Binu @ Puthalam Binu @ Jim Binu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 1[ST] DAY OF FEBRUARY 2023 / 12TH MAGHA, 1944 CRL.MC NO. 9681 OF 2022** **AGAINST THE ORDER IN CRL.M.P.1504/2022 IN CRMC 2550/2020 OF SPECIAL JUDGE (SESSIONS COURT) FOR TRIAL OF SC/ST CASES, UNDER SC/ST (POA) ACT, TVM** ## **PETITIONER/1st ACCUSED:** BINU @ PUTHALAM BINU @ JIM BINU AGED 35 YEARS, S/O SASIDHARAN, PUTHEN VILAKATHU KIZHAKKARIKU VEEDU, PUTHALAM, KOTTUKAL VILLAGE, THIRUVANANTHAPURAM, PIN – 695501. BY ADV SASTHAMANGALAM S. AJITHKUMAR ## **RESPONDENT/COMPLAINANT:** THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. PUBLIC PROSECUTOR SRI.G.SUDHEER THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.01.2023, THE COURT ON 01.02.2023 PASSED THE FOLLOWING: Crl.M.C.No.9681 of 2022 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.M.C No.9681 of 2022_ ================================ _Dated this the 1[st] day of February, 2023_ ## _**O R D E R**_ This petition has been filed challenging order in Crl.M.P.No.1504/2022 in CRMC.No.2550/2020 on the files of the Special Court (Sessions Court) for the trial of cases under SC/ST(POA) Act, Thiruvananthapuram. The petitioner is the petitioner in the above petition as well as 1[st] accused in Crime No.2551/2020 of Neyyattinkara Police Station. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. Brief facts necessary for decision of this petition are as under: Crl.M.C.No.9681 of 2022 3 The petitioner herein is the 2[nd] accused in Crime No.2551/2020 of Neyyattinkara Police Station where prosecution alleges commission of offences punishable under Sections 341, 427, 324, 326, 308, 120 (B) & 34 of Indian Penal Code. The allegation in the said case was that the 1[st] accused along with 2[nd] and 3[rd] accused, who are rent based goondas (mercenaries) along with 2 other accused, wrongfully restrained the defacto complainant at 5.45 p.m on 07.09.2020 at Kuruvikkala junction in Athiyannoor village when the defacto complainant reached there along with milk in his scooter bearing Reg.No.KL.01.J.8902. The further allegation was that the accused had brutally manhandled the defacto complainant with intention to do away him. On this premise, the prosecution alleges commission of the above offences. 4. When the 2[nd] accused was arrested and detained, he moved an application for bail before the Sessions Court and as per order dated 4.01.2021 in Crl.M.C.No.2550/2020, the learned Crl.M.C.No.9681 of 2022 4 Sessions Judge released the petitioner on bail by imposing conditions and one among the conditions was that “the 2[nd] accused shall not involve in any other offences while on bail”. 5. However, while on bail, the accused got involved in Crime No.330/2022 of Kanjiramkulam Police Station, where the prosecution alleges commission of offences punishable under Sections 294(B), 323, 324 and 308 r/w 34 of IPC and also in Crime No.331/2022 of Kanjiramkulam Police Station where the prosecution alleges commission of offences punishable under Sections 294(b), 323, 324, 506, 341, 307 r/w 34 of IPC. 6. Highlighting the involvement of the petitioner herein in subsequent 2 crimes, the prosecution had filed Crl.M.P.No.1504/2022 in Crl.M.C.No.2550/2020, to cancel the bail for violation of bail conditions. 7. The petitioner herein filed objection in the above petition contending that in the subsequent 2 crimes, he was falsely Crl.M.C.No.9681 of 2022 5 implicated and the same were registered with ill motives. Further, no exceptional or cogent reasons were otherwise highlighted for cancelling bail as if the bail cannot be cancelled. Decision of this Court reported in [2022 (2) KLT 447], _**Godson v. State of Kerala**_ also highlighted to buttress the point that subsequent involvement in a crime is not a reason to cancel the bail. 8. The learned Special Judge, after finding that the petitioner had involved in Crime Nos.330/2022 and 331/20222 of Kanjiramkulam Police Station, after relying on a 3 Bench 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**_ , cancelled the bail. 9. Now the petitioner has been continuing on bail, since implementation of the bail cancellation order has been stayed by this Court. Crl.M.C.No.9681 of 2022 6 10. While challenging the veracity of the order impugned, the learned counsel for the petitioner submitted that mere involvement of the accused in subsequent crime/crimes by itself is not a reason to cancel the bail and the learned Special Judge should have perused the case diary and reached the conclusion that there was involvement of the accused in the above crime/crimes. In view of this contention, this Court called for the case diaries in the present case, viz., Crime No.2551/2020 of Neyyattinkara Police Station and Crime Nos.330/2022 and 331/2022 of Kanjiramkulam police station. In Crime No.330/2022, the specific allegation is that accused 2 and 3, who have been continuously involving in goonda activities, with intention to do away the defacto complainant wrongfully restrained the defacto complainant when the defacto complainant was near the house of Pooja, Kuzhivilakkonam in Kottukal village at 5.30 p.m on 23.04.2022. The further allegation is that accused 1 to 3 reached there in an autorickshaw. Thereafter, Crl.M.C.No.9681 of 2022 7 the 1[st] accused beat on the abdomen of the defacto complainant by using his hands. Thereafter, the 2[nd] accused caught hold on the neck of the defacto complainant and the 3[rd] accused restrained the hands of the defacto complainant. Thereafter, the 1[st] accused attempted to beat on the head of the defacto complainant by using a spade and the same caused injury on the nose and right eye of the defacto complainant. Thus the prosecution alleges that accused 1 to 3 attempted to do away with the defacto complainant and the 1[st] accused in the above crime is the petitioner herein. Coming to crime No.331/2022, there is specific allegation that the 1[st] accused beat on the face of the relative of the defacto complainant and caused injuries. Thus it appears that the prime accused in subsequent crimes, viz. Crime No.330/2022 and 331/2022 of Kanjiramkulam Police Station is none other than the petitioner. 11. In so far as the contention raised by the learned counsel for the petitioner to the effect that involvement in a subsequent Crl.M.C.No.9681 of 2022 8 crime is not a reason to cancel the bail, relying on the decision in _**Godson**_ 's case ( _supra_ ), it is relevant to refer a 3 Bench decision of the Apex Court reported in _**P. v. State of Madhya Pradesh and Another**_ (supra), relied on by the Special Judge where in the Apex Court held that if the accused misuses his liberty by indulging in similar/other criminal activity, the same is a reason to cancel the bail granted to the accused, by invoking powers under Section 439(1) of Cr.P.C. 12. In so far as the ratio in _**Godson**_ 's case ( _supra_ ) is concerned this Court considered the same in the decision reported in [2022 (6) KLT OnLine 1129], _**Sreeja Mannangath v. State of Kerala**_ , considered the impact of the legal question exhaustively and finally following the ratio in _**P. v. State of Madhya Pradesh & anr.**_ 's case (supra) held that misuse of liberty by the accused is a reason for cancellation of the bail and the said ratio shall be the binding precedent. The ratio in _**Godson & Ors. v. State of Kerala's**_ Crl.M.C.No.9681 of 2022 9 _**case**_ ( _supra_ ), which would run against _**P. v. State of Madhya Pradesh & anr.**_ 's case ( _supra_ ), has been distinguished by this Court. The relevant paragraphs of the above order is as under: _“In the latest decision of the Apex Court reported in [2022 KHC 6496]: [2022 (2) KLD 49] : [2022 Bail Appl. No.3513/2022 8 / 21 Crl.M.A.No.3 of 2022 IN B.A.No.3513 of 2022 -:7:- 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 Section 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_ Crl.M.C.No.9681 of 2022 10 _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:_ Crl.M.C.No.9681 of 2022 11 _""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_ Crl.M.C.No.9681 of 2022 12 _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 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."_ Crl.M.C.No.9681 of 2022 13 13. In the case on hand, the overt act at the instance of the petitioner in this case and in Crime No.330/2022 and 331/2022 of Kanjiramkulam Police Station as prime accused can be gathered, _prima facie_ and, therefore, following the ratio in _**P. v. State of Madhya Pradesh**_ , cancellation of the bail granted to the petitioner by the learned Special Judge is well within the power of a court and therefore, the said order does not require any interference. Accordingly, the Crl.M.C fails and is dismissed. There shall be a direction to the petitioner to surrender before the Neyyattinkara Police Station within a period 3 days from today. Failing to do so, the police is directed to arrest and produce the petitioner before the jurisdictional court, since his bail was already cancelled. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ Crl.M.C.No.9681 of 2022 14 ## **APPENDIX OF CRL.MC 9681/2022** PETITIONER'S ANNEXURES Annexure1 THE CERTIFIED COPY OF THE ORDER IN CRL. M.P 1504/2022 IN CRL.M.C 2550/2020 DATED 05/12/2022 THE SPECIAL JUDGE(SESSIONS JUDGE) SPECIAL COURT FOR THE TRIAL OF CASES, UNDER SC/ST(POA) ACT, THIRUVANANTHAPURAM.