Vijin Kumar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 2[ND] DAY OF FEBRUARY 2023 / 13TH MAGHA, 1944 BAIL APPL. NO. 527 OF 2023** **CRIME NO.1909/2021 OF MARANALLOOR POLICE STATION, THIRUVANANTHAPURAM DISTRICT** **AGAINST THE ORDER DATED 14.12.2022 IN CRMP 3065/2022 OF II ADDITIONAL SESSIONS COURT, TRIVANDRUM** ## **PETITIONER/ACCUSED:** VIJIN KUMAR, AGED 26 YEARS, S/O. VIJAYAKUMAR, PUNARTHAM, MARANALLOOR P.O., VANDANOOR, THIRUVANANTHAPURAM DISTRICT, PIN – 695301. BY ADV SHAJIN S.HAMEED ## **RESPONDENT/STATE:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. SR. PUBLIC PROSECUTOR SMT.NEEMA T.V. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24.01.2023, THE COURT ON 02.02.2023 DELIVERED THE FOLLOWING: B.A.No.527 of 2023 2 ## _**A.BADHARUDEEN, J.**_ ================================ _B.A No.527 of 2023_ ================================ _Dated this the 2[nd] day of February, 2023_ ## _**O R D E R**_ The petitioner is the accused in Crime No.1909/2021 of Maranalloor Police Station, Thiruvananthapuram and he seeks regular bail in this petition filed under Section 439 of the Code of Criminal Procedure. 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. 3. In this matter, initially the learned Special Judge under the NDPS Act (Additional Sessions Court-II) granted bail to the accused, who alleged to have committed offences punishable under Section 20(b)(ii)(b) and 25 of Narcotic Drugs and Psychotropic B.A.No.527 of 2023 3 Substances Act, 1985 as well as Section 27 of the Arms Act, 1959, on the allegation that he had possessed 1.190 kg of ganja and also a chopper in his motorcycle bearing Reg.No.KL 20 P 1262. 4. The learned counsel for the petitioner would submit that the petitioner is liable to be released on bail. 5. However, it is pointed out by the learned Public Prosecutor that initially bail was granted and the same was cancelled, noticing his subsequent involvement in another crime. The said order was challenged before this Court vide Crl.M.C.No.6964/2022 and this Court also upheld the cancellation. It was thereafter, Crl.M.P.No.3065/2022 in SC.No.751/2022 was filed before the Special Court, Thiruvananthapuram, seeking bail. But the learned Special Judge also dismissed the application. 6. In this case, as per order in Crl.M.C.No.6964/2022 dated 19.10.2022, this Court considered the plea of the petitioner to set aside the order of cancellation and finally dismissed the B.A.No.527 of 2023 4 ## application as extracted here under: _“O R D E R_ _Dated, this the 19th October, 2022_ _This petition has been filed under Section 482 of Code of Criminal Procedure (hereinafter for short 'Cr.P.C.'), challenging order in Crl. M.P.No.616/2022 arising out of Crl.M.P.No. 1831/2022 in Crime No.1909/2021 of Maranallor Police Station. The petitioner is the sole accused in the above crime._ _2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor, who filed a detailed report justifying cancellation of bail, as per the impugned order._ _3. In this matter, the petitioner, who involved in the above crime was granted bail by the Special Court as per order in Crl.M.P. No.616/2022 by imposing conditions. One among the condition imposed in the bail order as could be seen from the impugned order is that he shall appear before the Investigating Officer on all Tuesdays and Fridays between 9 AM and 10 AM for a period of four months, after being released on bail and he shall not get involved in any offence while on bail. Since the petitioner violated the said order, prosecution filed petition to cancel the bail, highlighting that the petitioner failed to appear before the Investigating Officer on all Tuesdays and Fridays as directed by the bail order. It was pointed out by the prosecution_ B.A.No.527 of 2023 5 _before the Special Court that subsequently the petitioner got involved in another crime involving offence under Section 20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act and under Section 27 of Arms Act, vide Crime No.3/2022 of Excise Range office, Kattakkada._ _4. The learned counsel for the petitioner would submit that both cases' trial is going on and, therefore, the order cancelling bail may be set aside so that the petitioner can be released on bail._ _5. It is submitted by the learned Public Prosecutor that the petitioner has no respect to the orders passed by the court and he had disobeyed the direction of the Special Court while granting bail, not only by not appearing before the Investigating Officer as specifically directed, but also getting involved in another crime of similar nature._ _6. While appreciating the contentions, the latest three bench decision of the Apex Court is required to be referred. In the latest decision of the Apex Court reported in [2022 KHC 6496], [AIR 2022 SC 2138] P. v. State of Madhyapradesh and another, the Apex Court illustrated the circumstances, when bail granted to the accused can be cancelled, under Section 439(1) of Cr.P.C. as under:_ _As can be discerned from the above decisions, for cancelling bail once granted, the Court must consider whether_ B.A.No.527 of 2023 6 _any supervening circumstances have arisen or the conduct of the accused post grant of bail demonstrates that it is no longer conducive to a fair trial to permit him to retain his freedom by enjoying the concession of bail during trial, (Refer 1995 (1) SCC 349 (Daulat Ram and Others vs. State of Haryana) ). To put it differently, in ordinary circumstances, this Court would be loath to interfere with an order passed by the Court below granting bail but if such an order is found to be illegal or perverse or premised on material that is irrelevant, then such an order is susceptible to scrutiny and interference by the Appellate Court. Some of the circumstances where bail granted to the accused under Section 439(1) of the Cr.P.C. can be cancelled are enumerated below: -_ _a) If he misuses his liberty by indulging in similar/other criminal activity;_ _b) If he interferes with the course of investigation;_ _c) If he attempts to tamper with the evidence;_ _d) If he attempts to influence/threaten the witnesses_ _e) If he evades or attempts to evade court proceedings;_ _f) If he indulges in activities which would hamper smooth investigation;_ _g) If he is likely to flee from the country; h) If he_ B.A.No.527 of 2023 7 _attempts to make himself scarce by going underground and/or becoming unavailable to the investigating agency; i) If he attempts to place himself beyond the reach of his surety;_ _j) If any facts may emerge after the grant of bail which are considered unconducive to a fair trial._ _We may clarify that the aforesaid list is only illustrative in nature and not exhaustive._ _7. Circumstance (a), dealt by the Apex Court is misuse of the liberty by indulging in similar/other criminal activity and (h) is attempts to make himself scarce by going underground and/or becoming unavailable to the investigating agency. In this matter, circumstances (a) and (h) are established against the petitioner. In the decision, it has been held further that the list shown above are not exhaustive._ _8. In this case, a report has been placed before this Court stating that the petitioner has involved in four crime viz., (1)Crime No. 1675/21 U/s.286 IPC 7 Sec.4 of Explosive Act (2)Crime No.1909/2021 U/s.20(B)(II)B NDPS Act & 27 Arms Act (3)Neyyattinkara PS Crime No.2412/ 2021 U/s.143, 147, 148, 149, 341, 294(b), 323, 324, 427, 365 IPC (4)Excise Range Office, Kattakkada Crime No.03/2022 U/s.20(b)(ii)(B) and 25 of NDPS Act, 1985. It is reported further that the petitioner has Rowdy History of the station as RHS No.65 also._ B.A.No.527 of 2023 8 _Thus it appears that for valid reasons, on finding violation of bail conditions, the Special Court cancelled the bail of the petitioner, who had involved in multiple crimes as stated above. Therefore, I am not inclined to revisit the order._ _Accordingly, this petition stands dismissed.”_ 7. It is relevant to note that in the report of the Investigating Officer, it has been pointed out that the petitioner has involvement in 4 crimes and 2 out of the said crimes are under the NDPS Act. The following are the crimes where the petitioner has involvement: “i) Crime 1675/21 under Section 286 IPC & Section 4 of Explosive Act; ii) Crime No.1909/2021 u/s 20(b)(II)B NDPS Act & 27 of Arms Act; iii) Neyyattinkara Police Station Crime 2412/2021 u/s 143, 147, 148, 149, 341, 294(b), 323, 324, 427, 365 IPC and iv) Excise Range Office, Kattakkada Crime No.03/2022 u/s 20(b)(ii)(B) & 25 of NDPS Act, 1985.” 8. Thus it appears that the petitioner had violated one of B.A.No.527 of 2023 9 the conditions imposed by the Special Judge while granting him bail in the earlier crime, that not to involve in other crimes. In fact, such a person is not liable to be released on bail, if so, he would involve in other crimes. 9. Hence the bail application stands dismissed. Registry is directed to forward a copy of this order to the Special Judge, for information. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ B.A.No.527 of 2023 10 ## **APPENDIX OF BAIL APPL. 527/2023** PETITIONER'S ANNEXURES Annexure-A PHOTOCOPY OF THE ORDER DATED 02/06/2022 IN B.A.NO.3522/2022 OF THIS HONORABLE COURT. Annexure-B PHOTOCOPY OF THE ORDER DATED 19/10/2022 IN CRL.M.C.NO.6964/2022 OF THIS HONORABLE COURT . Annexure-C FREE COPY OF THE ORDER DATED 14/12/2022 IN CRL.M.P.NO.3065/2022 OF THE ADDITIONAL SESSIONS COURT-II, THIRUVANANTHAPURAM. Annexure-D PHOTOCOPY OF THE DOCTOR CERTIFICATE DATED 05/01/2023.