**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE A.M.BABU**
**WEDNESDAY, THE 1ST DAY OF AUGUST 2018 / 10TH SRAVANA, 1940**
**OP(Crl.).No. 4529 of 2012**
**AGAINST THE ORDER/JUDGMENT IN CRMP 2827/2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, ALUVA DATED 18-12-2012**
## **PETITIONER(S)**
**SIJU @ THOPPIKILY, AGED 32 YEARS S/O. SRI.NARAYANAN, KARIMPANAKKAL HOUSE, EDALAKKAD THABORE POST, MOOKANOOR VILLAGE, ALUVA TALUK ERNAKULAM DISTRICT, PIN - 683 577**
**BY ADVS.SRI.K.P.RAMACHANDRAN SRI.R.MANOJ SMT.S.S.MEERA SMT.SHOBA NAIR SRI.K.JAYAKUMAR(CHERTHALA) SMT.K.L.LAKSHMI RANI SMT.MEREENA JOSEPH**
## **RESPONDENT(S):**
**STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN. 682 031**
**R BY ADV. B.JAYASURYA, PUBLIC PROSECUTOR**
**THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 01-08-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **OPCR 4529/2012**
## **APPENDIX**
## **PETITIONERS EXHIBITS**
**P1-TYPED COPY OF THE ORDER (IN CRL.M.P 3320/2011) OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, ALUVA GRANTING BAIL TO THE PETITIONER DATED 20.12.2011.**
**P2-TYPED COPY OF THE CRMP 2827/2012 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, ALUVA**
**P3-TRUE PHOTOSTAT COPY OF THE CERTIFICATE ISSUED BY THE DOCTOR WHO EXAMINED THE PETITIONER AND WHO WAS EXAMINED AS CW1 BEFORE THE COURT BELOW**
**P4-TYPED COPY OF THE STATEMENTS GIVEN BY CW1 ON 15.12.2012 BEFORE THE COURT BELOW**
**P5-CERTIFIED COPY OF THE BAIL CANCELLATION ORDER OF THE JUDICIAL FIRST CLASS MAGISTRATE-II, ALUVA IN CRMP 2827/2012 DATED 18.12.2012.**
## **RESPONDENTS EXHIBITS**
**ANNEXURE 1- TRUE PHOTOSTAT COPY OF THE ORDER DATED 4.7.2013 IN I.A.NO.8104/2013 IN OPCR 4529/2012.**
**TRUE COPY**
**SKS**
**P.A TO JUDGE**
## **A.M. BABU,J.**
## **= = = = = = = = = = = = = = = = =**
## **OP (Crl) No. 4529 of 2012**
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_Dated this the 1[st] day of August, 2018_
## **JUDGMENT**
Petitioner is the 4[th] accused in crime no.1397/2011 of Angamaly police station. He is alleged to have committed along with others offences punishable under Secs 109, 120B, 143, 147, 148, 149, 212, 302 and 447 of IPC. He was in custody for 90 days. But final report was not filed. Hence, on his application, he was granted bail by the learned magistrate under clause (a) of the proviso to Sec.167(2) of Cr.P.C. The learned magistrate imposed a few conditions while granting bail. One of the conditions was that the petitioner shall report to the investigating officer on every Tuesday between 9 a.m and 11 a.m until further orders or till the final report is filed. The investigating officer moved an application before the learned magistrate for cancellation of the bail granted to the petitioner. It was alleged therein that the aforenoted condition was violated by the petitioner. The learned magistrate after hearing both
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sides allowed the application filed by the investigating officer and cancelled the bail. The said order is sought to be set aside.
2. Heard Sri.K.P.Ramachandran, the learned counsel for the petitioner and Sri.B.Jayasurya, the learned public prosecutor.
3. The learned magistrate granted bail to the petitioner on 20.12.2011. Bail was granted under clause (a) of the proviso to Sec.167 (2) of Cr.P.C. One of the conditions imposed for the grant of bail was that the petitioner should report to the investigating officer on every Tuesday until further orders or till the filing of the final report. The investigating officer sought cancellation of the bail alleging violation of the said condition. He alleged that the petitioner did not report after 25.3.2012. The petitioner contends that he could not report to the investigating officer after 28.3.2012. One thing is thus clear that the petitioner did not report to the investigating officer after March 2012. The
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investigating officer filed the application seeking cancellation of the bail on 19.11.2012. That means the petitioner did not comply with the condition for about 8 months.
4. The petitioner contended that he could not report to the investigating officer as the former was afflicted with rheumatic arthritis. In order to prove his such contention he produced a medical certificate. A copy of it is Ext P3. It certifies that the petitioner was undergoing treatment for rheumatic arthritis from 2.4.2012. The author of Ext P3 has certified that he advised the petitioner to take rest as it was essential for the restoration of his health. It is also stated therein that the treatment was continuing. The learned magistrate examined the author of Ext P3 as CW1. He spoke that he treated the petitioner from 2.4.2012. CW1 deposed that the petitioner had joint pains and oedema on the leg. The witness admitted that the petitioner was not treated as an inpatient. The witness conceded that he did not advice
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bed rest. He spoke that he was not keeping any register whatsoever in his consultation clinic. According to CW1, he only advised the petitioner to take rest and avoid unnecessary journeys.
5. The evidence of CW1 is not favourable to the petitioner to the extent he expects. CW1 was not maintaining any register in his clinic. CW1 had to concede that no document was in existence to show that he did treat the petitioner. In these circumstances, the genuineness of the certificate itself is liable to be suspected. The learned magistrate is justified in not accepting it. Ext P3 is not worth the paper in which it is written. CW1 did not advice bed rest. Even going by the evidence of CW1, he was visited by the petitioner two or three times after 2.4.2012. If he could travel to meet CW1, he could have definitely complied with the condition imposed on him while granting bail. It was not necessary for him to undertake a long journey to report to the investigating officer. The police station is at Angamali.
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Going by the address of the petitioner shown in the petition, he resides in Aluva taluk. I am satisfied that the petitioner deliberately violated one of the conditions on which he was granted bail. I do not see any reason whatsoever to find that the learned magistrate did not consider what were to be considered.
6. The jurisdiction of the learned magistrate to cancel the bail is questioned by the petitioner. His learned counsel submits that under Sec.439 (2) of Cr.P.C high courts and courts of session alone have jurisdiction to cancel bail. It is true that under Sec.439(2) of Cr.P.C only high courts and courts of session have jurisdiction to direct the arrest of any person who is on bail. But Sec.439 (2) is not the sole provision in the Code of Criminal Procedure to pass an order directing the arrest of a person who is already on bail. As already said, bail was granted to the petitioner under clause (a) of the proviso to Sec.167 (2) of Cr.P.C. The said clause of the said proviso states that every person released on bail
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thereunder shall be deemed to be so released under the provisions of chapter XXXIII of Cr.P.C for the purposes of that chapter. As the bail was granted by a magistrate, the provisions of Sec.437 of Cr.P.C are applicable. Sec.437 (5) of Cr.P.C provides that any court which has released a person on bail under sub-sec.(1) or sub-sec.(2) may, if it considers it necessary so to do, direct that such person be arrested and committed to custody. The learned magistrate was virtually exercising that power since one of the conditions imposed for grant of bail was violated. It is impossible to find that the learned magistrate exercised a jurisdiction which she did not have.
7. The learned counsel for the petitioner has relied on **Thulaseedharan Nair vs State of Kerala (2006 (4) KLT 471).** That is a decision holding that bail can be cancelled under Sec.439 (2) of Cr.P.C by the high court and the court of session. Going by the facts of the said case, there was a request to cancel the bail on the ground that
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some serious offences were later charged against the accused therein. Situation is entirely different in the present case where one of the conditions imposed by the learned magistrate was violated by the petitioner. The reported decision does not therefore come to the rescue of the petitioner.
8. For reasons stated above, I do not find any reason whatsoever to interfere with the impugned order passed by the learned magistrate. The original petition therefore fails. It deserves only a dismissal.
9. Dismissed.
Sd/-
**A.M. BABU**
**Judge**
sks/1.8.2018
