Vishnu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS ``` ``` WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 ``` ``` CRL.MC NO. 1723 OF 2023 ``` ``` CRIME NO.1372/2022 OF SASTHAMCOTTAH POLICE STATION ``` ## **`PETITIONER/ACCUSED:`** ``` VISHNU AGED 32 YEARS,S/O. VENUGOPAL, KOCHUTHUNDIL VEETTIL, NADUVILEMURI, KUNNATHOOR P.O., KOLLAM, PIN: 690 540. ``` ``` BY ADVS. SRI.K.R.VINOD SMT.M.S.LETHA SRI.NABIL KHADER SMT.CHITHRA C.EDADAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI PIN - 682031 ``` ## **`BY SMT.SREEJA V, PUBLIC PROSECUTOR`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.03.2023, THE COURT ON 15.03.2023 PASSED THE FOLLOWING: ``` Crl.M.C. No.1723/23 **-:** 2 **:-** ## **BECHU KURIAN THOMAS, J. -------------------------------Crl.M.C No.1723 of 2023 ---------------------------------** Dated this the 15[th] day of March, 2023 ## **ORDER** Petitioner is the accused in Crime No.1372 of 2022 of Sasthamcottah Police Station. He was granted bail in the aforesaid crime by this Court on 20.12.2022. By the impugned order, the learned Magistrate cancelled the bail after finding that the conditions imposed while granting bail were violated by the petitioner. In this proceeding, under section 482 Cr.P.C, petitioner assails the order cancelling his bail. 2. Petitioner is alleged to have committed the offences under sections 294(b), 323, 324 and 308 read with section 34 of the Indian Penal Code, 1860 (for short 'IPC'), based on which Crime No.1372 of 2022 of the Sasthamcottah Police Station was registered (hereafter referred to as ‘the first crime’). By order dated 20.12.2022, in B.A. No.7367 of 2022, this Court granted bail to the petitioner. Five conditions were imposed while Crl.M.C. No.1723/23 **-:** 3 **:-** granting bail. The conditions included appearing before the Investigating Officer on all Saturdays at 11 am till the filing of the final report, not entering the jurisdictional limits of Sasthamcottah Police Station for a period of one month except for complying with the condition of appearance before the Investigating Officer and also not to involve in any other crime while on bail. 3. Alleging that petitioner had committed a serious offence within nine days of obtaining bail in the first crime, the Sasthamcottah Police registered Crime No.1957 of 2022 (hereafter referred to as ‘the second crime’) alleging commission of offences under sections 294(b), 323, 324, 326, 341 and 307 read with section 34 of the IPC. In the second crime, petitioner, who is the first accused, is alleged to have brutally assaulted the defacto complainant on his head and face using a freewheel and inflicted grievous injuries including a fracture of the skull and deep incised wounds on the face. The injuries required 28 stitches on the head and 19 stitches on the face of the defacto complainant and the accused thus attempted to commit murder. 4. On 04.01.2023, an application was filed by the SHO, Crl.M.C. No.1723/23 **-:** 4 **:-** Sasthamcottah Police Station, seeking to cancel the bail granted to the petitioner. Petitioner is alleged to have violated the conditions of bail since (i) he failed to appear before the Investigating Officer as directed, (ii) he involved himself in the second crime, and (iii) for committing the second crime, he entered into the limits of Sasthamcottah Police Station. When petitioner was apprehended in the second crime, the notice for cancellation of bail was served on him in the prison. Thereafter a detailed objection was filed by the counsel for the petitioner on 09.02.2023. However, by the impugned order, the learned Magistrate cancelled the bail granted to the petitioner. 5. Sri.K.R.Vinod, learned counsel for the petitioner vehemently contended that sufficient opportunity was not granted to the petitioner to object to the application for cancellation of bail, as he was only served with a notice and that he was not given sufficient opportunity to file an objection, after proper consultation with his advocate. It was further submitted that as per the judgment in **XI, Victim SC No.211 of 2018 of POCSO Court v. State of Kerala and Others** (2019 (3) KHC 26), this Court had specifically directed a summary enquiry to be Crl.M.C. No.1723/23 **-:** 5 **:-** conducted before cancelling the bail and in the absence of such an enquiry, the procedure adopted by the learned Magistrate was vitiated. It was also submitted that if a proper enquiry as contemplated under law was carried out, petitioner could have convinced the court that he was falsely framed in the second crime and that none of the circumstances for cancellation of the bail exist. 6. Smt.Sreeja V., learned Public Prosecutor on the other hand contended that proper notice was served on the petitioner, as directed by the court and pursuant to the notice, an objection was also filed through the counsel and the learned Magistrate had heard the case on four different posting dates and it was thereafter that the bail was cancelled. It was further submitted that the heinousness of the subsequent crime could not be ignored and the same was committed in gross violation of the conditions imposed, apart from the fact that the same had been committed within 9 days of the grant of bail by this Court. According to the learned Public Prosecutor, the subsequent crime has actually created terror in the minds of the public at large which will not be conducive to a fair trial and therefore the order Crl.M.C. No.1723/23 **-:** 6 **:-** of the learned Magistrate needs no interference. 7. I have considered the rival contentions. 8. Petitioner questions the cancellation of bail granted to him in the first crime. It has been cancelled alleging violation of the conditions of bail. Three conditions are alleged to be violated. 9. On the question of failure to serve proper notice is concerned, this Court finds that after serving notice of the application for cancellation of bail to the petitioner personally on 06.01.2023, an Advocate appeared on behalf of the petitioner. Thereafter, the Advocate had even filed a detailed objection running into three pages controverting the allegations in the application for cancellation of bail. In view of the objection filed on behalf of the petitioner through the counsel, whose engagement is not disputed by the petitioner, there is no merit in the contention that petitioner was not served with a proper notice. It is trite that the service upon the counsel once engaged is sufficient service and in criminal courts, especially when the accused is in custody, a memo of appearance is sufficient evidence of due engagement of the counsel. Therefore, even if it is assumed that the petitioner, who was an accused in custody, Crl.M.C. No.1723/23 **-:** 7 **:-** was served with only notice of the application for cancellation, the fact that in the objections the learned counsel had specifically controverted the allegations in the application for cancellation of bail, it is presumed or in fact deemed that the petitioner was served with the application for cancellation of bail apart from the notice. 10. In the decision in **XI Victim's case** (supra) a learned single Judge of this Court had held that “ _in a case where the victim or the witnesses specifically complains of threat and intimidation and the said aspects are projected either by the victim or by the prosecution before the Bail Court through an application as referred to in Ext.P-5, then it is bounden duty of the Bail Court to consider the correctness or otherwise of the allegations in a summary manner after affording an opportunity of being heard to the prosecution as well as to the affected accused concerned whose bail is ought to be cancelled and if possible to the victim as well, in a case like this. In such process of enquiry, the Bail Court could call for the records if any, in relation to those allegations and if a separate crime has been registered in that regard, the records in those crimes should also be perused by the Bail Court in order to make an enquiry in a summary manner as to the truth or otherwise of the allegations therein, and_ Crl.M.C. No.1723/23 ## **-:** 8 **:-** _after affording reasonable opportunity of being heard to the prosecution, accused and the victim, the Bail Court is expected to discharge its solemn duty and function to decide on the correctness or otherwise of the allegations in such a summary manner and the evidentiary assessment thereof could be on the basis of the overall attendant circumstances as well as the attendant balance of probabilities of the case. Based on such a process, the Bail Court is obliged to take a decision whether the bail conditions have been so violated and if it so found that the bail conditions has been violated, then it is the duty of the Bail Court to cancel the bail, but certainly after hearing the affected party as aforestated. So also, if the said enquiry process reveals that the truth of the above said allegations has not been established in a convincing manner in such enquiry process, then the Bail Court is to dismiss the application to cancel the bail. But the Bail Court cannot evade from the responsibility by taking up this specious plea that since the very same allegations also forms subject matter of a distinct crime then the truth or otherwise of the allegations is to be decided by the Criminal Court which is seisin of that crime through the process of finalisation of the said impugned criminal proceedings by the conduct and completion of trial therein._ “ 11. On a reading of the above decision, it is evident that a court called upon to cancel the bail already granted must of Crl.M.C. No.1723/23 **-:** 9 **:-** course carry out a summary enquiry to ascertain whether the allegations raised as a ground to cancel the bail are correct based upon an overall balance of probabilities of the case or whether it is raised only as a ruse to cancel the bail. It is also relevant to observe that the learned single Judge had specifically mentioned that the said enquiry in such a manner is to be required in a case that arose therein. 12. It is also relevant to note that this Court had in **Renjith v. State of Kerala** (2023 (2) KHC 310) held that a mere registration of a subsequent crime against the accused by itself cannot result in an automatic cancellation of bail as it is only an indication of an allegation of a complaint of the accused having been involved in a subsequent crime. The possibility of false accusation, the nature of the subsequent offence, the persons against whom the offence is alleged to have been committed, the stage of the case where the cancellation is sought and the proximity of time within which the subsequent offence is alleged, also matters to be considered. It is also observed that every case presents a unique situation and close scrutiny ought to be indulged in to identify whether there are Crl.M.C. No.1723/23 **-:** 10 **:-** ## overwhelming circumstances present to cancel the bail. 13. With the aforesaid principles in mind, when the facts of the present case are appreciated and the impugned order is scrutinised, it is evident that the learned Magistrate has carried out the summary enquiry as contemplated in law in the peculiar facts of the present case. Unlike the case in the judgment in **XI Victim's case** (supra) where only threat and intimidation was raised as a ground to register a subsequent crime and to seek cancellation of bail, in the present case, the petitioner, as the first accused, is alleged to have brutally assaulted the victim with a freewheel inflicting severe injuries on the head and on the forehead requiring 28 and 19 stitches respectively. The petitioner is alleged to have attempted to commit the murder of the victim in the second crime unlike in the case of **XI Victim's case** (supra) where cancellation was sought on the basis of an allegation of threat and intimidation for which the second crime was registered. Apart from the above, the second crime is alleged to have been committed within 9 days of the grant of bail in the first crime. This crucial aspect regarding the proximity of the alleged commission of the subsequent crime cannot be Crl.M.C. No.1723/23 **-:** 11 **:-** ignored, as it amply indicates the defiance of the conditions imposed by this Court while granting bail. The learned Magistrate has specifically considered the said aspect also. 14. In this context, it is relevant to notice that even the summary enquiry contemplated and mentioned earlier has been carried out by the learned Magistrate before cancelling the bail since the learned Magistrate has taken note of the manner in which the subsequent crime was committed, the date on which it was committed, the details including that the petitioner is arrayed as the first accused and had also called for the records of the earlier crime. Thus, it is evident that the present case reveals a peculiar situation. The conduct of the petitioner in failing to appear before the Investigating Officer, as directed, entered into Sasthamcottah Police Station and committed another offence within 9 days of the grant of bail are in defiance of the conditions imposed while granting bail. All these circumstances justify the finding of the learned Magistrate that bail is required to be cancelled. 15. In the above circumstances, I find that the order of the learned Magistrate cancelling the bail is legal and proper and no Crl.M.C. No.1723/23 **-:** 12 **:-** grounds exist to take a different view. Accordingly, this Crl.M.C. is dismissed. **Sd/-** **BECHU KURIAN THOMAS JUDGE** vps Crl.M.C. No.1723/23 ## **-:** 13 **:-** ## **`APPENDIX`** ``` PETITIONER'S/S' ANNEXURES ANNEXURE A1THECOPYOFTHEORDERIN B.A.NO.7367/2022 DATED 20.12.2022 OF THE HON'BLE HIGH COURT OF KERALA ANNEXURE A2THE COPY OF THE BAIL CANCELLATION PETITION FILED BY THE STATION HOUSE OFFICER, SASTHAMCOTTAH POLICE STATION DATED 04.01.2023 ANNEXURE A3THE COPY OF THE STATEMENT OF OBJECTION FILED BY THE PETITIONER DATED 09.02.2023 ANNEXURE A4THE CERTIFIED COPY OF THE ORDER IN C.M.P.NO.84/2023 DATED 22.02.2023 OF JUDICIAL MAGISTRATE OF THE FIRST CLASS (TEMPORARY), SASTHAMCOTTAH ANNEXURE A5THE COPY OF THE ORDER IN B.A.NO.512/2023 DATED 21.02.2023 ANNEXURE A6THE COPY OF THE NOTICE DATED 06.01.2023 ISSUED BY THE JUDICIAL FIRST CLASS MAGISTRATECOURT(TEMPORARY) SASTHAMCOTTAH AND SERVED ON THE PETITIONER ON 07.01.2023 ```