Salim v. State of Kerala

Crl.M.C.No.4036 of 2024 :1: **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946** **CRL.MC NO. 4036 OF 2024** **CRIME NO.544/2023 OF VALLIKUNNAM POLICE STATION, ALAPPUZHA** **ORDER DATED 24.02.2024 IN CRL.MP NO.146 OF 2024 OF FAST TRACK SPECIAL COURT, CHENGANNUR ARISING OUT OF THE ORDER IN SC NO.1208 OF 2023 OF FAST TRACK SPECIAL COURT, CHENGANNUR** **PETITIONER/ACCUSED:** **SALIM AGED 31 YEARS S/O MADHAVAN, ENNAMBISHERIL HOUSE, VALLIKUNNAM, MAVELIKARA, ALAPPUZHA, PIN – 690501** **BY ADVS.SRI.R.HARIKRISHNAN (KAMBISSERIL) SRI.NEERAJ NARAYAN** **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BY SENIOR PUBLIC PROSECUTOR SRI.RENJIT GEORGE** **THIS CRIMINAL MISC. CASE HAVING BEEN FIANLLY HEARD ON 17.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.4036 of 2024 :2: ## **ORDER** Dated this the 17[th] day of July, 2024 The sole accused in SC No.1208/2023 on the files of Special Court for the trial of cases under Protection of Children from Sexual Offences Act, 2012(for short 'the POCSO Act'), Chengannur has filed this petition under Section 482 of the Code of criminal Procedure, 1973 (for short the Cr.P.C.) challenging Annexure-A5 order in Crl.M.P.No.146/2024 dated 24.02.2024 whereby the learned Special Judge cancelled the bail granted to the petitioner finding that he had violated the conditions of the bail order subsequently. The specific allegation is that the accused repeatedly followed the victim directly with sexual intent, caused fear to her and attempted to contact her to foster personal interaction repeatedly. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. According to the learned counsel for the petitioner, the allegations are false and the repeated sexual overtures by Crl.M.C.No.4036 of 2024 :3: attempting to contact the victim at the instance of the petitioner now alleged as the ground for cancelling the bail are false. According to him, the petitioner attempted to commit suicide as evident from Annexure-A2, Emergency Department of OP Ticket issued from Government T.D. Medical College Hospital, Alappuzha dated 16.01.2024 and the allegations led to cancellation of the bail has been raised after the said attempt. Highlighting that the petitioner did not violate the condition of the previous bail order, the learned counsel pressed for setting aside Annexure-A5 order and to allow the petitioner continue on bail, already granted. 4. Strongly opposing interference in Annexure-A5 order, the learned Public Prosecutor submits that though the petitioner was released on bail by imposing condition that he did not disturb the victim in any manner, the petitioner violated the condition and repeatedly disturbed the victim with sexual intent and the same led to cancellation of his bail. Learned Public Prosecutor also submitted that petitioner is a person having involvement in gruesome crimes and he has involvement in nine other crimes as stated as under: - “1. Vallikkunnam P.S. Cr.166/13 U/s 506 (ii), 294 (b), 323, 324 and 34 IPC. - 2. Vallikkunnam P.S. Cr.228/13 U/s 323 and 324 IPC. Crl.M.C.No.4036 of 2024 :4: 3. Vallikkunnam P.S. Cr.135/14 U/s 324 IPC. 4. Vallikkunnam P.S. Cr.282/15 U/s 143, 147,148,149, 294 (b), 323, 324 & 308 IPC. 5. Vallikkunnam P.S. Cr.297/15 U/s 341,323, 324, 308 & 34 IPC. 6. Vallikkunnam P.S. Cr. 443/21 U/s 294 (b), 341 & 323 IPC. 7. Vallikkunnam P.S. Cr. 146/22 U/s 354, 294 (b), 323, 324 & 506 IPC. 8. Vallikkunnam P.S. Cr. 555/23 U/s 468 & 471 IPC. 9. Vallikkunnam P.S. Cr. 58/24 U/s 341, 354 D (1)(i) & 506 IPC & Sec 11 (IV) r/w 12 of POCSO Act.” 5. On scrutiny of Annexure-A5 order, it is clear that the petitioner was released on bail by the Additional Sessions Court, Alappuzha vide order in Crl.M.P.No.5905/2023 by imposing conditions, and one among the conditions is that he should not make any attempt either directly or through any person or means, to communicate with the victim or her parents in any manner. Subsequently in violation of the said condition the accused followed the victim repeatedly and disturbed her with sexual intent and caused fear on her. On finding that the said allegations substantiated _prima facie_ , the learned Special Judge cancelled the Crl.M.C.No.4036 of 2024 :5: bail holding that the petitioner violated the bail conditions so as to go for the harsh order of cancellation of bail. 6. In so far as cancellation of bail is concerned, the same is a harsh order. In the decision reported in **Sobhin Sunny v. State of Kerala [2024 KHC Online 408]** , this Court considered the parameters which would warrant cancellation of bail and held as under: “8. In so far as the legal question as to whether what are the contingencies under which 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 s cancellation of bail referring the decision 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_ Crl.M.C.No.4036 of 2024 :6: _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 sufficient to cancel the bail granted by the Court. In_ _**Godson's** case (supra), this Court_ Crl.M.C.No.4036 of 2024 :7: _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_ Crl.M.C.No.4036 of 2024 :8: _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 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_ Crl.M.C.No.4036 of 2024 :9: _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 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.4036 of 2024 :10: _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 fact, the judgment in_ _**Dataram Singh** 's case (supra) was rendered by_ Crl.M.C.No.4036 of 2024 :11: _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 hold the 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 6302 : 2024 INSC 438 : 2024 LiveLaw (SC) 392], _**Ajwar v. Waseem**_ , the Apex Court considered this question after referring its earlier Crl.M.C.No.4036 of 2024 :12: 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 be loathe to interfere with an order passed by the court_ Crl.M.C.No.4036 of 2024 :13: _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.”_ 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 Crl.M.C.No.4036 of 2024 :14: ## 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. "_ 7. Thus Section 439 (2) Cr.P.C. empowers a court to cancel the bail for the reasons stated herein above including misuse of the liberty granted to him by violating the conditions imposed in the bail order. Having gone through the facts of the case, the Special Judge cancelled the bail of the petitioner on the finding that he had violated the condition of bail and in such a case cancellation of bail is fully justified. In view of the matter, Anenxure-A5 order cancelling bail of the petitioner does not require any interference. Accordingly, the Crl.M.C. stands dismissed. Sd/- **A.BADHARUDEEN JUDGE** MJL Crl.M.C.No.4036 of 2024 :15: ## **APPENDIX OF CRL.MC 4036/2024** |**PETITIONER'S **|**ANNEXURES:**| |---|---| |**Annexure A1**|**THE TRUE COPY OF TOKEN ISSUED FROM THE**| ||**VANDANAM T.D MEDICAL COLLEGE HOSPITAL**| ||**ALAPPUZHA DATED 16.01.2024**| |**Annexure A2**|**THE TRUE COPY OF THE EMERGENCY DEPARTMENT**| ||**OP TICKET ISSUED FROM THE VANDANAM T.D**| ||**MEDICAL COLLEGE HOSPITAL ALAPPUZHA DATED**| ||**16.01.2024**| |**Annexure A3**|**THE TRUE COPY OF THE REPORT DATED**| ||**05.02.2024 FILED BY STATION HOUSE OFFICER**| ||**VALLIKUNNAM**| |**Annexure A4**|**THE TRUE COPY OF THE OBJECTION FILED BY**| ||**THE PETITIONER BEFORE THE FAST TRACK**| ||**SPECIAL**<br>**JUDGE,**<br>**CHENGANNUR**<br>**(SESSION**| ||**DIVISION ALAPPUZHA)**| |**Annexure A5**|**ACCUSED COPY OF ORDER DATED 24.02.2024 IN**| ||**CRL M.P NO.146 IN 2024 IN S.C NO.1208 OF**| ||**2023, OF FAST TRACK SPECIAL JUDGE,**| ||**CHENGANNUR (SESSION DIVISION ALAPPUZHA)**| ## **RESPONDENT'S ANNEXURES: NIL** **/TRUE COPY/** **PA TO JUDGE**