Abdul Lathif @ Shokkari Lathif v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **FRIDAY, THE 10[TH] DAY OF FEBRUARY 2023 / 21ST MAGHA, 1944** ## **CRL.MC NO. 6677 OF 2022** ## **PETITIONER:** ABDUL LATHIF @ SHOKKARI LATHIF AGED 37 YEARS S/O. ABBAS HAJI, RESIDING AT LATHEEF MAHAL, UPPALA, MULINJA VILLAGE, MANJESHWAR TALUK, KASARAGOD DISTRICT., PIN - 671322 BY ADVS. T.B.SHAJIMON GOVINDU P.RENUKADEVI ## **RESPONDENT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31., PIN - 682031 ## **OTHER PRESENT:** PP M.C.ASHI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.02.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C. 6677/2022 2 ## **ORDER** Dated this the 10[th] day of February, 2023 The petitioner is the accused in S.C. No. 10 of 2022 on the files of the Sessions Court, Kasargod which arose out of Crime No. 17 of 2021 registered by the Excise Enforcement and Anti Narcotic Special Squad for the offence under Sections 20(b)(ii)(B), 22(a) and 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short). In that crime, the petitioner was enlarged on bail by the Sessions Court on 31.12.2021 subject to certain conditions. One of the conditions was that the petitioner should not commit any offence while on bail. The petitioner was later arrested on 11.03.2022 in connection with Crime No. 5 of 2022 registered by the Excise Enforcement and Anti Narcotic Special Squad, Kasargod, this time for the offences under Sections 22(b), 27(a) and 29 of the NDPS Act. Consequently the petitioner was remanded to judicial custody Crl.M.C. 6677/2022 3 again. On registration of the second crime, the Public Prosecutor moved an application under Section 439(2) Cr.P.C. seeking cancellation of bail in the first case for violation of the condition which required him not to commit any offence while on bail. Based on the petition, the Sessions Court cancelled petitioner's bail as per Annexure A1 order. Hence, this Crl.M.C. 2. Learned Counsel for the petitioner contended that the alleged involvement in a subsequent crime cannot lead to automatic cancellation of the bail granted in the earlier crime, even if there is a condition that the accused should not commit any crime while on bail. It is submitted that the investigation in the first crime (Crime No.17/2021) was completed and the matter was pending before the Sessions Court as S.C. No. 10 of 2022. When the application for cancellation of bail was moved, the learned Sessions Judge, without considering the above fact or the allegations based on which the petitioner is implicated in the subsequent crime, mechanically cancelled the bail. Reliance is placed on the Crl.M.C. 6677/2022 4 decision on **Godson & Anr.** v. **State of Kerala** (2022 (2) KLD 447) to contend that, order of cancellation of bail being an action affecting the personal liberty of a person guaranteed under Article 21 of the Constitution of India, bail cannot be cancelled in the absence of reasons justifying such an order. It was also held that involvement of the accused in a subsequent crime alone cannot be a reason to cancel the bail, unless it is shown that the involvement of the accused in the subsequent crime is affecting the trial of the earlier case. Reference is also made to the decision in **XI, Victim SC No.211 of 2018 of POCSO Court** v. **State of Kerala & Ors** . (2019 (3) KHC 26) wherein it is held that while considering the prayer for cancellation of bail, the bail court cannot evade from the responsibility of making a summary enquiry, as to the truth or otherwise of the allegations, based on the specious plea that those allegations form subject matter of distinct crime. The general principles to be followed while cancelling the bail is submitted with the aid of **X** v. **State of Telangana and Anr.** [(2018) 16 SCC 511] and **P.** Crl.M.C. 6677/2022 5 v. **State of Madhya Pradesh & Anr.** (2022 SCC OnLine SC 552). 3. Learned Public Prosecutor contended that, when an accused is granted liberty subject to certain conditions, he is bound to strictly abide by the conditions. If he misuses that liberty and commits another crime, that, by itself, is sufficient reason to cancel the bail. This aspect is laid down by the Supreme Court in **P** (supra) and has been followed by this Court in **Sreeja Mannangath** v. **State of Kerala** (2022 (6) KLT OnLine 1129). 4. There being no dispute to the fact that the petitioner was arrayed as an accused in a crime, subsequent to his release on bail in the first crime, the only question to be considered is whether involvement in the subsequent crime can result in automatic cancellation of the petitioner's bail. In **X** (supra) the bail granted by the High Court to the accused in a crime alleging commission of the offence under Section 376, was cancelled by the Sessions Court for failure of the accused to disclose the pendency of prosecution Crl.M.C. 6677/2022 6 against him in the 2G Spectrum case. Setting aside the order of cancellation, the Apex Court held that the second FIR is not a supervening circumstance of such a nature as would warrant cancellation of the bail. For holding so, the Apex Court found that no cogent material to indicate that the accused has been guilty of conduct which would warrant his being deprived of his liberty was made out. This Court in **Godson** (supra) also held that involvement in a second crime alone cannot be a reason to cancel the bail, unless it is shown that such involvement is affecting the trial of the earlier case. Recently, in **P** (supra), the Supreme Court enumerated some of the circumstances where bail granted to the accused under Section 439(1) of the Cr.P.C. can be cancelled. One such circumstance is misuse of liberty by the accused, by indulging in similar/other criminal activity. It is pertinent to note the following observations of the Apex Court in the same decision. “25. As can be discerned from the above decisions, for cancelling bail once granted, the Court must consider whether any supervening circumstances have arisen or theconduct of the Crl.M.C. 6677/2022 7 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. To put it differently, in ordinary circumstances, this Court would be loath 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. Some of the circumstances where bail granted to the accused under Section 439(1) of the Cr.P.C. can be cancelled are enumerated below:— 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 naturer and not exhaustive.” Crl.M.C. 6677/2022 8 Following the decision in **P** (supra), this Court in **Sreeja Mannangath** (supra) and **Jeby James** v. **State of Kerala** (2023 KLT OnLine 1088) held involvement in subsequent crime to be a valid ground for cancellation of bail. 5. No doubt, involvement of an accused on bail in another crime is a supervening circumstance that would justify cancellation of bail. To reiterate, the question here is whether such cancellation is automatic or can be done in a mechanical manner. In my opinion, the answer to that question can only be in the negative. While deciding bail applications, the court has to always keep in mind the fundamental principle that bail is the rule and jail, the exception. Yet another pertinent aspect is that by cancelling the bail, a person is being deprived of the liberty granted to him after considering all relevant aspects. Therefore, very cogent and overwhelming circumstances are necessary for cancellation of bail once granted and there cannot be a mechanical cancellation of the bail. In this context, I find the following observations in **XI, Victim SC No.211 of 2018 of** Crl.M.C. 6677/2022 9 ## **POCSO Court** (supra) to be very pertinent. “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.P-5, 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 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 abovesaid allegations has not been established in a convincing manner in such enquiry process, then Crl.M.C. 6677/2022 10 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.” Therefore, even in a case where the accused has committed a crime while on bail, the court has to consider whether crime is of such grave nature that it amounts to a supervening circumstance warranting cancellation of bail. For that, there has to be a preliminary assessment of the allegations with respect to the subsequent crime. 6. In the instant case, the learned Sessions Judge did not enter into any such exercise and proceeded to cancel the bail mechanically, as revealed from paragraph 7 of Annexure A1 order extracted hereunder; “The accused is involved in another crime after he is released on bail in this case, it is clear violation of the order passed by the court in CMP No. 3282/2021. So the petitioner is not entitled to enjoy the freedom. Hence the bail granted to the accused as per order in CMP 3282/2021 in S.C No.10/2022 is hereby cancelled.” Crl.M.C. 6677/2022 11 For the reasons aforementioned, the Crl.M.C. is allowed, the impugned order set aside and the Sessions court directed to reconsider C.M.P. No. 2072 of 2022 in S.C. No. 10 of 2022 and pass a fresh reasoned order, taking into account the observations herein. The impugned order having been set aside, the petitioner has to be enlarged on bail. However, in view of petitioner's involvement in the second crime, the bail bond is being increased and the following order issued; The petitioner shall be enlarged on bail on executing a personal bond for Rs.2,00,000/- (Rupees Two Lakhs only). The above direction is in addition to the conditions imposed in the original order granting bail. Sd/- **V.G.ARUN JUDGE** sb Crl.M.C. 6677/2022 12 ## **APPENDIX OF CRL.MC 6677/2022** PETITIONER ANNEXURES Annexure A1 CERTIFIED FREE COPY OF THE ORDER DATED 06.07.2022 IN CMP NO: 2072/2022 IN SC NO: 10/2022 OF THE COURT OF SESSION, KASARAGOD