Kerala High Court
Shamnad vs State Of Kerala on 26 May, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.M.C.No.2297/2025
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2025:KER:38392
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947
CRL.MC NO. 2297 OF 2025
AGAINST THE ORDER/JUDGMENT DATED IN CRMP NO.5363 OF
2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII,
ERNAKULAM/ III ADDITIONAL MACT, ERNAKULAM.
PETITIONER:
SHAMNAD
AGED 32 YEARS
S/O SHAHUL HAMEED, THANNITHURAKAL HOUSE,
PALAPETTY KARA, VELIYANGODE VILLAGE, PONNANI
TALUK, MALAPPURAM DISTRICT., PIN - 679579
BY ADVS.
SHRI.K.S.MADHUSOODANAN
SRI.M.M.VINOD KUMAR
SRI.P.K.RAKESH KUMAR
SRI.K.S.MIZVER
SHRI.M.J.KIRANKUMAR
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RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM., PIN - 682031
2 STATION HOUSE OFFICER
VADAKKEKAD PS, ANDATHODE PO,
THRISSUR CITY,KERALA, PIN - 679564
OTHER PRESENT:
SRI. M.C. ASHI, PP.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 20.05.2025, THE COURT ON 26.05.2025 PASSED THE
FOLLOWING:-
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V.G.ARUN, J
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Crl.M.C.No.2297 of 2025
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Dated this the 26th day of May, 2025
ORDER
The petitioner is the 4th accused in S.C.No.35 of 2022
pending on the files of the Additional Sessions Court-VII,
Ernakulam. The case originated from Crime No.33 of 2020
registered by the Anti Terrorist Squad for offences punishable
under Sections 120B, 171, 201, 419, 447, 450, 465, 471 and
395 IPC. The crime was registered on the allegation that,
based on a conspiracy hatched by the accused, they came to the
house of the de facto complainant, at about 01.30 pm on
19.08.2016 and claiming to be officers of the Vigilance
Department, committed robbery of 55 sovereigns of gold
ornaments, Rs.25,000/-, mobile tabs and mobile phones, under
the guise of conducting search and seizure.
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2. The petitioner was arrested in connection with the
crime on 25.08.2016 and granted bail on 14.12.2016, subject to
conditions. Alleging that the petitioner had violated the bail
conditions, prosecution moved the jurisdictional court and got
his bail cancelled as per order dated 09.01.2019.
Consequently, the petitioner was arrested and remanded to
custody on 09.04.2021. After dismissing the repeated
applications for bail submitted by the petitioner, he was finally
granted bail as per Annexure-A1 order dated 07.01.2022,
subject to the following conditions;
"(1) Petitioner shall be released on bail on executing a bond for
Rs 2,00,000/- with two solvent sureties for the like sum.
(2) Petitioner shall surrender his passport, if any, before the
court within 7 seven days of his release and if he does not have
any passport he shall file an affidavit to that effect within the
aforesaid period.
(3) Petitioner shall not leave the State of Kerala without prior
permission of the court.
(4) Petitioner shall not contact the witnesses in any manner and
shall refrain from influencing or intimidating them.
(5) Petitioner shall appear before the court invariably on all
posting dates in order to procure his presence during trial.
(6) If the petitioner wants to have exemption from appearance on
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any particular date he shall obtain prior permission of the court
before the actual posting date."
3. As the petitioner failed to appear in court after being
enlarged on bail, he was initially issued with bailable warrants,
followed by non-bailable warrants. The police thereupon
reported that the warrants could not be executed as the
petitioner had left the State. While so, the petitioner was
arrested from Uttar Pradesh on 20.12.2024 in connection with
Crime No.821 of 2023 registered at the Vadakkekad Police
Station for offences under Sections 143, 147, 148, 341, 323,
324, 326, 307, 294(b), 506 and 149. The petitioner having
violated the conditions in the bail order by leaving the State
without prior permission and failing to appear in court on the
posting dates, the prosecution moved an application for
cancelling his bail. By the impugned Annexure-A2 order, the
bail granted to the petitioner as per Annexure-A1, was
cancelled. Hence, this Crl.M.C.
4. Assailing the order of cancellation, Adv.K.S.
Madhusoodanan put forth the following contentions;
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Consideration of applications for grant of bail and
cancellation of bail stands on different footing. Cogent and
overwhelming grounds are required to cancel the bail already
granted. To buttress the contention, the decisions in CBI,
Hyderabad v. Subramani Gopalakrishnan and Another
[2011 KHC 4432] and X v. State of Telangana and Another
[2018 KHC 6439] are pressed into service. There is no
provision for cancellation of bail in the Code of Criminal
Procedure or the Bharatiya Nagarik Suraksha Sanhita, 2023.
In fact Section 480(5) of BNSS, which is pari materia to Section
439(2) of Cr.P.C, provides only for arrest and committal to
custody of the person released on bail. This would indicate that
bail cannot be cancelled for the mere asking and the liberty
being enjoyed by the accused can be taken away only after
hearing him and on being convinced that there are cogent and
overwhelming reasons for arresting the accused and
committing him to custody.
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5. It is then submitted that the petitioner was compelled
to leave the State after being falsely implicated in Crime
No.821 of 2023 registered at the Vadakkekad Police Station and
on coming to know about the issuance of non-bailable warrant
in the subject crime, the petitioner had moved an application
for recalling the warrant, which the learned Sessions Judge
dismissed illegally.
6. Adv.M.C.Ashi, the learned Public Prosecutor
submitted that the court below having shown leniency by
granting bail for the second time, in spite of having cancelled
the earlier bail for violation of conditions, petitioner should
have been extra cautious. Instead, the petitioner committed
another heinous crime and violated the bail condition by
leaving the State without permission. By such action, the
petitioner has demonstrated that he has scant respect for
courts and rule of law. In P v. State of Madhya Pradesh [2022
KHC 6496], the Supreme Court has held misuse of liberty, by
violating bail condition, as sufficient ground for cancellation of
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bail. The petitioner is a notorious criminal involved in almost
30 other crimes and, if allowed to roam free, will be a menace
to the society.
7. The legal position that consideration for grant of bail
and its cancellation are entirely different, and bail can be
cancelled only for cogent reasons, needs no reiteration in view
of the law declared by the Apex Court through various
decisions including Dolat Ram and Others v. State of
Haryana [(1995) 1 SCC 349], CBI, Hyderabad (supra) and X
v. State of Telangana and Another (supra) etc. It is also the
settled position that before cancellation of bail, the accused
should be given notice (see Gurudev Singh v. State of Bihar
[(2005) 13 SCC 286]).
8. Bail once granted can normally be cancelled only if
there is interference or attempt to meddle with the
administration of justice, abuse of the concession of bail or
when the bail order is found to be perverse and based on
irrelevant considerations. As contended by the learned Public
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Prosecutor, misuse of liberty, by the accused indulging in
similar/other criminal activity, is one among the circumstances
justifying cancellation of bail enumerated in P. v. State of
Madhya Pradesh (supra). In the case at hand, bail granted to
the petitioner was once cancelled for violation of the conditions.
Even thereafter, indulgence was shown by again granting bail
to the petitioner. Once again the petitioner violated the bail
conditions by leaving the State without permission and failing
to appear in court on the posting dates. Not only that, the
petitioner got involved in another heinous crime. The above
conduct of the petitioner is nothing but misuse of the liberty
granted and disregard to the rule of law.
9. The contention that Section 480(5) of the BNSS or
439(2) of Cr.PC does not provide for cancellation of bail, cannot
be countenanced since the provision is intended to empower
the court to cancel bail in appropriate cases, although the
words "cancellation of bail" is not used in the provision.
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10. No doubt, mere violation of bail condition cannot
automatically result in its cancellation and the courts are
expected to make a prima facie enquiry into the allegations
with respect to the second crime by scanning the documents.
Here, the factual position is different since the violation is not
about the commission of second crime alone, but for having
left the State without permission and being absent in court on
the posting dates.
For the aforementioned reasons, the Crl.M.C. is
dismissed.
sd/-
V.G.ARUN, JUDGE
sj
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PETITIONER ANNEXURES
Annexure-A1 TRUE PHOTOCOPY OF THE ORDER OF ADDL.
DISTRICT JUDGE - VII ,ERNAKULAM IN
CRL.M.C.NO.2528/2021,DATED 7.01.2022
Annexure-A2 TRUE CERTIFIED COPY OF THE COMMON ORDER
IN CRL.M.P.NO.5363/2024 & CRL.M.P.NO.
358/2025 ON THE FILE OF ADDL. DISTRICT
& SESSIONS JUDGE- VII ,ERNAKULAM,DATED
11.02.2025
Annexure A3 A TRUE COPY OF THE SAID BAIL ORDER
DATED 28.03.2025
