Kerala High Court
Shamnad vs State Of Kerala on 26 May, 2025
Author: V.G.Arun
Bench: V.G.Arun
Crl.M.C.No.2297/2025
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947
CRL.MC NO. 2297 OF 2025
AGAINST THE ORDER/JUDGMENT DATED IN CRMP NO.5363 OF
2024 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VII,
ERNAKULAM/ III ADDITIONAL MACT, ERNAKULAM.
PETITIONER:
SHAMNAD
AGED 32 YEARS
S/O SHAHUL HAMEED, THANNITHURAKAL HOUSE,
PALAPETTY KARA, VELIYANGODE VILLAGE, PONNANI
TALUK, MALAPPURAM DISTRICT., PIN - 679579
BY ADVS.
SHRI.K.S.MADHUSOODANAN
SRI.M.M.VINOD KUMAR
SRI.P.K.RAKESH KUMAR
SRI.K.S.MIZVER
SHRI.M.J.KIRANKUMAR
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RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM., PIN - 682031
2 STATION HOUSE OFFICER
VADAKKEKAD PS, ANDATHODE PO,
THRISSUR CITY,KERALA, PIN - 679564
OTHER PRESENT:
SRI. M.C. ASHI, PP.
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 20.05.2025, THE COURT ON 26.05.2025 PASSED THE
FOLLOWING:-
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V.G.ARUN, J
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Crl.M.C.No.2297 of 2025
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Dated this the 26th day of May, 2025
ORDER
The petitioner is the 4th accused in S.C.No.35 of 2022 pending on the files of the Additional Sessions Court-VII, Ernakulam. The case originated from Crime No.33 of 2020 registered by the Anti Terrorist Squad for offences punishable under Sections 120B, 171, 201, 419, 447, 450, 465, 471 and 395 IPC. The crime was registered on the allegation that, based on a conspiracy hatched by the accused, they came to the house of the de facto complainant, at about 01.30 pm on 19.08.2016 and claiming to be officers of the Vigilance Department, committed robbery of 55 sovereigns of gold ornaments, Rs.25,000/-, mobile tabs and mobile phones, under the guise of conducting search and seizure. Crl.M.C.No.2297/2025 4
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2. The petitioner was arrested in connection with the crime on 25.08.2016 and granted bail on 14.12.2016, subject to conditions. Alleging that the petitioner had violated the bail conditions, prosecution moved the jurisdictional court and got his bail cancelled as per order dated 09.01.2019. Consequently, the petitioner was arrested and remanded to custody on 09.04.2021. After dismissing the repeated applications for bail submitted by the petitioner, he was finally granted bail as per Annexure-A1 order dated 07.01.2022, subject to the following conditions;
"(1) Petitioner shall be released on bail on executing a bond for Rs 2,00,000/- with two solvent sureties for the like sum. (2) Petitioner shall surrender his passport, if any, before the court within 7 seven days of his release and if he does not have any passport he shall file an affidavit to that effect within the aforesaid period.
(3) Petitioner shall not leave the State of Kerala without prior permission of the court.
(4) Petitioner shall not contact the witnesses in any manner and shall refrain from influencing or intimidating them. (5) Petitioner shall appear before the court invariably on all posting dates in order to procure his presence during trial. (6) If the petitioner wants to have exemption from appearance on Crl.M.C.No.2297/2025 5 2025:KER:38392 any particular date he shall obtain prior permission of the court before the actual posting date."
3. As the petitioner failed to appear in court after being enlarged on bail, he was initially issued with bailable warrants, followed by non-bailable warrants. The police thereupon reported that the warrants could not be executed as the petitioner had left the State. While so, the petitioner was arrested from Uttar Pradesh on 20.12.2024 in connection with Crime No.821 of 2023 registered at the Vadakkekad Police Station for offences under Sections 143, 147, 148, 341, 323, 324, 326, 307, 294(b), 506 and 149. The petitioner having violated the conditions in the bail order by leaving the State without prior permission and failing to appear in court on the posting dates, the prosecution moved an application for cancelling his bail. By the impugned Annexure-A2 order, the bail granted to the petitioner as per Annexure-A1, was cancelled. Hence, this Crl.M.C.
4. Assailing the order of cancellation, Adv.K.S. Madhusoodanan put forth the following contentions; Crl.M.C.No.2297/2025 6
2025:KER:38392 Consideration of applications for grant of bail and cancellation of bail stands on different footing. Cogent and overwhelming grounds are required to cancel the bail already granted. To buttress the contention, the decisions in CBI, Hyderabad v. Subramani Gopalakrishnan and Another [2011 KHC 4432] and X v. State of Telangana and Another [2018 KHC 6439] are pressed into service. There is no provision for cancellation of bail in the Code of Criminal Procedure or the Bharatiya Nagarik Suraksha Sanhita, 2023. In fact Section 480(5) of BNSS, which is pari materia to Section 439(2) of Cr.P.C, provides only for arrest and committal to custody of the person released on bail. This would indicate that bail cannot be cancelled for the mere asking and the liberty being enjoyed by the accused can be taken away only after hearing him and on being convinced that there are cogent and overwhelming reasons for arresting the accused and committing him to custody.
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5. It is then submitted that the petitioner was compelled to leave the State after being falsely implicated in Crime No.821 of 2023 registered at the Vadakkekad Police Station and on coming to know about the issuance of non-bailable warrant in the subject crime, the petitioner had moved an application for recalling the warrant, which the learned Sessions Judge dismissed illegally.
6. Adv.M.C.Ashi, the learned Public Prosecutor submitted that the court below having shown leniency by granting bail for the second time, in spite of having cancelled the earlier bail for violation of conditions, petitioner should have been extra cautious. Instead, the petitioner committed another heinous crime and violated the bail condition by leaving the State without permission. By such action, the petitioner has demonstrated that he has scant respect for courts and rule of law. In P v. State of Madhya Pradesh [2022 KHC 6496], the Supreme Court has held misuse of liberty, by violating bail condition, as sufficient ground for cancellation of Crl.M.C.No.2297/2025 8 2025:KER:38392 bail. The petitioner is a notorious criminal involved in almost 30 other crimes and, if allowed to roam free, will be a menace to the society.
7. The legal position that consideration for grant of bail and its cancellation are entirely different, and bail can be cancelled only for cogent reasons, needs no reiteration in view of the law declared by the Apex Court through various decisions including Dolat Ram and Others v. State of Haryana [(1995) 1 SCC 349], CBI, Hyderabad (supra) and X v. State of Telangana and Another (supra) etc. It is also the settled position that before cancellation of bail, the accused should be given notice (see Gurudev Singh v. State of Bihar [(2005) 13 SCC 286]).
8. Bail once granted can normally be cancelled only if there is interference or attempt to meddle with the administration of justice, abuse of the concession of bail or when the bail order is found to be perverse and based on irrelevant considerations. As contended by the learned Public Crl.M.C.No.2297/2025 9 2025:KER:38392 Prosecutor, misuse of liberty, by the accused indulging in similar/other criminal activity, is one among the circumstances justifying cancellation of bail enumerated in P. v. State of Madhya Pradesh (supra). In the case at hand, bail granted to the petitioner was once cancelled for violation of the conditions. Even thereafter, indulgence was shown by again granting bail to the petitioner. Once again the petitioner violated the bail conditions by leaving the State without permission and failing to appear in court on the posting dates. Not only that, the petitioner got involved in another heinous crime. The above conduct of the petitioner is nothing but misuse of the liberty granted and disregard to the rule of law.
9. The contention that Section 480(5) of the BNSS or 439(2) of Cr.PC does not provide for cancellation of bail, cannot be countenanced since the provision is intended to empower the court to cancel bail in appropriate cases, although the words "cancellation of bail" is not used in the provision. Crl.M.C.No.2297/2025 10
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10. No doubt, mere violation of bail condition cannot automatically result in its cancellation and the courts are expected to make a prima facie enquiry into the allegations with respect to the second crime by scanning the documents. Here, the factual position is different since the violation is not about the commission of second crime alone, but for having left the State without permission and being absent in court on the posting dates.
For the aforementioned reasons, the Crl.M.C. is dismissed.
sd/-
V.G.ARUN, JUDGE sj Crl.M.C.No.2297/2025 11 2025:KER:38392 APPENDIX OF CRL.MC 2297/2025 PETITIONER ANNEXURES Annexure-A1 TRUE PHOTOCOPY OF THE ORDER OF ADDL.
DISTRICT JUDGE - VII ,ERNAKULAM IN CRL.M.C.NO.2528/2021,DATED 7.01.2022 Annexure-A2 TRUE CERTIFIED COPY OF THE COMMON ORDER IN CRL.M.P.NO.5363/2024 & CRL.M.P.NO.
358/2025 ON THE FILE OF ADDL. DISTRICT & SESSIONS JUDGE- VII ,ERNAKULAM,DATED 11.02.2025 Annexure A3 A TRUE COPY OF THE SAID BAIL ORDER DATED 28.03.2025