State represented by Central Bureau of Investigation (CBI), Thiruvananthapuram v Moideen Kunji @ Neelagiri Moideen @ Moinji, S/o Late Moosa Byari, Moodambayal House Adianadka, Punacha Village, Karnataka (now r/at Badhariya Quarters Badhaidka, Kasaragod) (IST accused)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN WEDNESDAY, THE 4TH DAY OF JANUARY 2012/14TH POUSHA 1933 ## **CRMC.No. 4280 of 2011** CRIME NO.213 OF 2010 OF BADIADKA POLICE STATION ## **PETITIONER: RESPONDENT** 1 STATE, REPRESENTED BY CENTRAL BUREAU OF INVESTIGATION SCB, THIRUVANANTHAPURAM. BY ADV.SRI.P.CHANDRASEKHARA PILLAI, C.B.I. ## **RESPONDENT: PETITIONER** - 1 MOIDHEEN KUNJI @ NEELAGIRI MOIDHEEN @ MOINJI S/O.LATE MOOSA BYARI, MOODAMBAYAL HOUSE ADIANADKA, PUNACHA VILLAGE KARNATAKA NOW R/AT.BADHARIYA QUARTERS BADAIDKA, KASARAGOD (IST ACCUSED). BY ADV. SRI.I.V.PRAMOD THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.12.2011, THE COURT ON 04-01-2012 , PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** **-----------------------------------------------------CRL.M.C. NO. 4280 OF 2011 -----------------------------------------------------Dated this the 4[th] day of January, 2012** ## **O R D E R** The question involved in the Criminal Miscellaneous Case is whether the order of bail granted by the High Court in favour of the accused under Section 439 of the Code of Criminal Procedure at the crime stage can be cancelled by the High Court after the final report was filed and after the Sessions Court granted regular bail to the accused, on the ground that the accused violated the conditions in the order passed by the High Court. 2. As per the order dated 21.1.2010 in B.A.No.202 of 2010, bail was granted to the respondent and three others in Crime No.213 of 2009 of Badiadka Police Station. The offences alleged against the accused were under Sections 143, 147, 148, 341 and 302 read with Section 149 of the Indian Penal Code. Bail was granted to the respondent and others at the crime stage. Later, as per the order passed by this Court in a Writ Petition, investigation of the crime was handed over to the Central Bureau of Investigation (“the CBI” for short). The CBI deleted some accused from the array of accused CRL.M.C. NO.4280 OF 2011 :: 2 :: and added some others as accused. The offences alleged against the accused as of now are under Sections 120B, 143, 147, 148, 341, 302 and 212 read with Section 149 of the Indian Penal Code. 3. After completing the investigation, charge sheet was filed. The case is now pending as S.C.No.156 of 2011 before the Sessions Court. The trial of the case is going on and some of the witnesses were examined. 4. The Criminal Miscellaneous Case is filed by the CBI under Sections 439(2) and 482 of the Code of Criminal Procedure to cancel the order of bail dated 21.1.2010 in B.A.No.202 of 2010 on the ground that the respondent violated the conditions in the order. One of the conditions imposed while granting bail was that the respondent herein should not commit any offence or indulge in any prejudicial activity while on bail. It is alleged by the petitioner that the respondent assaulted Sheik Ali, a witness in the case, on 21.10.2011. Crime No.358 of 2011 of Badiadka Police Station was registered against the respondent under Sections 341, 323, 324, 294 (b) and 308 read with Section 34 of the Indian Penal Code. It is also alleged that the respondent has threatened the witnesses with an CRL.M.C. NO.4280 OF 2011 :: 3 :: intention to prevent those witnesses from giving evidence before Court. 5. The respondent filed an affidavit in answer to the averments made in the Criminal Miscellaneous Case. The respondent stated that he was assaulted by Sheik Ali, who is his close relative. It is also stated that the respondent sustained stab injuries in the incident. Various other contentions have been raised by the respondent, which are not relevant for consideration, in the manner in which I propose to dispose of the Criminal Miscellaneous Case. In the affidavit, the respondent stated thus: “12. Though this Honourable Court was pleased to grant bail to the petitioner in the crime stage, subsequently the petitioner appeared before the Magistrate Court and released on bail during committal stage. After that he appeared before the trial court and the learned Additional Sessions Court, Ernakulam was pleased to grant bail to the petitioner in that stage. Therefore the present application is invalid.” 6. Both sides argued the matter in great detail. Since the maintainability of the Criminal Miscellaneous Case is challenged by CRL.M.C. NO.4280 OF 2011 :: 4 :: the respondent, it is necessary to answer that contention. 7. The averments made by the respondent, as quoted above, are not denied by the petitioner. That means, after the order dated 21.1.2010 was passed by this Court, orders were passed by the learned Magistrate and the learned Sessions Judge granting bail to the respondent. Those orders were not produced by either side. The prayer in the Criminal Miscellaneous Case is to cancel bail granted to the respondent on the ground that he violated the conditions in the order dated 21.1.2010. That order was passed at the crime stage. One of the conditions in the order was that the respondent herein should report before the investigating officer on all Mondays and Thursdays till the final report was filed. The respondent was also directed not to enter into the limits of Badiadka Police Station for a period of two months. Evidently, the order dated 21.1.2010 was intended to be operative during the crime stage. After the charge sheet was filed and after committal of the case, the Sessions Court granted bail. The respondent is governed by the conditions imposed by the Sessions Court while granting bail. Even if bail granted by this Court as per the order dated 21.1.2010 is cancelled, that would not automatically result in the cancellation of CRL.M.C. NO.4280 OF 2011 :: 5 :: bail granted by the Sessions Court thereafter. Therefore, I am of the view that the petitioner could file only an application to cancel the bail granted by the Sessions Court. The petitioner has not made any such application. It is not known as to what conditions were imposed by the Sessions Court while granting bail. 8. Section 439(2) of the Code of Criminal Procedure provides that a High Court or Court of Session may direct that any person who has been released on bail under Chapter XXXIII be arrested and commit him to custody. It is well settled that an order of bail granted by the Sessions Court can be cancelled by the High Court exercising jurisdiction under sub-section (2) of Section 439 of the Code of Criminal Procedure. In **Gurcharan Singh and others** v. **State (Delhi Administration) (AIR 1978 SC 179)** , the Supreme Court held thus: “16. Section 439 of the new Code confers special powers on High Court or Court of Session regarding bail. This was also the position under S.498, Cr.P.C. of the old Code. That is to say, even if a Magistrate refuses to grant bail to an accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under S.439(2) of the CRL.M.C. NO.4280 OF 2011 ## :: 6 :: new Code, the High Court or the Court of Session may direct any person who has been released on bail to be arrested and committed to custody. In the old Code, S.498(2) was worded in somewhat different language when it said that a High Court or Court of Session may cause any person who has been admitted to bail under sub-section (1) to be arrested and may commit him to custody. In other words, under S.498(2) of the old Code, a person who had been admitted to bail by the High Court could be committed to custody only by the High Court. Similarly, if a person was admitted to bail by a Court of Session, it was only the Court of Session that could commit him to custody. This restriction upon the power of entertainment of an application for committing a person, already admitted to bail, to custody, is lifted in the new Code under S.439(2). Under S.439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIII by any Court including the Court of Session to custody, if it thinks appropriate to do so. It must, however, be made clear that a Court of Session cannot cancel a bail which has already been granted by the High Court unless new circumstances arise during the progress of the trial after an accused person has been admitted to bail by the High Court. If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain ## CRL.M.C. NO.4280 OF 2011 ## :: 7 :: new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under S.439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.” 9. The decision in Gurcharan Singh's case was followed by the Supreme Court in **Puran** v. **Rambilas and another ((2001) 6 SCC 338)** and it was held thus: “16. ....... In the hierarchy of courts, the High Court is the superior court. A restrictive interpretation which would have the effect of nullifying Section 439(2) cannot be given. When Section 439(2) grants to the High Court the power to cancel bail, it necessarily follows that such powers can be exercised also in respect of orders passed by the Court of Session. Of course cancellation of bail has to be on principles set out hereinabove and only in appropriate cases.” CRL.M.C. NO.4280 OF 2011 :: 8 :: 10. The order dated 21.1.2010 passed by this Court in B.A.No.202 of 2010 worked itself out after the charge sheet was filed. At present, the respondent is governed by the order of bail granted by the learned Sessions Judge. There is no averment that the respondent violated the order passed by the learned Sessions Judge. Materials are lacking to arrive at a conclusion as to whether bail granted to the respondent is liable to be cancelled on the ground that he violated the conditions in the order of bail passed by the learned Sessions Judge. 11. For the reasons mentioned above, I am of the view that the Criminal Miscellaneous Case is not maintainable. For the aforesaid reasons, the Criminal Miscellaneous Case is dismissed without prejudice to the right of the petitioner to move afresh for concellation of bail, on any ground legally available to the petitioner, in accordance with law. **(K.T.SANKARAN) Judge** ahz/