## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR.JUSTICE K.HARILAL**
**WEDNESDAY, THE 11TH DAY OF SEPTEMBER 2013/20TH BHADRA, 1935**
**Crl.Rev.Pet.No. 1828 of 2013 --------------------------------**
**Crl.M.P.No.2904/2013 in Crl.M.C 1068/2013 of SESSIONS COURT,THALASSERY**
**REVISION PETITIONER(S)/3RD ACCUSED :**
**--------------------------------------**
**V.MAHAROOF AGED 32 YEARS S/O. HAMEED HAJI, VELIKKAKKATH HOUSE, MARAKANDAY KANNUR CITY, KANNUR DISTRICT.**
**BY ADVS.SRI.SUMAN CHAKRAVARTHY SRI.SUNITH K V**
**COMPLAINANT(S)/RESPONDENT :**
**-----------------------------**
**STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM-682 031.**
## **BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN.**
**THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11-09-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**stu**
## **K.HARILAL, J.**
= = = = = = = = = = = **Crl.R.P.No.1828 of 2013**
= = = = = = = = = = = = = = = Dated this the 11[th] day of September, 2013
## **O R D E R**
The Revision Petitioner is the 3[rd] accused in Crime No.222 of 2008 of Kannur City Police Station registered for the commission of offence punishable under Secs.4 and 5 of the Explosive Substances Act. The allegation is that on 24/09/2008, the 1[st] and 2[nd] accused stored some explosives in Deenual Islam Sabha School Compound and that explosives were carried in the autorikshaw of the petitioner. He was released on bail by the order passed by the sessions court, Thalassery in Crl.M.C.No.1068 of 2013 filed by him.
2. Subsequently, the State filed Cr.M.P.No.2904 under Sec.439(2) of the Code of Criminal Procedure for cancelling the bail granted to the Revision Petitioner in the above crime in Crl.M.C.No.1068 of 2013. It is stated in the petition that the Revision Petitioner had filed
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Crl.M.C.No.1068 of 2013 suppressing the fact that he had filed Bail Application No.4326/2013 before this Court seeking bail and that application was rejected as per order dated 25/06/2013. In that order, this Court while rejecting his bail application observed that he shall not be released on bail for a period of six months from the date of that order. After a period of six months, if there is any delay in starting trial, the accused may approach the Sessions Court for bail. Suppressing the said order of this Court in bail application B.A.No.4326 of 2013 dated 25/06/2013, the revision petitioner approached the Sessions Court and obtained an order of bail in his favour. On the above premises, the State filed the above petition seeking cancellation of bail under Sec.439(2) of the Cr.P.C. After considering the reasons for cancelling the bail averred by the State, the Sessions Court cancelled the order passed earlier invoking jurisdiction under Sec.439(2) of the Cr.P.C. This order is under challenge in this revision petition.
3. The learned counsel for the revision petitioner
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submits that the procedure adopted by the Sessions court is illegal and if the State was aggrieved by the earlier order, the State could have approached the Superior Court for cancelling the bail. The learned counsel further contends that the power under Sec.439(2) can be exercised only if the accused is released on bail and in the instant case the accused is not released on bail. Therefore, the learned Sessions Judge could not have exercised jurisdiction under Section 439(2) in the instant case. In support of the above arguments, the learned counsel placed reliance on
## **Mahendra Manilal Shah v. Rashmikant Mansukhlal**
**Shah** [2010 CLJ 4357]. The learned counsel for the revision petitioner fairly submits that the revision petitioner is not disputing the fact that he was released on bail by the sessions court without knowing dismissal of the bail application with certain observations and direction by the High Court. He canvassed the point relying on the procedural irregularity only. In view of the submissions at the Bar, the only question to be considered is whether there
Crl.R.P.No.1828 of 2013 4
is any illegality or procedural irregularity in cancelling the order invoking jurisdiction under Sec. 439(2) of the Cr.P.C by the Sessions Court itself.
4. Going by the impugned judgment, it could be seen that the revision petitioner had filed Crl.M.C.No.1068 of 2013 suppressing the fact that he had earlier filed an application before this Court and the same was got rejected as per order dated 25/06/2013. In that order, this Court while rejecting the bail application specifically observed that he shall not be released on bail for a period of six months from the date of that order. But, it is seen that within the period of six months itself suppressing the above observation of this Court he filed Crl.M.C.No.1068/2013 and obtained bail. This fact stands undisputed. The learned counsel appearing for the revision petitioner before the Sessions Court contended that he was not aware of the former bail application before this Court and order passed by this Court rejecting the petition. Nevertheless, in this revision, this Court is concerned with the legality and
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procedural regularity of the present order.
5. Going by Sec.439(2) of the Cr.P.C, it could be seen that a special power is granted to High Court and Sessions Court to cancel the bail already granted and direct the person who has been released on bail be arrested and commit into custody. The Section does not say any kind of parameters for exercising that jurisdiction. Therefore, it could be seen that the jurisdiction and power under Section 439(2) can be exercised on sufficient grounds to the satisfaction of the Sessions court or High Court, as the case may be, which granted bail. Here, the undisputed factual finding is that the revision petitioner willfully deceived the court below and obtained an order granting bail, suppressing the fact that earlier he has filed an application before the High Court for bail and got rejected with an observation that he shall not be released on bail within a period of six months. I am of the opinion that, that itself is a sufficient ground to invoke jurisdiction under Section 439(2) of the Cr.P.C. to direct that the revision petitioner, who has
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been released on bail, be arrested and committed him to custody after cancelling the earlier order.
6. The learned counsel for the revision petitioner drew my attention to paragraphs 14 and 16 of the decision in **Mahendra Manilal Shah and etc. Vs. Rashmikant Mansukhlal Shah and another [(2010 Cri.L.J. 4357)**
**Bombay High Court]** . I have bestowed my anxious consideration to those paragraphs. Going by the facts of the said case, it could be seen that the order passed under Section 437(5) by the Magistrate, who had earlier granted bail, was under challenge before the High Court. I am of the opinion that the power granted to Magistrate under Section 437(5) and the special power granted to Sessions Court under Section 439 (2) are entirely different and distinct. As rightly held by the Bombay High Court, after granting bail under Section 437, the Magistrate can pass an order under Section 437(5) on certain conditions only. But, the jurisdiction under Section 439(2) is entirely different as the same is very wide and a special power is granted to High
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Courts and Sessions Courts only. No specific parametres are prescribed for cancelling the bail under Section 439(2) by the High Court or the Sessions Court. Therefore, I find that the obtaining of a bail order from the sessions court in suppression of the dismissal of the bail application with certain structures which barred subsequent bail applications within six months passed by the High Court is a sufficient ground to cancel the bail and direct the accused, who has been released on bail, be arrested and committed him to custody, by the sessions court itself, invoking the said jurisdiction under Section 439(2) Cr.P.C.
7. The learned counsel for the revision petitioner cited the decision reported in **Puran Vs. Rambilas and another**
**[(2001) 6 SCC 338]** and drew my attention to paragraph No.11. I have considered the said paragraph also. Going by the said paragraph, I find that the facts of the case is entirely different. What is held by the court is that when the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that
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cropped up except those already existing, 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. But, in the instant case, contrary to the facts of that case, a fact which had been willfully suppressed came to the notice of the court subsequently. Therefore, I find that the said decision is not applicable to the instant case. There is no illegality or impropriety in the impugned order.
Consequently, this Revision Petition is dismissed.
**K.HARILAL, JUDGE.**
stu/okb
//True copy//
P.A to Judge.
