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High Court of KeralaSingle JudgeBail application dismissed.

Shijo and Others v. The Sub Inspector of Police, Kumali Police Station, Idukki & The State of Kerala

Case / Petition Number:Bail Appl. No.3635 of 2019

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • B. Sudheendra Kumar
Judgment Date
2019-06-11
Court Decision / Holding
In the result, this application stands dismissed. The court held that the bail already granted by the lower court is not automatically cancelled by adding a grav er offence; it is for the lower court to decide on cancellation as per the circumstances. The High Court also directed exemption from personal appearance for the petitioners before the lower court till it decides CMP 1191/2019, provided the petitioners are represented by a counsel.
Final Disposition
Bail application dismissed.

Parties to the Case

Appellants / Petitioners

  • Shijo
  • Rins o
  • Prince
  • Rince
  • Paul Mani
  • Simon

Respondents

  • The Sub Inspector of Police, Kumali Police Station, Idukki — 685 509
  • State of Kerala represented by the Public Prosecutor, High Court of Kerala, Ernakulam — 682 031

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. G. Hariharan
  • • Smt. K.S. Smitha
  • • Sri. Praveen H.

Counsels for Respondents

  • • Smt. V. Sreeja, Public Prosecutor

Case Synopsis & Summary

This is a bail application under Section 438 Cr.P.C. filed by six petitioners—Shijo, Rinso, Prince, Rince, Paul Mani and Simon—arising out of Crime No. 193/2019 registered at Kumali Police Station, Idukki, for offences including 143, 144, 147, 148, 294(b), 324 and 427 read with 149 IPC. The trial court had granted bail on 7 May 2019. Subsequently, the prosecution sought cancellation of bail by informing that the offences had been augmented to include Section 308 IPC. The question before the High Court was whether bail granted by the lower court would automatically stand canceled upon addition of a grav er offence. The Public Prosecutor relied on the Supreme Court decision in Manoj Suresh Jadhav and Others v. State of Maharashtra to contend that mere addition of a grav er offence does not automatically cancel bail; cancellation must be sought by the State in the proper proceeding. The court noted that the lower court had not cancelled the bail yet; notices had only been issued. It held that the lower court should decide the bail cancellation in due course. The petitioners’ counsel sought exemption from personal appearance pending a decision on CMP 1191/2019, which the court granted, provided representation by counsel. The High Court ultimately dismissed the bail application, leaving the question of cancellation to the court below and directing appearance exemptions pending CMP resolution.

Provisions of Law Cited

Section 438 Cr.P.C.Section 143 IPCSection 144 IPCSection 147 IPCSection 148 IPCSection 294(b) IPCSection 324 IPCSection 427 r/w Section 149 IPCSection 149 IPCSection 308 IPC

Legal Doctrines & Maxims

  • Remedy must be sought by filing a cancellation application in the court; bail granted cannot be automatically canceled by the prosecution on addition of an offence.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants argued that once bail is granted by the lower court, it cannot be automatically canceled merely because an additional, grav er offence has been added. They sought exemption from personal appearance pending the lower court’s decision on CMP 1191/2019, contending the presence of counsel suffices until a ruling is made.

Contentions of Respondents

The prosecution contended, relying on the principle articulated in Manoj Suresh Jadhav v. State of Maharashtra, that the mere addition of a grav er offence to the charge sheet cannot automatically rescind bail; the State must seek cancellation of bail through proper proceedings in the court that granted it.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Manoj Suresh Jadhav and Others v. State of Maharashtra2018(2) KHC 848PositiveCited to support the proposition that bail cannot be automatically canceled upon the addition of a grav er offence; cancellation must be sought through proper court proceedings.

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Extracted Judgment Text

Exact text extracted from official judgment records.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941** ## **Bail Appl..No.3635 of 2019** **AGAINST THE ORDER/JUDGMENT IN CMP 1155/2019 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, PEERUMEDU DATED 07-05-2019** **CRIME NO.193/2019 OF Kumily Police Station , Idukki** ## **PETITIONER/S:** **1 SHIJO AGED 29 YEARS AMBALATHINKKAL HOUSE, 5TH MILE, CHAKKUPPALAM, KUMALY,IDUKKI - 685 509.** **2 RINSO AGED 29 YEARS** **AMBALATHINKKAL HOUSE, 5TH MILE, CHAKKUPPALAM, KUMALY,IDUKKI - 685 509.** **3 PRINCE AGED 31 YEARS AMBALATHINKKAL HOUSE, 5TH MILE, CHAKKUPPALAM, KUMALY,IDUKKI - 685 509.** - **4 RINCE AGED 29 YEARS** **AMBALATHINKKAL HOUSE, 5TH MILE, CHAKKUPPALAM, KUMALY,IDUKKI - 685 509.** - **5 PAUL MANI AGED 28 YEARS AMBALATHINKKAL HOUSE, 5TH MILE, CHAKKUPPALAM, KUMALY,IDUKKI - 685 509.** **6 SIMON AGED 42 YEARS KAKKANATTU HOUSE, 5TH MILE, CHAKKUPPALAM, KUMALY,IDUKKI - 685 509.** **BY ADVS.** ## **Bail Appl..No. 3635 of 2019** -2- **SRI.G.HARIHARAN SMT.K.S.SMITHA SRI.PRAVEEN.H.** ## **RESPONDENT/S:** - **1 THE SUB INPECTOR OF POLICE KUMALI POLICE STATION,IDUKKI - 685 509.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **OTHER PRESENT: SMT.V.SREEJA,PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 11.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **Bail Appl..No. 3635 of 2019** -3- ## **ORDER** **The petitioners are accused in Crime No.193/2019 of Kumaly Police Station registered for the offences punishable under Sections 143, 144, 147, 148, 294(b), 324 and 427 r/w Section 149 IPC.** **2. This Court as per order dated 4.6.2019 allowed the bail application. At that time, it was not brought to the notice of this Court that the petitioners were already granted bail by the court below. However, before signing the order, it was brought to the notice of this Court that the petitioners are already on bail.** **3. The petitioners were granted bail** ## **Bail Appl..No. 3635 of 2019** -4- **by the court below on 7.5.2019. Thereafter, the prosecution filed an application before the court below informing the court that the offences under Sections 323 and 308 IPC were also added to the Section of offences. Therefore, notice was issued to the petitioners for cancellation of bail. In the said circumstances, the petitioners have approached this Court with the above application under Section 438 Cr.P.C.** **4. Heard.** **5. Now the question to be considered is as to whether the bail granted by the court** **below on 7.5.2019 would be automatically cancelled or not on adding Section 308 IPC to** ## **Bail Appl..No. 3635 of 2019** -5- **the Section of offences. The learned Public Prosecutor, Smt.V.Sreeja, relied on the decision of the Apex Court in Manoj Suresh Jadhav and Others v. State of Maharashtra [2018(2) KHC 848] and argued that the adding of a graver offence to the Section of offences would not automatically lead to the cancellation of the bail already granted.** **6. In Manoj Suresh Jadhav (supra), the Apex Court held that when bail is granted by the Court, it is not permissible for the State to simply re-arrest the accused by ignoring the order of bail and the remedy of the State is to move the Court seeking for cancellation of bail already** ## **Bail Appl..No. 3635 of 2019** -6- **granted.** **7. In this case, the bail granted by the court below is not yet cancelled by the Court. The court below had only issued notice to the petitioners when an application was filed by the learned Assistant Public Prosecutor seeking for cancellation of bail. It is for the court below to take a decision, on the facts and circumstances of the case, as to whether the bail already granted to the petitioners is to be cancelled or not. This being the situation, particularly when the bail already granted by the court below is in force, I do not find any reason to entertain** ## **Bail Appl..No. 3635 of 2019** -7- **this Application filed under Section 438 Cr.P.C.** **8. The learned counsel for the petitioners has requested for issuing a direction to the court below to dispense with the personal appearance of the petitioners till a decision is taken by the court below on C.M.P.NO.1191/2019. In view of the above submission, I am of the view that it is only just and proper to issue a direction to the court below to grant exemption to the petitioners from personal appearance before the court below till a decision is taken by the court below on C.M.P.NO.1191/2019, provided the petitioners** **Bail Appl..No. 3635 of 2019** -8- **are duly represented by a counsel. It is ordered accordingly.** **In the result, this application** **stands dismissed.** STK Sd/- **B. SUDHEENDRA KUMAR, JUDGE** //TRUE COPY// //P.A. TO JUDGE//