MUBASHEER.P v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 CRL.MC NO. 3181 OF 2023 ``` ``` CRIME NO.131/2022 OF Melattur Police Station, Malappuram ``` ``` ORDER DT.4.4.2023 IN SC.644/2022 ``` ``` PETITIONER/ACCUSED: ``` ``` MUBASHEER.P AGED 21 YEARS S/O.ABOOBACKER, PANAMPUZHI HOUSE, POTHAKKAL, KAPPU, THELAKKAD, MALAPURAM, PIN – 679325. BY ADV K.MOHANAKANNAN ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN – 682031. ``` ``` PUBLIC PROSECUTOR SRI M P PRASANTH ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.07.2024, THE COURT ON 23.07.2024 PASSED THE FOLLOWING: ``` Crl.M.C.No.3181 of 2023-G 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.M.C No.3181 of 2023_ ================================ _Dated this the 23[rd] day of July, 2024_ ## _**O R D E R**_ This petition has been filed by the sole accused in Crime No.131/2022 of Melattur Police Station, challenging order in Crl.M.P.No.31/2023 in S.C.No.644/2022 on the files of the Special Court for the trial of Offences Against Children (Additional Sessions Court-I), Manjeri, with the following prayers: _“(i) To quash Annexure-A3 order dated 4.4.2023 in Crl.M.P.No.31/2023 in S.C.No.644/2022 in Crime No.131/2022 of Melattur Police Station of Special Judge Fast Track-II, Perinthalmanna;_ _and_ _(ii) to restore the order of bail granted as per AnnexureA1 order dated 10.05.2022 in CMP.No.828/2022 and orders may be passed accordingly.”_ 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused Annexures-A3 and A1 Crl.M.C.No.3181 of 2023-G 3 orders. 3. The petitioner herein was booked by registering Crime No.131/2022 of Melathur Police Station, Malappuram, alleging commission of offences punishable under Sections 354(D), 450, 376(2)(n), 376(3) of Indian Penal Code and Sections 4(2), 3(a), 6 r/w 5(1), 12 r/w 11(iv) of Protection of Children from Sexual Offences Act (`POCSO Act’ for short hereafter). The allegation herein was that he subjected a minor girl, aged below 16 years, to rape after having maintained a relationship with her. While he was in he was released on bail as order in custody, per Crl.M.P.No.828/2022 dated 10.05.2022 by imposing conditions. Condition No.6 imposed in Annexure-A1 order was that the . _petitioner shall not involve in any similar offence while on bail_ 4. While the petitioner has been continuing on bail he got involved in another crime vide No.131 of 2023 of Melattur Police Station, where the prosecution alleges commission of offences Crl.M.C.No.3181 of 2023-G 4 punishable under Sections 363, 354D(1), 376(2)(n), 506(1) of IPC and Sections 4(1), 3(a), 6 r/w 5(l), 12 r/w 11(iv) of POCSO Act, 2012. 5. At this juncture, the prosecution filed a petition to cancel the bail already granted to the petitioner in Crime No.131/2022 on the ground that the petitioner violated condition No.6 by involving in another crime, viz. Crime No.131/2023. Though the cancellation of bail was opposed, denying the involvement of the petitioner in second crime, the learned Special Judge found that the petitioner violated condition No.6 of the bail order and accordingly his bail was cancelled. Now the said order of the learned Special Judge in Crl.M.P.No.31/2023 dated 04.04.2023, ie. Annexure-A3, is under challenge before this Court. 6. It is argued by the learned counsel for the petitioner that the petitioner is innocent and he has been falsely implicated in Crime No.131/2023. Therefore, Annexure-A3 order would require Crl.M.C.No.3181 of 2023-G 5 interference so as to allow the petitioner to continue on bail on the **`b`** asis of Annexure-A1 order. 7. The learned Public Prosecutor strongly opposed interference in Annexure-A3 order on the submission that the learned Special Judge rightly cancelled the bail, when the petitioner committed similar offence by subjecting rape on a friend of the victim in Crime No.131/2022 for serious offences, as alleged in Crime No.131/2022. 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**_ Crl.M.C.No.3181 of 2023-G 6 _**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;_ _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;_ Crl.M.C.No.3181 of 2023-G 7 _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:_ _“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_ Crl.M.C.No.3181 of 2023-G 8 _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 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_ Crl.M.C.No.3181 of 2023-G 9 _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._ _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_ Crl.M.C.No.3181 of 2023-G 10 _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 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_ Crl.M.C.No.3181 of 2023-G 11 _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 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)_ Crl.M.C.No.3181 of 2023-G 12 _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_ _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_ Crl.M.C.No.3181 of 2023-G 13 _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 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_ Crl.M.C.No.3181 of 2023-G 14 _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.”_ _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_ Crl.M.C.No.3181 of 2023-G 15 _(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 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 Crl.M.C.No.3181 of 2023-G 16 bail in Crime No.131/2022 of Melattur Police Station, involved in Crime No.131/2023 of the same Police Station and thereby he violated condition No.6 warranting cancellation of bail. Thus it is held that Annexure-A3 order passed by the Special Judge finding that the petitioner had willfully violated condition No.6, as borne out from the records, and he would commit such offences in future and he would contact witnesses in this case, which would affect smooth trial of the case, doesn’t require any interference. 10. Therefore, this petition is dismissed with direction to the 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, since his bail was already cancelled, without fail. 11. Interim order, if any, stands vacated. Crl.M.C.No.3181 of 2023-G 17 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/_ Crl.M.C.No.3181 of 2023-G 18 ## **`APPENDIX OF CRL.MC 3181/2023`** ## **`PETITIONER’S ANNEXURES`** |**`Annexure A1`**|**`TRUE COPY OF THE ORDER DATED 10-05-2022`**| |---|---| ||**`IN CMP NO.828/2022 IN CRIME NO.131/2022`**| ||**`OF MELATTUR POLICE STATION IN MALAPURAM`**| ||**`DISTRICT.`**| |**`Annexure A2`**|**`THE REPORT FILED BY THE PROSECUTION`**| ||**`BEFORE THE SPECIAL COURT.`**| |**`Annexure A3`**|**`TRUE COPY OF THE ORDER DATED 4-4-2023 IN`**| ||**`CRL.M.P.31/2023 ON THE COURT OF THE`**| ||**`SPECIAL`**<br>**`JUDGE`**<br>**`FAST`**<br>**`TRACK.II,`**| ||**`PERINTHALMANNA.`**|