Sreejith Unni v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943** **CRL.MC NO. 871 OF 2021** ## **PETITIONER/1ST ACCUSED** SREEJITH UNNI AGED 30 YEARS S/O. VIJAYAKUMARAN NAIR, RESIDING AT T.C. 19/124, MANAKARATHALA VEEDU, THIRUMALA P.O, NOW RESIDING AT KULATHINKARA PURAMPOKKUVEEDU, NEAR KALLARAMADOM TEMPLE, THIRUMALA, THIRUVANANTHAPURAM DISTRICT, PIN-695 006 BY ADVS. J.R.PREM NAVAZ SHRI.SUMEEN S. ## **RESPONDENTS** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN-682 032 2 VINCENT, M.S. DAS, POLICE SUB INSPECTOR OF POLICE, POOJAPPURA POLICE STATION, THIRUVANANTHAPURAM. 3 XXXXX (NAME AND ADDRESS CANNOT BE DISCLOSED AS PER RULES). PP. SEENA.C THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.10.2021, THE COURT ON 05.11.2021 DELIVERED THE FOLLOWING: **CRL.M.C.871/21** **-2-** ## ORDER Dated : 5[th] November, 2021 1. This Crl.M.C has been filed against the order in Crl.M.P.1060/2020 in Crime No.1395/2020 of Poojappura police station by which the bail order was cancelled. 2. Petitioner is arraigned as first accused in Crime No.1395/2020 for the offence punishable under Sections 363, 368, 341, 506 and 376 IPC and Section 4 r/w 3, 17 r/w 16, 21 r/w 19 (1)(b) of the PoCSO Act. It is alleged that in between 31.7.2020 at about 4.00 pm and 4.8.2020 on 9.00 pm, petitioner kidnapped a minor girl from the lawful guardianship of her parents and thereafter committed aggravated penetrative sexual assault and rape upon her. The other accused aided the first accused and also wrongfully restrained and threatened the de facto complainant. 3. Petitioner was arrested on 14.8.2020 in the above crime and as per the order in Crl.M.P.1060/2020 the Additional Sessions Judge for Trial of Cases relating to Atrocities and Sexual Violence Against Women and Children, Thiruvananthapuram released him on bail. Copy of the said order is produced as Annexure-A1. 4. Petitioner would contend that the petitioner and victim girl were in love and known to each other. The crime was registered only on the ground that she was below 18 years of age. 5. Bail was granted on condition that the petitioner shall appear **CRL.M.C.871/21** **-3-** before the Investigating Officer on all Sundays between 9.00 am and 10.00 am for a period of three months from the date of release or till the final report is filed whichever is earlier and also that he shall not involve in any other offence while on bail along with other usual conditions. Petitioner had been complying with the conditions in Annexure-A1 order fully. By the impugned order bail granted to the petitioner was cancelled on the ground that the petitioner violated condition Nos.2 and 4 in not appearing before the Investigating Officer on 14.11.2020 and further that he is involved in Crime No.1135/2020 of Poojappura police station which is registered for the offence punishable under Sections 447 and 506 IPC at the instance of the mother of the victim in the above Crime. True copy of that FIR is produced as Annexure-A2. According to the petitioner, he was laid up due to viral fever and hence he could not appear before the Investigating Officer on 14.11.2020. He was advised bed rest for about 10 days and hence was forced to stay at home. He appeared before the 2[nd] respondent on 21.11.2020 explaining the facts. But the 2[nd] respondent did not permit him to put the signature in the register and intimated about the application for cancellation of bail. 6. On perusing the impugned order, it appears that the medical certificate issued by a private medical practitioner was not considered by the Special Court and further the violation of **CRL.M.C.871/21** **-4-** condition No.4 with regard to the involvement of another crime was taken into account. It is also found that the petitioner is involved in 19 Crimes of Poojappura police station details of which are also extracted in the impugned order. 7. The Inspector and Station SHO, Poojappura filed statement of facts in the Crl.M.C in which he has made a detailed description of 30 crimes alleged to be pending against the petitioner. 8. Matters to be followed while exercising the powers under Section 439(2) to cancel the bail has been enumerated in **Abdul Basit @ Raju and Others v. Md.Abdul Kadir Chaudhary and Another (2014 (10) SCC 754 = 2014 KHC 4678:2014 KHC 4678: 2014 11 SCALE 96).** Paragraph 18 of the said decision is relevant in this context to be extracted which reads as follows:- “18. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody, i.e., the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation , (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the **CRL.M.C.871/21** **-5-** investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last mentioned case, one would expect very strong grounds indeed. (Raghubir Singh and Ors. etc. v. State of Bihar, 1987 CriLJ.157)” ## 9. Paragraph 19 under Section 439(2) considered in **Gurcharan Singh and Others v. State (Delhi Administration) (1978** ## **(1) SCC 118 = 1978 SCC (Cri) 41)** has also been quoted. “Section 437 Cr. P.C. deals, inter alia with two stages during the initial period of the investigation of a non- bailable offence. Even the officer incharge of the police station may, by recording his reasons in writing, release a person accused of or suspected of the commission of any non- bailable offence provided there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Quick arrests by the police may be necessary when there are sufficient materials for the accusation or even for suspicion. When such an accused is produced before the court, the court has a discretion to grant bail in all non- bailable cases except those punishable with death or imprisonment for life, if there appear to be reasons to believe that he has been guilty of such offences. The Courts over-see the action of the police and exercise judicial discretion in granting bail always bearing in mind that the liberty of an individual is not unnecessarily and unduly abridged and at the same time the cause of justice does not **CRL.M.C.871/21** **-6-** suffer.' After the court releases a person on bail under sub-s. 1 or subSec. 2 of S. 437 Cr. P.C. it may direct him to be arrested again when it considers necessary so to do. This will be also in exercise of its judicial discretion on valid grounds.” ## 10. In **Somesh Chaurasia v. State of M.P. and Anr. (AIR 2021 SC 3563)** paragraph 36 is also relevant which reads as follows : “This Court in Abdul Basi v. Abdul Kadir Choudhary, while discussing the powers of the High Court to cancel bail granted to an accused under Section 439(2) of the Cr.P.C has observed that typically the following conduct of the accused would result in the cancellation of bail - (I) misuse of liberty by engaging in similar criminal activity; (ii) interference with the course of investigation; (iii) tampering of evidence or witnesses; (iv) threatening of witnesses or engaging in similar activities which would hinder the investigation (v) possibility of fleeing to another country; (vi) attempts to become scarce by becoming unavailable for investigation or going underground; and (vii) being out of the reach of their surety. Similar considerations govern the cancellation of bail at the post-conviction stage under the second proviso to Section (1) of the Cr.P.C. this Court in Pampapathy v. State of Mysore, had held that the High Court had the power to revoke the suspension of sentence granted under sub-sections (1) and (2) of Section 426 of the erstwhile Code of Criminal Procedure, 1898 (“CrPC, 1898”) using its inherent powers under Section 561-A of the CrPC, 1898. The accused were alleged to have misused their liberty while their sentence was suspended. Subsections (1) and (2) of Section 426 of the CrPC, 1898 are similar to Section 389(1) of the present CrPC. It may be noted that in Pamapathy (supra) the issue of cancellation of **CRL.M.C.871/21** **-7-** bail of a convit, by taking recourse to Section 561-A of the CrPC, 1898 arose because the second proviso which, now has been added to sub-section (1) of Section 389 CrPC did not exist under the earlier legal framework. However isnce the second proviso to sub section (1) of Section 389 CrPC now, deals with the cancellation of bail no inherent power, would be required for revocation of suspension of sentence and bail granted to a convicted person, during the pendency of appeal at the appellate court. 11. So from the above settled position of law, one can come to a conclusion that when there are materials to establish that accused threatens the witnesses or indulges in similar activities which would hamper smooth investigation, the bail granted to him can be cancelled. 12. As far as the present issue is concerned, the question for determination is about the validity of the cancellation of the order of bail by the learned Special Court. Annexure-A2 crime was registered against the petitioner upon a complaint filed by the mother of the victim girl. According to the learned counsel for the petitioner, it is a false complaint filed just for the purpose of cancellation of bail granted to the petitioner and no such incident as alleged had actually taken place. In view of the specific contention raised by the counsel for the petitioner, this Court directed the learned Public Prosecutor to file a report with regard to Crime 1135/2020 and also asked to produce the materials prima facie to show as to whether anybody else had **CRL.M.C.871/21** **-8-** given statement in corroboration with the victim girl. Accordingly, copy of the final report in Crime No.1135/2020 of Poojappura police station along with statement of the victim girl and two witnesses have been produced. Copy of the statement of the victim girl would go to show that on 17.11.2020 accused trespassed into the house where the victim girl resides and he also alleged to have asked her to come with him and further that he will go only along with her. She was not ready to go with him. Then he intimidated to do away with her and suddenly she obtained phone from the witness and intimated the mother. That witness has given statement in corroboration and another person who had been working where construction was going on, also gave statement in corroboration. So prima facie there are materials to support that there are violation of condition No.4 of Annexure-A4 bail order. Even though there is a finding of the learned Special Court that accused/petitioner did not chose to take a treatment in Government Hospital, it does not hold good, since everybody cannot be insisted to undergo treatment only in a Government hospital and the medical certificate AnnexureA4 certifying that he had been under treatment for viral fever as outpatient from 12.11.2020 and was advised to take bed rest for ten days, ought to have been accepted to find that there is no wilful latches on his part in not appearing before the Court on 14.11.2020. But there is no excuse as far as the violation of **CRL.M.C.871/21** **-9-** condition No.4 is concerned. Apart from that, the learned Public Prosecutor also vehemently contend about the pendency of series of other Crimes pending against the petitioner. However all those factors could not have been taken into account for the cancellation of the bail since bail was granted to the petitioner on 10.11.2020 knowing about the pendency of cases. 13. It is true that the learned counsel for the petitioner would vehemently contend that the petitioner and the de facto complainant were in love and he has also produced photographs to show that a customary marriage has also been conducted and thereafter at the instance of the mother of the victim, this complaint has been filed. He also brought to my attention to **Denu P.Thampi v. Ms.X and Another (2019 (3) KHC 199 = ILR 2019 (2) Ker.759)** to contend that the offence under Section 376 will not attract since victim gave consent for sexual intercourse on the promise made by the accused that he would marry her and when it is found that the promise is not fraudulent by subsequent marriage between the accused and the victim, it cannot be said that the accused committed rape on the victim. He would also brought to my attention to **Ashiq v. State of Kerala (2019 (2) KLT 1130)** wherein a crime registered under Section 366A and 376 IPC and Section 3(a) r/w 4 of PoCSO Act was quashed by this Court in exercise of the extra ordinary inherent powers under Section 482 of Cr.P.C on **CRL.M.C.871/21** **-10-** the ground of that settlement between the parties when the accused married the de facto complainant and the de facto complainant insisted for quashment of the impugned criminal proceedings. However, those decisions have no application in the case on hand because the de facto complainant the victim girl not at all supported the contention of the accused and further that, she was alleged to be a minor at the time of the alleged marriage. 14. As has been rightly found by the Special Court, there are materials to prove that the petitioner violated condition No.4 in the bail order by involving in another crime and also tried to threaten the witnesses and tamper with the evidence. So the impugned order passed by the learned Special Court is perfectly legal and does not warrant any interference at the instance of this Court. In the result, Crl.M.C dismissed. Sd/- **M.R.Anitha JUDGE** Mrcs/20.10.21. **-11-** ## **CRL.M.C.871/21** ## **APPENDIX OF CRL.MC 871/2021** PETITIONER ANNEXURE ANNEXURE A1 THE TRUE COPY OF THE ORDER DATED 10.11.2020 IN CRL.M.P. NO. 1005 OF 2020 PASSED BY THE ADDITIONAL SESSIONS JUDGE FOR TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN, THIRUVANANTHAPURAM. ANNEXURE A2 THE TRUE COPY OF THE FIR IN CRIME NO. 1135 OF 2020 OF VATTIYOORKAVU POLICE STATION, THIRUVANANTHAPURAM DISTRICT. ANNEXURE A3 THE TRUE COPY OF THE ORDER DATED 25.01.2021 IN CRL.M.P. NO. 1060 OF 2020 PASSED BY THE ADDITIONAL SESSIONS JUDGE FOR TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN, THIRUVANANTHAPURAM.