XXXX v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA WEDNESDAY, THE 10[TH] DAY OF NOVEMBER 2021 / 19TH KARTHIKA,** ## **1943** **CRL.MC NO. 4073 OF 2021** **CRIME NO.775/2021 OF Nedumangad Police Station,** **Thiruvananthapuram** ## **PETITIONER/ACCUSED** XXXX BY ADVS. M.SANTHI (K/868/2011) G.RANJU MOHAN ## **RESPONDENT/COMPLAINANT** STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, NEDUMANGAD POLICE STATION, THIRUVANANTHAPURAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNKAULAM-682 031 PP SRI.SANGEETHA RAJ N.R. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.10.2021, THE COURT ON 10.11.2021 DELIVERED THE FOLLOWING: **-2-** ## **CRL.M.C.4073/21** ## ORDER ## Dated : 10[th] November, 2021 1. This Crl.M.C has been filed against the order in Crl.M.P.614/2021 in Crime No.775/2021 of Nedumangad police station by which the order of bail granted to the petitioner as per order in C.M.P. (T).36/2021 dated 10.6.2021 of Additional District & Sessions Judge For The Trial of Cases Relating to Atrocities And Sexual Violence Against Women and Children, Thiruvananthapuram has been cancelled. 2. Petitioner is the sole accused in the above crime and he has been arrested and remanded on 13.4.2021 and was released on bail as per per order dated 10.06.2021. The offence alleged against the petitioner is under Section 354 (A) (1) (l), 451 of IPC and Section 8 read with Section 7 of Protection of Children from Sexual Offences Act 2012. 3. The bail order granted to the petitioner was cancelled alleging that on 18.6.2021 the petitioner trespassed in to the house of victim girl armed with dangerous weapons and threatened the victim girl and her mother stating that he will kill them if they will not give evidence in his favour. So Crime No. 2022/201 was registered against the petitioner under Section 195A, 294(b), 452 and 506(ii) of IPC. Annexure-2 is the copy of that **CRL.M.C.4073/21** **-3-** FIR. The court below as per the impugned order cancelled the bail finding that there is violation of condition Nos.(d), (e) and (f) in the bail order. According to the petitioner he has been falsely implicated in the Crime 2022/2021 due to previous animosity of the police. He neither trespassed into the house nor threatened the victim as alleged. Hence he seeks for setting aside cancellation of the bail order. 4. Notice was issued to the respondent . Heard both sides. Matters to be followed while exercising the powers under Section 439(2) to cancel the bail has been enumerated in **Abdul Basit @ Raju and Others v. Md.Abdul Kadir Chaudhary and Another (2014 (10) SCC 754 = 2014 KHC 4678).** Paragraph 18 of the said decision is relevant in this context to be extracted which reads as follows : - “18. Under Chapter XXXIII, Section 439(1) empowers the High Court as well as the Court of Session to direct any accused person to be released on bail. Section 439(2) empowers the High Court to direct any person who has been released on bail under Chapter XXXIII of the Code be arrested and committed to custody, i.e., the power to cancel the bail granted to an accused person. Generally the grounds for cancellation of bail, broadly, are, (i) the accused misuses his liberty by indulging in similar criminal activity, (ii) interferes with the course of investigation , (iii) attempts to tamper with evidence or witnesses, (iv) threatens witnesses or indulges in similar activities which would **-4-** ## **CRL.M.C.4073/21** hamper smooth investigation, (v) there is likelihood of his fleeing to another country, (vi) attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, (vii) attempts to place himself beyond the reach of his surety, etc. These grounds are illustrative and not exhaustive. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in sixty days after the defect is cured by the filing of a chargesheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. However, in the last mentioned case, one would expect very strong grounds indeed. (Raghubir Singh and Ors. etc. v. State of Bihar, 1987 CriLJ.157)” 5. In Paragraph 20 of the above decision scope of Section 439(2) considered in **Gurcharan Singh and Others v. State (Delhi Administration) (1978 (1) SCC 118 = 1978 SCC** ## **(Cri) 41: 2014 KHC 4678)** . I”20. in Gurcharan Singh case (supra) this Court has succinctly explained the provision regarding cancellation of bail under the Code, culled out the differences from the Code of Criminal Procedure, 1898 (for short “the old Code”) and elucidated the position of law vis-à-vis powers of the courts granting and cancelling the bail. This Court observed as under: “16. Section 439 of the new Code confers special powers on the High Court or Court of Session regarding bail. This was also the position under section 498 Cr.P.C of the old code. That is to say, even if a Magistrate refuses to grant bail to an **-5-** ## **CRL.M.C.4073/21** accused person, the High Court or the Court of Session may order for grant of bail in appropriate cases. Similarly under Section 439(2) of the 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, Section 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 Section 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 Section 439(2) **.** Under Section 439(2) of the new Code a High Court may commit a person released on bail under Chapter XXXIIL 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 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 Section 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 **-6-** ## **CRL.M.C.4073/21** 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-à-vis the High Court.” ## 6. In **Somesh Chaurasia v. State of M.P. and Anr. (AIR 2021** ## **SC 3563 :** paragraph 36 is also relevant which reads as follows: 7. “This Court in Abdul Basi v. Abdul Kadir Choudhary, while discussing the powers of the High Court to cancel bail granted to an accused under Section 439(2) of the Cr.P.C has observed that typically the following conduct of the accused would result in the cancellation of bail - (I) misuse of liberty by engaging in similar criminal activity; (ii) interference with the course of investigation; (iii) tampering of evidence or witnesses; (iv) threatening of witnesses or engaging in similar activities which would hinder the investigation (v) possibility of fleeing to another country; (vi) attempts to become scarce by becoming unavailable for investigation or going underground; and (vii) being out of the reach of their surety. Similar considerations govern the cancellation of bail at the post-conviction stage under the second proviso to Section (1) of the Cr.P.C. this Court in Pampapathy v. State of Mysore, had held that the High Court had the power to revoke the suspension of sentence granted under subsections (1) and (2) of Section 426 of the erstwhile Code of Criminal Procedure, 1898 (“CrPC, 1898”) using its inherent powers under Section 561-A of the CrPC, 1898. The accused were alleged to have misused their liberty while their sentence was suspended. Sub-sections (1) and (2) of Section 426 of the CrPC, 1898 are similar to Section 389(1) of the present CrPC. It may be noted that in Pamapathy (supra) the issue of cancellation of bail of a convict, by taking recourse **CRL.M.C.4073/21** **-7-** to Section 561-A of the CrPC, 1898 arose because the second proviso which, now has been added to sub-section (1) of Section 389 CrPC did not exist under the earlier legal framework. However isnce the second proviso to sub section (1) of Section 389 CrPC now, deals with the cancellation of bail no inherent power, would be required for revocation of suspension of sentence and bail granted to a convicted person, during the pendency of appeal at the appellate court.” 8. The bail order granted to the petitioner was cancelled for the alleged violation of condition Nos.(d), (e) and (f). Condition No. - (d), (e), and (f) in the bail order reads as follows: “d) The petitioner shall not involve in any other offences while on bail. e) The petitioner shall not enter into the limits of the ward wherein victim resides. f) The petitioner shall not influence the victim and other witnesses or tamper with the evidence”. 9. At the time of argument, the learned counsel for the petitioner vehemently contended that no such incident as alleged in Crime No.2022/2021 had occurred. Since the incident alleged to have occurred while the Covid-19 Pandemic was in the hike, according to him, no shops were opened and hence the case of the prosecution that the people in the neighbouring shops rushed to the house of the victim on hearing the alarm are **CRL.M.C.4073/21** **-8-** false and concocted. In view of the specific contentions raised by the counsel for the petitioner, the learned Public Prosecutor was directed to produce records pertaining to the new crime of Nedumangad Police Station and also the statement of the witnesses as per order dated 10.6.2021. Copy of the FIR and connected records in the crime has been produced and it would go to show that the statement of neighbours and also another person who is conducting a shop in the neighbourhood were recorded. Apart from that statement of the victim and mother of the victim also have been recorded and produced and they have stated in corroboration about the alleged incident of trespass of the accused into the house of the victim on the alleged day. Though the learned counsel for the petitioner would contend that the statements of the witnesses have been recorded subsequent to the directions of this court, the records in the case would go to show that no statement or records have been received as per order dated 20.10.2021 . So it would go to show that the above statements were already produced along with the copy of the FIR and FIS. So prima facie the materials produced from the side of the respondents would prove that there is violation of the conditions of bail order at the instance of the petitioner. 10. The statement of facts submitted by the S.I. of police in **CRL.M.C.4073/21** **-9-** the above crime would also go to show that the petitioner is involved in 8 other crimes, which are extracted in the order impugned as well as in the report filed by the SHO. So materials produced from the side of the respondent would prima facie establish that there was violation of condition No.(d), (e) and (f) which are extracted in the order impugned and also in the report filed by the S.H.O. 11. When there are materials to establish that accused threatens the witnesses or indulges in similar activities which would hamper smooth investigation, the bail granted to him can be cancelled. 12. So the act on the part of the learned Additional Sessions Judge cancelling bail of the petitioner does not suffer from any illegality or irregularity warranting any interference at the instance of this Court. In the result, Crl.M.C dismissed. Sd/- **M.R.Anitha** **JUDGE** Mrcs/3.11. **-10-** ## **CRL.M.C.4073/21** ANNEXURES Annexure A1 Annexure A2 Annexure A3 TRUE COPY OF FIRST INFORMATION REPORT IN CRIME NO.775/2021 OF THE NEDUMANGADU POLICE STATION TRUE COPY OF THE ORDER DATED 10.06.2021 IN C.M.P.(T) NO.36/2021 ON THE FILE OF THE ADDITIONAL DISTRICT COURT FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN, THIRUVANANTHAPURAM TRUE COPY OF THE ORDER DATED 26.07.2021 IN CRL.M.P.NO.614/2021 ON THE FILE OF THE ADDITIONAL DISTRICT COURT FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN, THIRUVANANTHAPURAM