of

passports is only to be justified. In addition to that, it is

discernible that, without surrendering the passport, the 2 nd 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

accused used the same and went abroad and thereby, the

second part of condition No.1 in the bail order also was

violated by the 2nd accused. According to the learned

counsel for the defacto complainant, there was attempt on

the part of the accused persons to negate the right of the

defacto complainant in the company, where she is having

34% of share, as evident from Annexure.R2(c), (d), (e) and

(f) in Crl.M.C. No.5639/2022. This aspect does not require

much discussion in this matter.

24. In the instant case, it is noticeable that accused

Nos.2 and 3 violated condition No.1 in the bail order of this

Court, without surrendering their passports and the 2 nd

accused went abroad and thereby violated the second part

of condition No.1 of the bail condition also. In such a case,

on meticulous analysis of the facts of the case, the learned

Magistrate cancelled the bail granted to accused Nos.2 and

3. The said finding is justifiable and no interference is called

for.

25. Since C.M.P. No.2442/2022 (the petition seeking

cancellation of bail) has been filed under Section 439(2) of

Cr.P.C, it is pointed out by the learned counsel for the 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

accused that the learned Magistrate is not empowered to

cancel the bail granted by the Sessions Court or the High

Court under Section 439(2) of Cr.P.C. and the said power is

available to only the Sessions Court and the High Court.

While addressing the question as to whether which is the

provision of law authorizes a Magistrate or a Court other

than the High Court or Sessions Court to cancel the bail

granted to an accused, Section 437(5) of Cr.P.C. permits any

Court other than the High Court or Court of Sessions, which

has released a person on bail under sub-section (1) of

Section 437 or sub-section (2), to do the said exercise. It

has been provided that, the Court other than the High Court

and Sessions Court may, if it considers it necessary so to

do, direct that such person be arrested and commit him to

custody. In fact, Section 439 of Cr.P.C. deals with special

powers of High Court or Court of Session regarding bail and

Section 439(2) of Cr.P.C. permits the High Court or Court of

Session to direct that any person who has been released on

bail be arrested and commit him to custody for valid

reasons.

26. In the instant case, as per the bail order of this 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

Court, it has been specifically provided that, in case of

violation of the bail conditions, the prosecution is at liberty

to move for cancellation of bail before the jurisdictional

court and accordingly the present application has been filed

before the Magistrate Court by the defacto complainant.

Therefore, the application, even though filed by quoting

Section 439(2) of Cr.P.C, the power exercised by the

Magistrate, in view of the specific delegation by this Court,

is to be reckoned as one under Section 437(5) read with

439(2) of Cr.P.C. Therefore, the challenge raised in this

count also would not yield anything in favour of the

accused.

27. Summarizing the discussion, it is held that

cancellation of bail granted to accused Nos.2 and 3 by the

learned Magistrate is justified by reasons and the same

does not require any interference by this Court.

28. Similar is the position as regards to the refusal of

the learned Magistrate to cancel the bail granted to the 1 st

accused. Therefore, confirming the order dated 10.08.2022

of the learned Magistrate in C.M.P. No.2442/2022 in C.C.

No.95/2022, both these Crl.M.Cs are liable to fail and 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

accordingly these petitions stand dismissed.

29. Interim order of stay granted in Crl.M.C. No.

5639/2022 in favour of accused Nos.2 and 3 in the matter

of their surrender before the trial court stands vacated, with

direction to accused Nos.2 and 3 to surrender before the

Magistrate Court, forthwith, at any rate, within a period of

seven days from today. On failure to surrender as directed

within seven days, learned Magistrate shall go for coercive

steps to obtain custody of accused Nos.2 and 3 through

process of law, without fail.

Registry shall forward a copy of this order to the trial

court for information and further steps.

Sd/-

A. BADHARUDEEN JUDGE SK 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

PETITIONER'S ANNEXURES :

ANNEXURE1 TRUE PHOTOCOPY OF THE COMMON ORDER DATED 02.11.2020 IN B.A.NOS.6695 & 6714 OF 2020

ANNEXURE2 CITIZEN COPY OF THE FIRST INFORMATION REPORT DATED 23.12.2021 IN CRIME NO. 1592/2021 OF ERNAKULAM TOWN SOUTH POLICE STATION

ANNEXURE3 TRUE PHOTOCOPY OF THE ORDER IN CMP NO.

422/2021 DATED 06.03.2021 PASSED BY THE JUDL.FIRST CLASS MAGISTRATE COURT-VIII, ERNAKULAM.

ANNEXURE4 TRUE PHOTOCOPY OF THE DOCUMENT DOWNLOADED FROM THE DUBAI EMIGRATION PORTAL

ANNEXURE5 TRUE PHOTO COPY OF THE RESIDENCE VISA ISSUED TO THE 2ND RESPONDENT BY THE UNITED ARAB EMIRATES DATED 17.03.2021

ANNEXURE6 TRUE PHOTO COPY OF THE ORDER DATED 01.04.2022 IN CMP NO. 1154/2022 PASSED BY THE JUDL. FIRST CLASS MAGISTRATE COURT-VIII, ERNAKULAM.

ANNEXURE7 CERTIFIED COPY OF THE ORDER DATED 10.08.2022 INCMP NO. 2442/2022 IN C.C NO. 95/2022 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-III, ERNAKULAM

RESPONDENT ANNEXURES :

ANNEXURE R2(A) TRUE COPY OF FINAL REPORT IN WHICH CRIME NO.

1592/2021 OF E.T.SOUTH POLICE STATION

PETITIONER ANNEXURES :

ANNEXURE 8 TRUE PHOTOCOPY OF THE VALUATION REPORT DATED 21.11.2024 PREPARED BY SRI.ALEX THOMAS

RESPONDENT ANNEXURES :

ANNEXURE R2(B) TRUE COPY OF THE VALUATION REPORT DATED 7/12/2024 PREPARED BY AJI JOHN 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

PETITIONER ANNEXURES

ANNEXURE A-1 TRUE COPY OF THE COMMON ORDER DATED 2.11.2020

ANNEXURE A-2 TRUE COPY OF THE RELEVANT PAGES OF THE FINAL REPORT DATED 28.10.2021

ANNEXURE A-3 TRUE COPY OF THE CMP NO.2442/2022 DATED 1.6.2022 IN CC 95/2022 BEFORE JFCM VIII ERNAKULAM

ANNEXURE A-4 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS TO ANN.A/3

ANNEXURE A-5 TRUE COPY OF THE ORDER DATED 10.8.2022 IN CMP NO.2442/2022 IN CC 95/2022 OF THE HON'BLE JFCM VIII, ERNAKULAM

ANNEXURE A-6 TRUE COPY OF THE MARRIAGE INVITATION CARD

RESPONDENT ANNEXURES :

ANNEXURE-R2(A) TRUE PHOTOCOPY OF THE COMMON ORDER DATED 02.11.2020 IN B.A.NOS. 6695 AND 6714 OF 2020

ANNEXURE-R2(B) TRUE PHOTOCOPY OF THE DOCUMENT DOWNLOADED FROM THE DUBAI EMIGRATION PORTAL

ANNEXURE-R2(C) TRUE PHOTOCOPY OF THE APPLICATION DATED 22.04.2021 SUBMITTED BY THE PETITIONERS TO THE CHIEF MANAGER, STATE BANK OF INDIA, VYTTILA BRANCH

ANNEXURE-R2(D) TRUE PHOTO COPY OF THE FORGED MINUTES DATED 02.02.2019

ANNEXURE-R2(E) TRUE PHOTO COPY OF THE FORGED MINUTES DATED 21.11.2019

ANNEXURE-R2(F) TRUE PHOTOCOPY OF THE ACTUAL MINUTES DATED 02.02.2019

ANNEXURE-R2(G) TRUE PHOTO COPY OF THE FORGED MEMORANDUM OF ASSOCIATION AND ARTICLES OF ASSOCIATION

ANNEXURE-R2(H) TRUE PHOTO COPY OF THE DEATH OF CERTIFICATE OF LATE THAMPI KRISHNA

ANNEXURE-R2(I) CITIZEN COPY OF THE FIRST INFORMATION REPORT 2025:KER:17607 Crl.M.C. Nos. 5631 & 5639 of 2022

DATED 23.12.2021 IN CRIME NO. 1592/2021 OF ERNAKULAM TOWN SOUTH POLICE STATION

PETITIONER ANNEXURES :