Manikandan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946 ``` ``` CRL.MC NO. 3982 OF 2022 ``` ``` CRIME NO.544/2020 OF Marayur Police Station, Idukki AGAINST THE ORDER DATED 10.06.2022 IN CRMP NO.189 OF 2021 OF SPECIAL COURT UNDER POCSO ACT, IDUKKI ``` ## **`PETITIONER/RESPONDENT/1ST ACCUSED:`** ``` MANIKANDAN, AGED 20 YEARS S/O SASI, MGP X/222, MELADY KARA, MARAYOOR, DEVIKULAM TALUK, IDUKKI, PIN – 685620. ``` ``` BY ADVS. GEORGE MATHEW PRAVEEN S. M.D.SASIKUMARAN ELSA DENNY PINDIS SUNIL KUMAR A.G MATHEW K.T. GEORGE K.V. STEPHY K REGI ``` ## **`RESPONDENTS/PETITIONER/STATE & COMPLAINANT:`** - **`1 STATE OF KRERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031.`** - **`2 THE STATION HOUSE OFFICER MARAYOOR POLICE STATION, IDUKKI DISTRICT, PIN – 685620.`** - **`3 VISWANATH, AGED 22 YEARS, S/O. ESWARAN, PERUMAL SUNDRAM ILLAM, MEALADY BHAGAM, MARAYOOR, IDUKKI DISTRICT – 685 520. (ADDL.R3 IS IMPLEADED AS PER ORDER DT.14.03.2024 IN CRL.M.A.1/2024 IN CRL.M.C.3982/2022)`** ``` FOR DEFACTO COMPLAINANT NO APPEARANCE SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ``` ``` 22.05.2024, THE COURT ON 03.06.2024 PASSED THE FOLLOWING: ``` Crl.M.C.No.3982/2022-G 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _Crl.M.C No.3982 of 2022-G_ _================================ Dated this the 3rd day of June, 2024_ ## _**O R D E R**_ This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (`Cr.P.C’ for short) by the 1st accused and the prayer in this petition is to quash Annexure-A5 order dated 10.06.2022 in Crl.M.P.No.189/2022 in Crl.M.C.No.1134/2020 in S.C.No.321/2021 on the files of the Fast Track Special Court, Idukki in Crime No.544/2020 of Marayur Police Station, Idukki. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor in detail. Perused the records. Crl.M.C.No.3982/2022-G 3 3. The learned counsel for the petitioner argued at length to unsustain Annexure-A5 order, whereby the learned Special Judge cancelled the regular bail granted to the petitioner as per Annexure-A1 order dated 14.12.2000 in Crl.M.C.No.1134 of 2020, on the ground that he had involved in another crime, ie. Crime No.151/2022, in gross violation of condition No.(d) imposed therein. According to the learned counsel for the petitioner, at the time of admitting this Crl.M.C, as per interim order dated 23.06.2022, the petitioner was granted interim bail and has been continuing on the same. Therefore, interim order may be allowed to be continued by setting aside Annexure-A5 order. He also submitted that the petitioner did not violate the conditions. 4. Whereas the learned Public Prosecutor zealously argued that Annexure-A5 order is perfectly justified in a case where the petitioner, who was granted bail by imposing condition that he should not involve in any offence during the currency of the bail, involved in another crime and thereby for violation of the said Crl.M.C.No.3982/2022-G 4 condition, Annexure-A1 order was cancelled and in such a case, Annexure-A5 order doesn’t require any interference. 5. Law regarding cancellation of bail 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 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;_ Crl.M.C.No.3982/2022-G 5 _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 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_ Crl.M.C.No.3982/2022-G 6 _(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 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_ Crl.M.C.No.3982/2022-G 7 _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 circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the_ Crl.M.C.No.3982/2022-G 8 _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 expected to discharge its solemn duty and function to decide on the correctness or otherwise of the allegations in such a summary_ Crl.M.C.No.3982/2022-G 9 _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 fact, the judgment in_ _**Dataram Singh** 's case (supra) was rendered by a two Bench of the Apex_ Crl.M.C.No.3982/2022-G 10 _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.”_ 6. 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 Crl.M.C.No.3982/2022-G 11 ## 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 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_ Crl.M.C.No.3982/2022-G 12 _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 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.”_ 7. 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) Crl.M.C.No.3982/2022-G 13 ## 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. "_ 8. 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. According to the learned counsel for the petitioner, at the time of admitting this Crl.M.C, as per an interim order, the petitioner was granted interim bail and has been continuing on the same. Therefore, interim order may be allowed to be continued by Crl.M.C.No.3982/2022-G 14 setting aside Annexure-A4 order. 10. Whereas the learned Public Prosecutor zealously argued that Annexure-A5 order is perfectly justified in a case where the petitioner, who was granted bail by imposing a condition that he should not involve in any other offence during the currency of bail, involved in another crime and thereby for violation of the condition of the bail order, the bail order was cancelled and the said order doesn’t require any interference. 11. Here the petitioner was granted bail in Crime No.544/2020 of Marayur Police Station now pending as S.C.No.321/2021 of the Fast Track Special Court, Idukki, where the offences alleged against the petitioner are punishable under Sections 363, 366 A, 370, 376 r/w Section 34 of Indian Penal Code (`IPC’ for short) and under Section 3 r/w Sections 4 and 11(iv) of PoCSO Act, 2012 and under Section 3(2)(v) and 3(2)Va of SC/ST Crl.M.C.No.3982/2022-G 15 (POA) Act, which led to the registration of crime giving rise to the Session Case No.321/2021, where he was released on bail with a condition that he shall not involve in any other offence. But during the currency of bail, he had involved in another crime, punishable under Sections 294(b), 341, 323, 506(ii) r/w 34 of I.P.C along with three others. Thus the trial court found that the petitioner willfully violated the condition imposed in Annexure-A1 order and accordingly the bail was cancelled. Since violation of the condition and involvement in subsequent crime is nothing but misuse of the liberty bestowed by the Court and the same is a ground for cancellation of bail, the learned Special Judge is right in cancelling the bail on the said ground. 12. In view of the matter, the petition is dismissed with direction to the petitioner to surrender before the police forthwith, or else the police is directed to arrest and produce the petitioner Crl.M.C.No.3982/2022-G 16 before the Special Court. Registry shall forward a copy of this order to the Special Court forthwith for information and further action. _Sd/-_ _**(A.BADHARUDEEN, JUDGE)**_ _rtr/_ Crl.M.C.No.3982/2022-G 17 ## **`APPENDIX OF CRL.MC 3982/2022`** ## **`PETITIONER's ANNEXURES`** ``` Annexure A1 ``` ``` TRUE COPY OF ORDER DTD. 14.12.2020 IN CRL. M.C. NO.1134 OF 2020 OF THE SPECIAL COURT FOR POCSO CASES. ``` ``` Annexure A1(a)READABLE COPY OF ANNX.A1. ``` ``` Annexure A2 ``` ``` TRUE COPY OF FIRST INFORMATION REPORT (FIR) DTD. 13.03.2022 IN CR. NO. 151 OF 2022 OF MARAYOOR POLICE STATION IN IDUKKI DISTRICT. ``` ``` Annexure A3 ``` ``` TRUE COPY OF PETITION DTD. 28.03.2022 IN CRL.M.P. NO. 189 OF 2022 IN CRL.M.C. NO. 1134 OF 2020 IN S.C NO. 321 OF 2021 OF THE FAST TRACK SPECIAL COURT, IDUKKI. ``` ``` Annexure A4 ``` ``` TRUE COPY OF OBJECTION DTD. 23.05.2022 FILED IN ANNX.A3. ``` ``` Annexure A5 ``` ``` ORIGINAL ORDER DTD. 10.06.2022 IN CRL.M.P. NO. 189 OF 2022 IN CRL.M.C. NO. 1134 OF 2020 IN S.C NO. 321 OF 2021 OF THE FAST TRACK SPECIAL COURT, IDUKKI ```