Kerala High Court
Baburaj vs State Of Kerala on 20 February, 2025
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
Thursday, the 20th day of February 2025 / 1st Phalguna, 1946
CRL.M.APPL.NO.1/2024 IN BAIL APPL. NO. 1319 OF 2023
CRIME NO.93/2023 OF SHORNUR POLICE STATION, PALAKKAD
PETITIONER/RESPONDENT:
1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, PIN-682031.
2. THE SUB INSPECTOR OF POLICE, SHORNUR POLICE STATION, SHORNUR P.O.,
PALAKKAD DISTRICT, PIN-679121.
RESPONDENTS/PETITIONERS:
BABURAJ, AGED 34 YEARS, S/O. RAMAN, MELEPURATH VEEDU, GURUDEVA
NAGAR, VADANAMKURUSSI P.O., SHORNUR, PALAKKAD DISTRICT, PIN-679124.
Petition praying that in the circumstances stated therein the High
Court be pleased to Cancel the Bail granted in BA No.1319/2023 in Crime
No.93/2023, Shornur Police Station, Palakkad.
This Petition coming on for orders upon perusing the application and
this Court's Order dated 21/03/2023 and upon hearing the arguments of
PUBLIC PROSECUTOR for the petitioners and of M/S. O.V. MANIPRASAD, JOSE
ANTONY & HARIKRISHNAN P., Advocates for the respondent, the court passed
the following:
A.BADHARUDEEN, J.
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Crl.M.A.No.1 of 2024
in
B.A.No.1319 of 2023
------------------------------------------
Dated this the 20th day of February, 2025
ORDER
This is a petition filed by the State of Kerala represented by the Pubic Prosecutor, High Court of Kerala representing the Sub Inspector of Police, Shornur Police Station with prayer to cancel the bail granted to the respondent herein/1st accused as per order in B.A.No.1319/2023 in Crime No.93/2023 of Shornur Police Station, Palakkad on the allegation that the 1 st accused violated condition No.5 in the bail order.
2. While granting bail to the 1st accused in this crime, the 5th condition imposed by this court reads as under:
v. The petitioner shall not involve or indulge in any other offence, during the currency of bail hereby granted and any such involvement, if reported, or came to the notice of this court, the same alone shall be a ground to cancel the bail.Crl.M.A.No.1 of 2024
in B.A.No.1319 of 2023 2
3. It is submitted that while enjoying the benefit of bail granted to the 1st accused in this case, the 1st accused involved in O.R.No.04/2024 of Shornur Police Station, Palakkad, where he alleged to have committed offences punishable under Sections 20(b)(ii)(B) and 22(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the NDPS Act' hereinafter) and thereby, the 5th condition was violated which would warrant cancellation of his bail.
4. The learned counsel for the respondent herein/1st accused appeared and filed a detailed objection. It is pointed out that in Crime No.93/2023 of Shornur Police Station, Palakkad, the respondent herein/1st accused alleged to have committed offences punishable under Sections 341, 323, 326 and 427 r/w Section 34 of the Indian Penal Code (for short, 'the IPC' hereinafter). The respondent herein who got arrayed as the 1st accused, was granted bail after prolonged detention for 50 days. Thereafter, final report also filed and the matter has been pending as C.C.No.652/2023. The main contention raised is that the Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 3 present application for cancellation of bail filed alleging that the accused involved in O.R.No.04/2024 of Shornur Police Station, Palakkad, where he alleged to have committed offences punishable under Sections 20(b)(ii)(B) and 22(b) of the NDPS Act. But in the said crime, the respondent herein is not an accused. At the same time, O.R.No.04/2024 of Shornur Police Station, Palakkad also not registered for the offences under Sections 20(b)(ii)(B) and 22(b) of the NDPS Act. Therefore, the grounds urged to cancel the bail is absolutely an erroneous submission.
5. The learned Public Prosecutor placed the records of NDPS Crime No.04/2024 of Pattambi Excise Range Office wherein the respondent herein was arrayed as the accused on the allegation that he possessed 5.150 kg of Ganja and 38.856 g of Methamphetamine. The learned Public Prosecutor also placed FIR and other records in Crime No.717/2024 registered on 8.11.2024 wherein also the respondent herein is arrayed as the accused alleging commission of offence punishable under Section 20(b)(ii) (B) of the NDPS Act.
Crl.M.A.No.1 of 2024in B.A.No.1319 of 2023 4
6. The learned counsel for the respondent herein/1 st accused would submit that for the reasons stated in the petition, this petition could not be allowed, since the crime number referred in the petition is wrong. The learned counsel has placed decision in Sreeja Mannangath v. State of Kerala reported in [2022 (7) KHC 109] contending that in the present case, bail cancellation is not liable to be allowed.
7. In this matter, undisputedly, the respondent herein/1st accused who initially involved in Crime No.93/2023 of Shornur Police Station, Palakkad, where he alleged to have committed offences punishable under Sections 341, 323, 326 and 427 r/w Section 34 of the IPC, was released on bail as per order in B.A.No.1319/2023. The grievance of the prosecution at present is that while enjoying the benefit of bail, the respondent herein/1 st accused involved in O.R.No.04/2024 of Shornur Police Station, Palakkad alleging commission of offences under Sections Sections 20(b)(ii)(B) and 22(b) of the NDPS Act. In the objection filed by the respondent herein/1 st accused, Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 5 he emphatically denied his involvement in O.R.No.04/2024 of Shornur Police Station, Palakkad and he has been specifically contended that FIR No.04/2024 of Shornur Police Station, Palakkad is registered against one Vysagh K.P. for the offences punishable under Section 279 of the IPC and Section 185 of the Motor Vehicles Act.
8. On perusal of the case diary placed by the learned Public Prosecutor pertaining to NDPS Crime No.04/2024 of Pattambi Excise Range Office, it is discernible that the case subsequently involved by the respondent herein/1st accused on 20.3.2024 is registered by Excise Range, Pattambi and not by Shornur Police Station, Palakkad. But the allegation therein is that the respondent herein/1st accused was red-handedly arrested along with 5.150 kg of Ganja and 38.856 g of Methamphetamine. Thus, it is discernible that even though in the petition the police station stated as incorrect, NDPS Crime No.04/2024 registered by Excise Range Office, Pattambi is the crime subsequently the respondent herein/1st accused involved. It is relevant to note further that the learned Public Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 6 Prosecutor also produced FIR No.717/2024 of Shornur Police Station where also the second crime registered against the respondent herein/1st accused under Section 20(b)(ii)(B) of the NDPS Act on the allegation that at about 9.30 a.m. on 8.11.2024, the respondent herein possessed 12.604 kg of Ganja. It appears that even though the crime number noted in the petition citing involvement of the respondent herein/1st accused in the subsequent crime is mistaken, his involvement in NDPS Crime No.04/2024 of Excise Range, Pattambi, is established by production of the case diary by the learned Public Prosecutor. That apart, again he involved in another serious crime vide Crime No.717/2024 of Shornur Police Station.
9. Insofar as the legal question as to whether what are the contingencies under which bail can be cancelled, the law is well settled. In the decision reported in [2022 (7) KHC 109 : 2022 KHC OnLine 883 : 2022(6) KLT OnLine 1129], Sreeja Mannangath v. State of Kerala, this Court considered the parameters governing Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 7 cancellation of bail referring the decisions of the Apex Court and observed in paragraph Nos. 8 to 15 as under:
"8. In the latest decision of the Apex Court reported in (2022 KHC 6496: 2022 (2) KLD 49 :
2022 KHC OnLine 6496 : 2022 SCC OnLine SC 552 : 2022 (7) SCALE 411 : AIR 2022 SC 2183), P. v. State of Madhya Pradesh and Another, three bench decision of the Apex Court considered some of the circumstances where bail granted to the accused can be cancelled under S.439(1) of the Cr.P.C.. It has been held as under:
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 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.Crl.M.A.No.1 of 2024
in B.A.No.1319 of 2023 8 We may clarify that the aforesaid list is only illustrative in nature and not exhaustive.
9. The learned counsel for the second respondent placed a decision of this Court reported in (2022 (4) KLJ 150), Godson (Represented by, M. H. Hanis (Adv.) v.
State of Kerala (Represented by, Prasanth M. P. (Sr.PP) & C. S. Hrithwik (Sr.PP), to contend that mere violation of the condition of bail not to involve in similar offences during the period of bail is not sufficient to cancel the bail granted by the Court. In Godson's case (supra), this Court considered the decision of the Apex Court in Dolat Ram and Others v. State of Haryana, 1995 (1) SCC 349 : 1994 ICO 4306, Dataram Singh v. State of Uttar Pradesh, 2018 (3) SCC 22 : 2018 ICO 103 and in X1, Victim SC No.211 of 2018 of POCSO Court v. State of Kerala and Others, 2019 (3) KHC 26 :
2019 ICO 809.
10. In Dolat Ram's case (supra), the Apex Court has observed as follows:
"Rejection of bail in a non -
bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 9 necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 10 distinction of the factors relevant for rejecting bail in a non - bailable case in the first instance and the cancellation of bail already granted."
Thus, it is clear that abuse of concessions granted to the accused in any manner is a ground to cancel the bail.
11. In Dataram Singh's case (supra), it was observed by the Apex Court in the manner as follows:
It is also relevant to note that there is difference between yardsticks for cancellation of bail and appeal against the order granting bail. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail already granted. Generally speaking, the grounds for cancellation of bail are, interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concessions granted to the accused in any manner. These are all only few illustrative materials. The satisfaction of the Court on the basis of the materials placed on record of the possibility of the accused absconding is another reason justifying the cancellation of bail. In other words, bail once granted should not be cancelled in a mechanical manner without considering whether any Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 11 supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.
12. In Dataram Singh's case (supra) also, abuse of concessions granted to an accused in any manner is a ground to cancel the bail.
13. In X1's case (supra), it was observed as under:
"9. But in a case where the victim or the witnesses specifically complains of threat and intimidation and the said aspects are projected either by victim or by the prosecution before the Bail Court through an application as referred to in Ext P5, 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 Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 12 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 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 is 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 Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 13 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 the specious plea that since the very same allegations also form 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 said impugned criminal proceedings by the conduct and completion of trial therein."
14. In P. v. State of Madhya Pradesh's case (supra), the Apex Court referred the earlier decisions inclusive of Dolat Ram's case (supra). But the said decision in Dataram Singh's case (supra) was not considered. In fact, the judgment in Dataram Singh's case (supra) was rendered by a two Bench of the Apex Court. Similarly, the judgment in Dolat Ram's case (supra) also was rendered by two Bench of the Apex Court.
15. When the three Bench decision of the Apex Court in P. v. State of Madhya Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 14 Pradesh's case (supra) held that misuse of liberty by the accused by indulging in similar / other criminal activity is a reason for cancellation of bail, the said ratio shall be the binding precedent. It is true that in Godson's case (supra), the judgment was rendered by this Court on 10/08/2022 and during the relevant time also, the decision in P. v. State of Madhya Pradesh's case (supra) rendered on 05/05/2022 would holdthe field. Therefore, the ratio in P. v. State of Madhya Pradesh's case (supra) rendered by the three Bench of the Apex Court shall govern the principles regarding cancellation of bail. The ratio has been followed in another three Bench decision reported in (2022 KHC 6591), Deepak Yadav v. State of Uttar Pradesh and Another. Since the law is settled as discussed above, it has to be held that, if the accused misuses his liberty by indulging in similar/other criminal activity violating condition/conditions imposed in the bail order, the same is a supervening circumstances to cancel the bail."
Crl.M.A.No.1 of 2024in B.A.No.1319 of 2023 15
10. Recently, in the decision reported in [2024 KHC OnLine 6302 : 2024 INSC 438 : 2024 LiveLaw (SC) 392], Ajwar v. Waseem, the Apex Court considered this question after referring its earlier judgments and affirmed the principles in paragraph Nos.27 and 28 as under:
"27. It is equally well settled that bail once granted, ought not to be cancelled in a mechanical manner. However, an unreasoned or perverse order of bail is always open to interference by the superior Court. If there are serious allegations against the accused, even if he has not misused the bail granted to him, such an order can be cancelled by the same Court that has granted the bail. Bail can also be revoked by a superior Court if it transpires that the courts below have ignored the relevant material available on record or not looked into the gravity of the offence or the impact on the society resulting in such an order. In P v. State of Madhya Pradesh and Another(supra) decided by a three judges bench of this Court [authored by one of us (Hima Kohli, J)] has spelt out the Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 16 considerations that must weigh with the Court for interfering in an order granting bail to an accused under S.439(1) of the CrPC in the following words:
"24. As can be discerned from the above decisions, for cancelling bail once granted, the court must consider whether 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 [Dolat Ram v. State of Haryana, 1995 (1) SCC 349 : 1995 SCC (Cri) 237]. To put it differently, in ordinary circumstances, this Court would be loathe 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."
28. CONSIDERATIONS FOR SETTING ASIDE BAIL ORDERS Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 17 The considerations that weigh with the appellate Court for setting aside the bail order on an application being moved by the aggrieved party include any supervening circumstances that may have occurred after granting relief to the accused, the conduct of the accused while on bail, any attempt on the part of the accused to procrastinate, resulting in delaying the trial, any instance of threats being extended to the witnesses while on bail, any attempt on the part of the accused to tamper with the evidence in any manner. We may add that this list is only illustrative and not exhaustive. However, the court must be cautious that at the stage of granting bail, only a prima facie case needs to be examined and detailed reasons relating to the merits of the case that may cause prejudice to the accused, ought to be avoided. Suffice it is to state that the bail order should reveal the factors that have been considered by the Court for granting relief to the accused."
11. Thus, the legal position is well settled. When a Court grants bail after imposing conditions, violation of any of the conditions in a bail order would lead to cancellation Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 18 of bail by invoking power under Section 439 (2) of the Cr.P.C. Section 439 (2) of the Cr.P.C reads as under:
"439. Special powers of High Court or Court of Session regarding bail. xxxx xxxx xxxx (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody. "
12. It is true that, even though involvement of another crime by misusing the liberty granted to a person who has granted bail itself is a reason to cancel the bail, while considering the plea to cancel bail, the court has to look into whether the second crime was registered merely on false allegations with an ulterior motive to implicate the petitioner in a crime to hold that he violated any of the conditions in the bail order and in consequence thereof, the bail to be cancelled.
13. In the instant case, the respondent herein/1 st accused, who was granted bail in this crime with specific condition that he should not involve or indulge in any Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 19 other offence, during the currency of bail granted and any such involvement, if reported, or came to the notice of this Court, the same alone shall be a ground to cancel the bail, now involved in two crimes under the NDPS Act. Condition No.5 carries two parts and the first part is cancellation of bail when involvement of any other offence is reported.
14. In the instant case, even though the crime number reported by the learned Public Prosecutor is mistaken, the second part of the bail condition is clear on the point that, if the petitioner would involve or indulge in any other offence and the same would be noticed by this Court, the same alone shall be a ground to cancel the bail.
15. Going by the two crimes the respondent herein/1st accused got involved, it could not be held that the same are namesake crimes so that the respondent herein/1 st accused was implicated. In the said crimes, the respondent herein/1st accused was arrested red-handedly along with intermediate quantity of contraband and prima facie his involvement is established. Therefore, the bail granted to Crl.M.A.No.1 of 2024 in B.A.No.1319 of 2023 20 the respondent herein/1st accused sought to be cancelled at the instance of the prosecution, is liable to be cancelled.
16. Accordingly, the bail granted to the respondent herein/1st accused in Crime No.93/2023 of Shornur Police Station, Palakkad and the bail bond executed by him are cancelled with direction to the respondent herein/1 st accused to surrender before the trial court concerned, within seven days, if he is continuing on bail.
Since it is submitted that the respondent herein/1 st accused has been in custody, the trial court concerned is directed to issue production warrant and detain the respondent herein/1st accused in custody, in consequence of cancellation of his bail by virtue of this order, without fail.
Registry is directed to forward a copy of this order to the trial court concerned, forthwith.
Sd/-
A. BADHARUDEEN JUDGE Bb