Hashique v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 CRL.MC NO. 4914 OF 2024 ``` ``` CRIME NO.1000/2023 OF Parappangadi Police Station, Malappuram AGAINST THE ORDER DATED 07.05.2024 IN CRL.M.APPL.NO.84/2024 IN SC NO.101 OF 2024 OF FAST TRACK SPECIAL COURT, PARAPPANANGADI ``` ``` (OFFENCE AGAINST WOMEN AND CHILDREN) PETITIONER/ACCUSED: ``` ``` HASHIQUE AGED 25 YEARS S/O HUSSAIN, KARUVATHIL HOUSE, BOOTHANAM (P.O), POTHUKALLU, CHUNGATHARA, NILAMBUR TALUK, MALAPPURAM DISTRICT, PIN – 679334. ``` ``` BY ADV K.DILIP ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. ``` ## **`SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.07.2024, THE COURT ON 26.07.2024 PASSED THE FOLLOWING: ``` Crl.M.C.No.4914/ 2024-D 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.M.C No.4914 of 2024-D_ ================================ _Dated this the 26[th] day of July, 2024_ ## _**O R D E R**_ This petition has been filed by the sole accused in Crime No.1000/2023 of Parappanangadi Police Station, Malappuram, challenging order in Crl.M.P.No.84/2024 in S.C.No.102/2024 on the files of the Special Court for the trial of Offences Against Women and Children, Parappanangadi, to set aside Annexure-7 order in the above case. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused Annexures-7 order. 3. In this matter, the prosecution alleges commission of offences punishable under Sections 354(D)(1) and 506 of the Indian Penal Code (`IPC’ for short) and Section 67B of the Information Technology Act, 2000 (`I.T Act’ for short) read with 12 Crl.M.C.No.4914/ 2024-D 3 and 11(iv) of the Protection of Children from Sexual Offences Act (`POCSO Act’ for short). In this matter, the accused was granted bail as per order in Crl.M.P.No.2002/2023 dated 27.10.2023 by imposing conditions as under: _“1. The petitioner/accused shall execute bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties for the like sum each._ _2. The petitioner/accused shall report before the Investigating Officer on all Thursday between 9.00 a.m and 11.00 a.m, till filing of the Final Report/Charge Sheet._ _3. The petitioner/accused shall surrender his passport before court or file affidavit, if he has no Passport._ _4. The petitioner/accused shall not tamper with evidence, or influence or intimidate victim or any other witnesses._ _5. The petitioner/accused shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Police Officer._ Crl.M.C.No.4914/ 2024-D 4 _6. The petitioner/accused shall not contact or attempt to contact the victim in any manner._ _7. The petitioner/accused shall not involve in any similar offence while on bail._ _8. The petitioner/accused shall not leave the State of Kerala without prior permission of the Court._ _9. The petitioner/accused shall co-operate with the investigation of the case._ _Violation of any of the aforesaid conditions would result in cancellation of the bail suo-motu or on application by the respondent."_ 4. While the petitioner has been continuing on bail in view of the above order, the mother of the victim gave a statement alleging that the accused, in violation of the bail conditions, sent messages to the defacto complainant and threatened the victim, her mother and close relatives pressurising them to withdraw the case against him. Accordingly, Crime No.20/2024 for the offences punishable under Section 506(1) of IPC and Section 120 of the Kerala Police Act was registered on 05.01.2024. At this juncture, Crl.M.C.No.4914/ 2024-D 5 the learned Public Prosecutor filed Crl.M.P.No.84/2024 to cancel the bail. The learned Special Judge considered the plea of the prosecution after considering the objection raised by the petitioner stating that he was implicated in a subsequent crime, without any materials. Thereafter, negating the objection, the learned Special Judge allowed the petition and thereby his bail was cancelled. 5. While assailing the above order of cancellation, the learned counsel for the petitioner submitted that the petitioner is innocent and Crime No.20/2024 was registered without any substance, so as to implicate the petitioner in another crime with a view to cancel the bail. He also would submit that the learned Special Judge cancelled the bail even without going through the records in Crime No.20/20 to find out whether the allegations are made out, _prima facie_ . 6. The learned Public Prosecutor would submit that the allegations in the second crime are well made out and as part of Crl.M.C.No.4914/ 2024-D 6 investigation, the learned Public Prosecutor collected the messages sent by the accused thereby threatening the victim, her mother and relatives to pressurise them to withdraw from Crime No.1000/2023. Therefore, cancellation of bail by the trial court is perfectly justified and, as such, the order of cancellation doesn’t require any interference. 7. In view of the submission made by the learned counsel for the petitioner that the Special Court did not go through the allegations in Crime No.20/2024, case diary as such in the said crime was called for and perused. On perusal of the same, it is emphatically clear that acting on the F.I.S given by the victim, Crime No.20/2024 was registered and thereafter as part of the investigation, the messages alleged to be sent by the accused threatening the victim, her mother and relatives with a view to pressurise them to withdraw from the prosecution in Crime No.1000/2023 alleging very serious offences, were recovered. The Crl.M.C.No.4914/ 2024-D 7 case diary in Crime No.20/2024 would show specifically that the allegations made therein are made out, _prima facie_ , with sufficient materials. 8. The power of the Court to cancel bail has been considered by this Court in paragraphs 8 to 11 of its decision reported in [2024 KHC OnLine 408], _**Sobhin Sunny v. State of Kerala**_ , as under: _“8. In so far as the legal question as to whether what are the contingencies under 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_ Crl.M.C.No.4914/ 2024-D 8 _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;_ _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_ Crl.M.C.No.4914/ 2024-D 9 _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 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_ Crl.M.C.No.4914/ 2024-D 10 _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 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_ Crl.M.C.No.4914/ 2024-D 11 _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_ Crl.M.C.No.4914/ 2024-D 12 _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 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_ Crl.M.C.No.4914/ 2024-D 13 _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 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.”_ _9. Recently, in the decision reported in 2024 KHC OnLine_ Crl.M.C.No.4914/ 2024-D 14 _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 decisions, for cancelling bail once granted, the court must consider_ Crl.M.C.No.4914/ 2024-D 15 _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_ Crl.M.C.No.4914/ 2024-D 16 _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.”_ _10. 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 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. "_ _11. In fact the case dealt with by the High Court in_ _**Moideen Kunji** ’s case (supra) is different from the case at hand. That is to say, in_ _**Moideen Kunji** ’s case (supra), this Court cancelled bail earlier granted in crime stage, after change in the Investigating Agency and after grant of regular bail by the Special Court in substitution of the bail order granted during crime stage. Therefore, in the said case, the accused is bound_ Crl.M.C.No.4914/ 2024-D 17 _by the terms of the subsequent bail order and not the bail order during crime stage, which, in fact, came to an end in view of the subsequent order of bail. Per contra, in the instant case, the petitioner has been continuing in the bail granted by the Special Court and, therefore, he is bound to obey the conditions, to continue on bail granted without fail. If he violates any conditions imposed in the bail order, that is akin to misuse of the liberty bestowed by the court and the same is a ground for cancellation of bail.”_ 9. Here, evidently as borne out from the records and found by the learned Special Judge, the petitioner while continuing on bail in Crime No.1000/2023 of Parappanangadi Police Station, involved in Crime No.20/2024 of the same Police Station and thereby he violated condition Nos.4 to 6 of Annexure-2 order warranting cancellation of bail. Thus it is held that Annexure-7 order passed by the Special Judge finding that the petitioner had willfully violated condition Nos.4 to 6 of Annexure-2 order, doesn’t require any interference. 10. Therefore, this petition is dismissed with direction to the Crl.M.C.No.4914/ 2024-D 18 petitioner to surrender before the Special Court forthwith, or else, the Special Court is directed to go for coercive steps to arrest and detain the petitioner in custody, in view of cancellation of bail, without fail. 11. Interim order, if any, stands vacated. Registry is directed to forward a copy of this order to the Special Court forthwith for information and further action. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_