Rajith P.K. v. State of Kerala and The Station House Officer, Kannur Vanitha Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 09TH DAY OF MARCH 2020 / 19TH PHALGUNA, 1941** ## **Crl.MC.No.2821 OF 2019(C)** **AGAINST THE ORDER/JUDGMENT IN CRMC 649/2019 DATED 30-032019 OF DISTRICT COURT & SESSIONS COURT,THALASSERY** **AGAINST THE ORDER/JUDGMENT IN CMP 1468/2019 DATED 06-042019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KANNUR** **CRIME NO.31/2019 OF Vanitha Police Station Kannur** ## **PETITIONER/ACCUSED:** **RAJITH P.K. AGED 28 YEARS S/O RAJEEVAN, KELOTH HOUSE, THOTTADA, AMMUPARAMBA, KANNUR DISTRICT** **BY ADVS. SRI.K.R.AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.PRAJIT RATNAKARAN** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 2 THE STATION HOUSE OFFICER KANNUR VANITHA POLICE STATION, KANNUR - 670 001** **BY ADVS.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR , SRI.K.K.DHEERENDRAKRISHNAN(AMICUS CURIAE)** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** W.P(C). No. 2821 of 2019 2 ## ALEXANDER THOMAS, J. ------------------------------------ Crl.M.C. No. 2821 of 2019 ------------------------------------ Dated this the 9[th] day of March, 2020 ## **JUDGMENT** The prayers in the above Criminal Miscellaneous Case are as follows: _i) Call for the records in CMP No.1468/2019 of the JFCM Court-I Kannur._ _ii) Set aside the Annexure 4 order in CMP No.1468/2019 of JFCM Court-I Kannur dated 06-04-2019 cancelling the bail granted to the petitioner and enlarge the petitioner on bail._ _iii) Grant such other reliefs as this Honourable Court may deem fit and proper as on the facts and circumstances of the case._ 2. Heard Sri.K.R.Avinash (Kunnath), learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, the learned Prosecutor appearing for the respondents and Sri.K.K.Dheerendrakrishnan, learned Amicus curiae. 3. The petitioner herein has been arrayed as the sole accused in Crime No.31/2019 of Kannur Vanitha Police Station, which has been registered for the offences under Sec.354-C and Sec. 511 of 457 of IPC. The petitioner was arrested on 15-03-2019 and thereafter W.P(C). No. 2821 of 2019 3 remanded to judicial custody. 4. The brief of the prosecution case is that on 30-03-2019 at 9.45 p.m, petitioner/accused peeped through the ventilation of the bathroom of the lady defacto complainant while she was taking bath and that on 15-03-2019 at 2.45 a.m, he had tried to open the window of the bedroom of her house and attempted to commit lurking house trespass, thereby he has committed the abovesaid offences. 5. The petitioner had initially filed regular bail application before the Judicial First Class Magistrate Court-I, Kannur as per Criminal Miscellaneous Petition No.1193/2019 in the abovesaid crime and the learned Magistrate was then dismissed the said application as per Anx.1 order dated 19-03-2019, on the ground that the investigation was done in the process of recording the statement of the lady defacto complainant under Sec.164 of Cr.PC and that as the investigation was quite early, releasing the accused was not proper and right. 6. Later the petitioner has filed Criminal Miscellaneous Petition No.1277/2019 before the learned Magistrate for bail and the said application was also dismissed by the learned Magistrate as per Anx.2 order dated 23-03-2019 citing all similar grounds and also W.P(C). No. 2821 of 2019 4 ordering or finding that there was no change of circumstances. 7. Later the petitioner has filed Crl.M.C No.649/2019 before the Sessions Court, Thalassery and the Sessions Court was pleased to dismiss the said bail application as per Anx.3 order dated 30-03-2019 in Crl.M.C No.649/2019. When the abovesaid bail application was moved thrice before the abovesaid courts below, Sri.Vipin Surendran, learned Advocate, was then appearing for the petitioner. Later it appears that the petitioner engaged a new Lawyer, who was instructed to file fresh bail application. According to the petitioner, by oversight Anx.3 order dated 30-03-2019 dismissing the bail application by the Session Court, Thalassery was not made available to the new counsel and that the new counsel had filed Criminal Miscellaneous Petition No.1468/2019 before the JFCM Court-I, Kannur for bail and the learned Magistrate had granted bail as per order dated 03-04-2019, taking into account the length of the custody and stage of the investigation. Later it appears that the office of the JFCM, Kannur, who granted bail to the petitioner subsequently on 03-04-2019 had received a copy of Anx.3 order dated 30-03-2019 rendered by the Session Court, Thalassery, dismissing the earlier bail application of the petitioner. Thereupon the learned Magistrate had 5 W.P(C). No. 2821 of 2019 issued show cause notice to the petitioner/accused as to why bail shall not be cancelled for playing fraud upon the Court and the JFCM-I, Kannur has passed the impugned Anx.4 order dated 06-04-2019 on C.M.P No.1468/2019 in the said crime ordering that the bail earlier granted to the petitioner on 03-04-2019 in CMP No.1468/2019 will stand cancelled as the petitioner has fraudulently suppressed the crucial factum regarding the dismissal of the earlier bail appreciation by the Sessions Court as per Anx.3 order dated 30-03-2019. 8. The learned Magistrate after placing reliance on the judgment of the Kolkata High Court in _**Ashok Kumar Kabra v. Kamala Devi Shaw and others**_ (1996 Cri LJ 38), has held that such suppression made by the petitioner amounts to fraud upon the Court and therefore Court is justified to cancel the bail granted to the petitioner. The main contention urged by the petitioner is that the learned Magistrate has no jurisdiction to cancel the bail granted to the petitioner/accused by the learned Magistrate as per order dated 03-04-2019 in CMP No.1468/2019. There is no case that the petitioner has in any manner violated the conditions of the grant of the bail as per the said order dated 03-04-2019 etc,. It is pointed out 6 W.P(C). No. 2821 of 2019 that there is a clear distinction in law between setting aside of a bail order as well as the cancellation of the bail granted to the accused on account of the acts of the accused in violating the terms and conditions of the bail order. It is urged by the counsel for the petitioner that the action taken by the learned Magistrate purportedly under Sec.437 (5) of the Cr.PC, to pass an order in the nature of the Anx.4 order to cancel the bail on the aforesaid ground is illegal and without jurisdiction, etc,. 9. Per contra, the learned Prosecutor would point out that it is by now well established that if judicial order is obtained on the basis of fraud made by the party on the Court, then the said order is a nullity and therefore the learned Magistrate is fully justified to cancel the bail granted to the petitioner as per order dated 03-04-2019 inasmuch as there is no dispute that the petitioner has clearly suppressed the crucial factum regarding the bail refusal order rendered by the Sessions Court concerned as per Anx.3 order dated 30-03-2019 and that since the Sessions Court is superior to the Magistrate Court, such an order passed by the learned Magistrate on 06-04-2019 on the basis of fraud played by the petitioner can only be treated as a nullity as it is obtained on the basis of fraud. W.P(C). No. 2821 of 2019 7 10. It is by now well established by series of rulings that there is a clear distinction in law between an order setting aside the bail order, in contradiction to cancellation of the bail granted to the accused on account of the acts of the accused in violating the terms and conditions of the bail order. The former is rendered by a Court which is superior to the bail granting Court on account of illegality, perversity, lack of jurisdiction etc,. The former does not depend upon the petitioner/accused doing any acts to violate the terms and conditions of the bail order and it is dependent upon the fact as to whether bail order granted to the accused by the criminal court concerned is illegal, improper, perverse etc,. Such a jurisdiction could set aside the bail order on those grounds rendered by the superior court. Whereas in a case where the accused violates the terms and conditions of the bail order then, even the bail granting court can take action to cancel the bail on account of the accused doing acts to violate the terms and conditions of the bail order. 11. Prima facie, this Court is of the view, in the fitness of things that the learned Magistrate should have reported the matter to the Sessions Court (whose order was suppressed by the petitioner), so that the Sessions Court could have considered as to whether suo W.P(C). No. 2821 of 2019 8 motu revision powers to be invoked under Sec.397 of Cr.PC. That would have been the better and proper course of action. 12. Having regard to the facts, the impugned Anx.4 order cancelling the bail granted to the petitioner has been stayed by this Court at the time of the admission of the Crl.MC. The learned Magistrate was otherwise satisfied on merits to grant bail in favour of the petitioner as per the order dated 03-04-2019. Having regard to the fact that much time has been elapsed after the petitioner has been released on bail as per Anx.3 order dated 03-04-2019, this Court is of the considered view that the benefit of the bail order granted to the petitioner need not be disturbed at this point of time, provided the petitioner pays exemplary cost for having suppressed crucial factum regarding the bail refusal order rendered earlier by the Sessions Court in this case. This Court is taking the said view as it is now well settled by a series of rulings by the Apex Court and various High Courts including this Court, that setting aside of the bail order or cancellation of the bail on account of violation of the bail conditions, are having very serious adverse consequences on the accused and therefore such orders will have to be passed with due care and caution. Therefore this Court is inclined to take the view that the bail W.P(C). No. 2821 of 2019 9 order granted to the petitioner by the learned Magistrate on 03-04-2019 need not be disturbed, etc., provided the petitioner pays exemplary cost as aforementioned. Accordingly, it is ordered that the petitioner should pay cost of Rs.10,000/- to the District Legal Service Authority, Thalassery within three weeks from the date of receipt of a copy of this order and produce receipt in that regard before the JFCM-I, Kannur who has passed the impugned Anx.4 order dated 06-04-2019 on Crl.M.P No. 1468/2019 in Crime No.31/2019 of Kannur Vanitha Police Station. In case the petitioner does not produce receipt evidencing payment of the said cost amount of Rs.10,000/- paid to the District Legal Service Authority, Thalassery within the above time limit, then Anx.4 order cancelling the bail will stand restored and consequently the bail granted to the petitioner as per order dated 03-04-2019 by the learned Magistrate will stand cancelled in terms of impugned Anx.4 order dated 06-04-2019. On the other hand in case the petitioner pays the said cost amount of Rs.10,000/- then the impugned Anx.4 order dated 06-04-2019 rendered by JFCM-I, Kannur on Crl.M.P No. 1468/2019 in Crime No.31/2019 of Kannur Vanitha Police Station will stand quashed and set aside. The petitioner/accused will personally appear before the 10 W.P(C). No. 2821 of 2019 JFCM-I Kannur, who is dealing with crime No.31/2019 of Kannur Vanitha Police Station, on 30-06-2020 at about 11.00 a.m and produce receipt evidencing the payment of the said cost. That in case the petitioner does not produce receipt to evidence the payment of the said cost as directed hereinabove, then Anx.4 order will be in force and the petitioner will thereupon stand remanded to custody etc,. With these observations and directions the above Crl.M.C will sand finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** KAS W.P(C). No. 2821 of 2019 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE**|**1**|**TRUE COPY OF THE ORDER OF THE JFCM**| |---|---|---| |||**COURT-1, KANNUR DATED 19.3.2019 IN CMP**| |||**1193/2019**| |**ANNEXURE**|**2**|**TRUE COPY OF THE ORDER OF THE JFCM**| |||**COURT - 1, KANNUR DATED 23.3.2019 IN**| |||**CMP 1277/2019**| |**ANNEXURE**|**3**|**TRUE COPY OF THE ORDER OF THE SESSIONS**| |||**COURT, THALASSERY DATED 30.3.2019 IN**| |||**CRL MC 649/19**| |**ANNEXURE**|**4**|**CERTIFIED COPY OF THE ORDER DATED**| |||**6.4.2019 OF THE JFCM COURT-1, KANNUR IN**| |||**CMP 1468/19**| ## **RESPONDENT'S/S EXHIBITS: NIL**