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High Court of KeralaSingle JudgeDismissed

SunildeTh v. The State of Kerala & Others

Case / Petition Number:Crl.M.C.No.300 of 2008

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • R. Basant
Judgment Date
2008-06-25
Court Decision / Holding
This Crl.M.C is in these circumstances dismissed with the above observations.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • SUNILDETH, S/O. SIVADASAN, AYODHAYAYIL, CHITTATTINKARA DESOM, AVANAVANCHERRY VILLAGE, ATTINGAL, THIRUVANANTHAPURAM

Respondents

  • THE STATE OF KERALA, rep. by its Public Prosecutor, High Court of Kerala, Ernakulam
  • PRASANNABABU, S/O. KUMARAN, KARTHIKA, CHITTATTINKARA DESOM, AVANAVANCHERRY VILLAGE, THIRUVANANTHAPURAM DISTRICT
  • SHASHAKAN, S/O. JANARDHANAN, - 'KESAVAMANDIRAM', CHITTATTINKARA DESOM, AVANAVANCHERY VILLAGE, THIRUVANANTHAPURAM DIST.
  • MOHANAN, S/O. KOCHUKRISHNAN, AMBALATHUMAVATHUKKAL HOUSE, ALANGODE VILLAGE, MANARKAL DESOM, THIRUVANANTHAPURAM DIST.
  • RAJU, S/O. KUMARAN, - "RINKU NIVAS", CHITTATTINKARA DESOM, AVANAVANCHERY VILLAGE, THIRUVANANTHAPURAM DIST.
  • SUDHARMA, D/O. DEVADASAN, KADAKKASSERY, KADAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DIST.
  • MADHU, KADAKKASSERY, KADAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DIST
  • THE SUB-INSPECTOR OF POLICE, ATTINGAL POLICE STATION

Legal Representation & Advocates

Counsels for Petitioners

  • • SRI. SUMAN CHAKRAVARTHY

Counsels for Respondents

  • • SRI. GIKKU JACOB (Public Prosecutor)
  • • SRI. TOM K. THOMAS for R2-7

Case Synopsis & Summary

This High Court of Kerala, in a criminal miscellaneous case, deals with a de facto complainant’s challenge to anticipatory bail granted to multiple accused in crime No.5/08 (Attingal Police Station). The court recalls that the private complaint was referred to police under Section 156(3) Cr.P.C., forming the crux of the dispute: the de facto complainant alleges that the accused, to whom articles entrusted by him had been returned incompletely or not at all, benefited from anticipatory bail. Accused Nos.1,3,5–8 sought cancellation of that bail order (dated 17/01/2008 in BA No.261/2008) and were directed to appear before the Magistrate on specified dates with bonds and reporting obligations. The petitioner argues that bail was not properly granted and seeks cancellation; the court notes that cancellation is an exceptional remedy and should be used only on compelling grounds, and that a challenge to the correctness of the bail order cannot be entertained via cancellation. The court also addresses non-compliance by accused 7 and 8 with appearance requirements; it holds that since they did not comply, there is effectively no bail protection left for them. The judge emphasizes that the request for cancellation fails on merits, and, while acknowledging directions to cooperate with an investigation (including further directives from earlier benches), dismisses the Crl.M.C. with observations. The decision clarifies the proper recourse would be under Section 156(3) to approach the Magistrate, and cites Sakiri Vasu and Vasanthi Devi as doctrinal anchors for this approach.

Provisions of Law Cited

Section 156(3) Cr.P.C.

Legal Doctrines & Maxims

  • Cancellation of anticipatory bail is an exceptional remedy; it should be exercised only for compelling and exceptional reasons.
  • Sakiri Vasu v. State of U.P. & Others - doctrine permitting recourse under Section 156(3) Cr.P.C. to facilitate police investigation, recognized as guiding principle.
  • Vasanthi Devi v. Sub Inspector of Police - structural follow-up in line with Sakiri Vasu; doctrinally supports the same approach.

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicant contends that the anticipatory bail granted in favour of the accused was not properly granted and should be cancelled. He asserts that the bail order was not in accordance with law and that the remedy lies in cancellation only upon compelling grounds; he further argues that there was insufficient opportunity for interrogation and asserts that non-compliance by some accused would undermine the protective effect of the bail order. He relies on the principle that cancellation of bail is an exceptional remedy and should not be entertained casually.

Contentions of Respondents

The respondents contend that anticipatory bail was properly granted with clear conditions, including appearance before the investigating officer on specified dates. They argue that cancellation is not warranted where the bail conditions have been complied with or where non-compliance has already nullified the protection for some accused. They rely on the disciplinary and procedural safeguards of Cr.P.C. and the court’s power to ensure appearance and interrogation, pointing to the possibility of directing further compliance as necessary.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Sakiri Vasu v. State of U.P & Others[2008 AIR SCW 309]PositiveCited as authority for approaching the Magistrate under Section 156(3) Cr.P.C to facilitate investigation; used to support that cancellation of anticipatory bail is an exceptional remedy and not a standalone remedy.
Vasanthi Devi v. Sub Inspector of Police[2008(1) KLT 945]PositiveMentioned as following Sakiri Vasu; used to reinforce the doctrinal line that permits recourse under 156(3) and related investigative steps.

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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 R.BASANT WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 Crl.MC.No. 300 of 2008() -----------------------AGAINST THE JUDGEMENT/ORDER IN BA.261/2008 Dated 17/01/2008 .................... ## PETITIONER: DEFACTO COMPLAINANT ------------------------------- SUNILDETH, S/O. SIVADASAN, AYODHAYAYIL, CHITTATTINKARA DESOM, AVANAVANCHERRY VILLAGE, ATTINGAL, THIRUVANANTHAPURAM. BY ADV. SRI.SUMAN CHAKRAVARTHY ## RESPONDENTS: STATE AND ACCUSED 1,3,5,6,7 & 8 -------------------------------------------- 1. THE STATE OF KERALA, REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. PRASANNABABU, S/O. KUMARAN, KARTHIKA, CHITTATTINKARA DESOM, AVANAVANCHERY VILLAGE, THIRUVANANTHAPURAM DISTRICT. 3. SHASHAKAN, S/O. JANARDHANAN, - 'KESAVAMANDIRAM', CHITTATTINKARA DESOM, AVANAVANCHERY VILLAGE, THIRUVANANTHAPURAM DIST. 4. MOHANAN, S/O. KOCHUKRISHNAN, AMBALATHUMAVATHUKKAL HOUSE, ALANGODE VILLAGE, MANARKAL DESOM, THIRUVANANTHAPURAM DIST. 5. RAJU, S/O. KUMARAN, - "RINKU NIVAS", CHITTATTINKARA DESOM, AVANAVANCHERY VILLAGE, THIRUVANANTHAPURAM DIST. 6. SUDHARMA, D/O. DEVADASAN, KADAKKASSERY, KADAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DIST. 7. MADHU, KADAKKASSERY, KADAKKAL VILLAGE, KOTTARAKKARA TALUK, KOLLAM DIST. 8. THE SUB-INSPECTOR OF POLICE, ATTINGAL POLICE STATION. BY PUBLIC PROSECUTOR SRI.GIKKU JACOB SRI.TOM K.THOMAS FOR R2-7 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** ## **----------------------** ## Crl.M.C.No.300 of 2008 ---------------------------------------Dated this the 25[th] day of June 2008 ## **O R D E R** The petitioner is the de facto complainant in crime No.5/08 of Attingal police station. That crime was registered on the basis of a private complaint filed by the petitioner which was referred by the learned Magistrate to the police under Section 156(3) Cr.P.C. 2. The crux of the allegations against the accused persons is that the de facto complainant who was obliged to abscond apprehending action against him in a crime had entrusted certain articles/properties to the accused persons, who did not faithfully return the same to the de facto complainant when he returned. Accused 1,3 and 5 to 8 had come to this court with an application for anticipatory bail and by an order dated 17/1/2008 in B.A.No.261/2008, the said application for anticipatory bail was allowed subject to conditions. Inter alia it was directed that the accused/petitioners must surrender before the learned Magistrate on 24/1/2008 and execute bonds. Crl.M.C.No.300/08 2 Further conditions were imposed obliging the petitioners in the bail application to appear before the investigating officer on 25/1/2008 and 28/1/2008 between 10 a.m and 3 p.m and thereafter between 10 a.m and 12 noon for a further period of two months on all Mondays and Fridays. Thereafter they were directed to appear before the investigating officer as and when directed to do so in writing by the investigating officer. The petitioner had come to this court on 22/1/2008 with a prayer that the anticipatory bail granted in favour of those petitioners/accused may be cancelled. 3. What is the reason? Cancellation of bail is an exceptional harsh remedy which the law prescribes and such powers to cancel the bail shall be invoked by the court only if compelling and exceptional reasons are shown to exist. To a pointed query as to the grounds on which such relief is claimed, the learned counsel for the petitioner submits that anticipatory bail was not granted properly and in accordance with law. That contention cannot be raised in an application for cancellation. If the petitioner is aggrieved by the order granting anticipatory bail his remedy lies elsewhere. He cannot seek Crl.M.C.No.300/08 3 cancellation of bail on the ground that the discretion was not exercised by the court correctly. 4. The learned counsel for the petitioners next contends that accused 7 and 8 have not so far appeared before the learned Magistrate as insisted by condition (a) in the anticipatory bail order. If they have not done so, condition No.(c) clearly stipulate that the police can thereafter arrest the petitioners and deal with them in accordance with law. Non-compliance with condition (a) entails the consequence of the accused persons not being able to claim the benefit of the anticipatory bail order. So far as accused 7 and 8 are concerned consequent to their noncompliance with the direction to appear before the learned Magistrate on 24/1/2008, there is no order of anticipatory bail now and there is hence no need of canceling the anticipatory bail granted to them. 5. So far as the other petitioners/accused are concerned, the learned counsel for the petitioners contends that effective opportunity for interrogation is not made available and hence the order of bail may be cancelled. I find no merit in this contention also as there was specific direction that the petitioners/accused Crl.M.C.No.300/08 4 must make themselves available for interrogation before the investigating officer between 10 a.m and 3 p.m on 25/1/2008 and 28/1/2008 and between 10 a.m and 12 noon for a further period of two months and subsequently as and when directed by the investigating officer in writing to do so. In these circumstances, the grievance that the order granting anticipatory bail deprives the investigating officer of an opportunity to interrogate the petitioners/accused is also found to be without any merit. I do further note that another Bench of this court while dealing with this Crl.M.C on 24/3/2008 had further directed the accused persons to appear before the investigating officer and make themselves available for interrogation on 01/4/2008. The said contention cannot also in these circumstances succeed. 6. To sum up, I do not find any reason that can persuade this court to cancel the order of anticipatory bail already granted to the petitioners/accused in the anticipatory bail application. Accused 7 and 8, as already observed, are not entitled for protection of the anticipatory bail order now, they having not complied with the terms of the said order. Crl.M.C.No.300/08 5 7. The learned counsel for the petitioners airs a further grievance that no proper investigation is being conducted. The petitioners can in compliance with the dictum in Sakiri Vasu v. State of U.P & Others [2008 AIR SCW 309] which has been followed in Vasanthi Devi v. Sub Inspector of Police [2008(1) KLT 945] approach the learned Magistrate with appropriate application under Section 156(3). For that reason also, the anticipatory bail already granted does not deserve to be cancelled. 8. This Crl.M.C is in these circumstances dismissed with the above observations. **(R.BASANT, JUDGE)** jsr // True Copy// PA to Judge Crl.M.C.No.300/08 6 Crl.M.C.No.300/08 7 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007