Kerala High Court
Hamza M.K vs State Of Kerala on 1 August, 2025
Author: V.G.Arun
Bench: V.G.Arun
2025:KER:57739
CRL.MC NO. 4698 OF 2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 1ST DAY OF AUGUST 2025 / 10TH SRAVANA, 1947
CRL.MC NO. 4698 OF 2025
CRIME NO.1044/2023 OF KONDOTTY POLICE STATION, MALAPPURAM
PETITIONER:
HAMZA M.K
AGED 40 YEARS
S/O.MUHAMMED M.K,MANGATTUCHALI,
KOLATHODI HOUSE, VETTUKADU,
OLAVATTUR P.O, KONDOTTY
MALAPPURAM DISTRICT., PIN - 673738
BY ADV SHRI. SAYED MANSOOR BAFAKHY THANGAL
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE SUB INSPECTOR OF POLICE
KONDOTTY POLICE STATION,
MALAPPURAM., PIN - 673638
BY SRI. AJITH MURALI, PP.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
01.08.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
2025:KER:57739
CRL.MC NO. 4698 OF 2025
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ORDER
Petitioner is the 1st accused in Crime No.1044 of 2023 registered at the Kondotty Police Station for offences punishable under Sections 364 and 307 r/w Section 34 of IPC. Therein the petitioner was granted bail as per Annexure 2 order, subject to conditions. By condition No.3, the petitioner is restrained from threatening or influencing the material witnesses either directly or indirectly, so as to dissuade them from giving statements or evidence against him. Condition No.4 interdicts the petitioner from getting involved in any other offence while on bail. After one year of his enlargement on bail, the petitioner got implicated as an accused in Crime No.1440 of 2024 registered at the Kondotty Police Station for offences punishable under Sections 331(2), 126(2), 115(2), 74, 76 and 351 of BNS.
2. The crime was registered on the allegation that, with intention to outrage the modesty of the wife of the injured victim in Crime No.1044 of 2023, the petitioner trespassed into 2025:KER:57739 CRL.MC NO. 4698 OF 2025 3 the courtyard of her house, pulled her hair, caught hold of her breast and tore her maxi, thereby outraging the de facto complainant's modesty. By reason of petitioner's involvement in the subsequent crime, the Investigating Officer in the first crime moved an application for cancellation of his bail. The learned Magistrate having allowed the application as per Annexure 4 order, this Crl.M.C is filed.
3. Learned counsel for the petitioner contended that his client was falsely implicated in the subsequent crime with the objective of getting his bail cancelled. It is pointed out that the petitioner was granted bail in the second crime as per Annexure A3 order, and the application for cancellation of bail in the first crime was filed thereafter. Referring to Annexure 3, it is submitted that the Prosecutor did not raise serious objection in granting bail to the petitioner in the second crime. It is contended that bail once granted cannot be cancelled in a casual manner, as has been done by Annexure 4 order. Reliance is placed on the decision of this Court in Godson and Another 2025:KER:57739 CRL.MC NO. 4698 OF 2025 4 v. State of Kerala [2022 KHC 672] to point out that mere violation of bail condition cannot result in automatic cancellation, and for that, the court should be convinced about the intervening circumstances which require denial of the liberty already granted.
4. Learned Public Prosecutor contended that the impugned order warrants no interference inasmuch as the petitioner had committed the second crime with the specific objective of intimidating and threatening the witness from giving evidence in the first crime. It is the contention of the learned Public Prosecutor that even the Supreme Court has held such act to be a valid ground for cancellation of bail.
5. The law is well settled from Dolat Ram (Dolat Ram and Others v. State of Haryana [1995 KHC 3286]) onwards that consideration for grant of bail and its cancellation are entirely different. For cancelling the bail already granted, there should be cogent reasons and intervening circumstances which justify such action.
2025:KER:57739 CRL.MC NO. 4698 OF 2025 5
6. A careful scrutiny of Annexure 4 order shows that apart from finding that the petitioner got involved in another crime and the victim in the subsequent crime is the wife of the injured witness in the first crime, the court below has not even made a prima facie enquiry into the allegations in the second crime. The legal position in this regard is laid down by this Court in XI, Victim SC No.211 of 2018 of POCSO Court v. State of Kerala and Others [2019 (3) KHC 26], the relevant portion of which is extracted below;
" 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.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 2025:KER:57739 CRL.MC NO. 4698 OF 2025 6 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 abovesaid 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 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."
2025:KER:57739 CRL.MC NO. 4698 OF 2025 7
7. I am in respectful agreement with the above observations and the court below having failed to consider the veracity of the allegations, the impugned order cannot be sustained.
In the result, the Crl.M.C is allowed. Annexure 4 order is quashed and the Judicial Magistrate of First Class, Malappuram, is directed to reconsider CMP.No.2161 of 2024 and pass a reasoned order thereon, after affording an opportunity of hearing to the petitioner.
Sd/-
V.G.ARUN JUDGE SPV 2025:KER:57739 CRL.MC NO. 4698 OF 2025 8 APPENDIX OF CRL.MC 4698/2025 PETITIONER'S ANNEXURES ANNEXURE 1 THE COPY OF FIR INCRIME NO.1044 OF 2023 OF KONDOTTY POLICE STATION, MALAPPURAM DISTRICT ANNEXURE 2 THE TRUE COPY OF THE ORDER DATED 02-11- 2023 PASSED IN CRL.M.C NO.1354 OF 2023 BY THE SESSION'S COURT, MANJERI ANNEXURE 3 THE TRUE COPY OF THE ORDER DATED PASSED IN C.M.P NO.2311 OF 2024 BY THE JUDICIAL FIRST CLASS MAGISTRATE COURT, MALAPPURAM ANNEXURE 4 THE TRUE COPY OF THE ORDER DATED 27-12-
2024 PASSED IN C.M.P NO.2161 OF 2024 IN
CRIME NO.1044 OF 2023 IN C.P NO.09 OF
2024 OF KONDOTTY POLICE STATION,
MALAPPURAM DISTRICT
RESPONDENTS' ANNEXURES: NIL
//TRUE COPY//
PA TO JUDGE