Sabu George v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944** **CRL.MC NO. 9637 OF 2022** **AGAINST THE ORDER IN CRL.MC 2942/2022 IN SC NO.809/2022 IN CRIME NO.26/2022 OF EXCISE RANGE OFFICE, PALAKKAD** ## **PETITIONER/ACCUSED:** **SABU GEORGE AGED 36 YEARS, S/O P.S. GEORGE, PUNNAKKATTUSSERIYIL HOUSE, VADUTHALA JETTY ROAD P.O., CHERANALLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM BY ADV SATHEESH MOHANAN** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **PP-SRI.G.SUDHEER** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON** **19.01.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 9637 of 2022 2 ## **ORDER** ## **Dated this the 19[th] day of January, 2023** This is a petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred as ‘Cr.P.C’ for convenience) challenging Annexure.2 order in Crl. Miscellaneous Case No. 2942/2022 in S.C. No.809/2022 dated 23.10.2022 on the files of the Additional Sessions Court, Palakkad. The petitioner is the respondent/ 1[st] accused in the above case. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. Short facts of the case: The petitioner is the 1[st] accused in Crime No.26/2022, now pending as S.C. No. 809/2022 before the Special Court (Additional Sessions Court, Palakkad), who was charge sheeted on the allegation that he had committed offences punishable under Sections 20(b)(ii)(B), 25 and 29 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as 'NDPS Act' for short), on the allegation that the petitioner/ 1[st] accused carried 6 kilograms of Ganja in a vehicle bearing registration No. KL-18-V-6540 at 01.45 P.M. on 23.05.2022. 4. The petitioner was arrested in the above crime and had Crl.M.C No. 9637 of 2022 3 been detained in custody. Thereafter, the Special Court granted bail to the petitioner as per the order in Crl.M.C. No. 2060/2022 on 13.07.2022. One among the condition imposed, while granting bail to the petitioner, as condition No.5 is as under: “5. The petitioner shall not commit any offence while on bail” 5. Since the petitioner subsequently involved in Crime No. 872/2022 of Central Police Station, Ernakulam, alleging commission of offences punishable under Sections 323, 324, 307, 364, 120 B and 34 of IPC, alleged to be committed on 22.07.2022, the prosecution filed Crl. Miscellaneous Case. No. 2942 in S.C. No. 809/2022 to cancel the bail highlighting the involvement of the petitioner in Crime No. 872/2022. 6. In the said petition, notice was served on the counsel for the 1[st] accused/petitioner herein and on hearing both sides, the Special Court canceled the bail negativing the contention raised by the petitioner that he was implicated in a false case, foisted by the prosecution. 7. The learned counsel for the petitioner, who pressed for interfering in the order impugned, zealously argued that, the petitioner has no role in the subsequent crime and there was no Crl.M.C No. 9637 of 2022 4 allegation against him. According to him, the petitioner was the driver of the car, in where the defacto complainant in Crime No. 872/2022 was alleged to be taken forcefully and assaulted. He also submitted that in the FIS, there is no specific allegation against the petitioner and the Special Court did not appraise the said fact while holding that the petitioner also had involvement in Crime No. 872/2022. 8. Whereas the learned Public Prosecutor controverted the contention and placed case diaries in Crime No. 26/2022 (S.C. No. 809/2022) of Excise Range Office, Palakkad and in Crime No. 872/2022 of Central Police Station, Ernakulam. On perusal of the case diaries along with the FIS and additional statements of the defacto complainant and the eye witnesses coming to 6 in numbers, they categorically stated that 4 persons forcefully taken the defacto complainant in Crime No.872/2022 and thereafter they manhandled them. 9. It is relevant to note that, in the report filed in Crime No.26/2022, the Investigating Officer reported involvement of the accused/petitioner in five crimes apart from these crimes staring from 2013 to 2021. The same are as under: _“(1) C.R.NO.445/13 U/S 323, 324, 427 & 34 IPC, 2) C.R.NO.991/13 U/S 294(b), 323, 341 & 34 IPC 3)_ Crl.M.C No. 9637 of 2022 5 _C.R.NO.1250/13 U/S 323, 341,4 27 & 34 IPC, 4) C.R.NO.200/14 U/S 294(b), 427, 506 IPC & U/S 4 of Health Care Service Person & Health service Institution (Prevention of Violence & damage of Property), 1. C.R.No.210/2021 U/S 269 IPC & KP Act 2011(118(c))”_ 10. Thus on perusal of the case diary, the argument submitted by the learned counsel for the petitioner, raising absolute innocence and false implication of the petitioner in Crime No. 872/2022 could not be justified at all. 11. In so far as the cancellation of bail under Section 439 of Cr.P.C., in a latest 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 & anr.**_ , it has been 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. While considering the cancellation of bail for subsequent involvement of the accused in other offence, this Court, 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.**_ Crl.M.C No. 9637 of 2022 6 _**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 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;_ Crl.M.C No. 9637 of 2022 7 _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_ Crl.M.C No. 9637 of 2022 8 _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_ Crl.M.C No. 9637 of 2022 9 _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 nonbailable 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_ Crl.M.C No. 9637 of 2022 10 _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."_ 13. In the case on hand, in fact the petitioner has no contention that Central Police, Ernakulam has any animosity towards the petitioner to implicate him in a crime, for no valid reasons. Going by the case diaries and the materials placed by the Learned Public Prosecutor, involvement of the petitioner also in Crime No. 872/2022 is well established in _prima facie_ and the contention, if any, of the petitioner denying his complicity is a matter to be decided by the Special Court during trial. Since, _prima facie_ his involvement in Crime No. 872/2022 is specifically established, cancellation of bail for the said reason can only be justified. To put it otherwise, since the law is settled that indulging Crl.M.C No. 9637 of 2022 11 in similar or other criminal activities is a reason for cancellation of the bail, particularly, when a condition imposed in the initial bail order is to that effect, involvement of the accused in a similar offence by itself is a reason to cancel the bail granted, cancellation of bail on the said finding is to be justified. Therefore, the order impugned does not require any interference and hence the Crl.M.C is liable to be dismissed. Therefore, the Crl.M.C fails and is accordingly dismissed. **Sd/-** **A. BADHARUDEEN JUDGE** SK Crl.M.C No. 9637 of 2022 12 ## **APPENDIX OF CRL.MC 9637/2022** ## **PETITIONER'S ANNEXURES :** **ANNEXURE 1 TRUE COPY OF THE ORDER OF THE ADDL. SESSIONS JUDGE-II, PALAKKAD DIVISION DATED 13.07.2022 IN CRL. M C NO. 2060 OF 2022 ANNEXURE 2 THE CERTIFIED COPY OF THE ORDER OF THE ADDL. SESSIONS JUDGE-III IN CRL. M C 2942/2022 IN SC NO 809 /2022 DATED 23.10.2022 ANNEXURE 3 THE TRUE COPY OF THE FIS IN CRIME NO. 872/2022 OF CENTRAL POLICE STATION, ERNAKULAM ANNEXURE 4 TRUE COPY OF THE MEDICAL CERTIFICATE OF THE PETITIONER DATED 19.07.2022** **RESPONDENTS' ANNEXURES : NIL**