Accused in a POCSO case challenged cancellation of his bail, contending he never breached conditions not to contact the victim. The High Court found prima facie violation of the bail condition and upheld cancellation, dismissing the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Crl.M.C.No.4036 of 2024 :1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 17TH DAY OF JULY 2024 / 26TH ASHADHA, 1946
CRL.MC NO. 4036 OF 2024
CRIME NO.544/2023 OF VALLIKUNNAM POLICE STATION, ALAPPUZHA
ORDER DATED 24.02.2024 IN CRL.MP NO.146 OF 2024 OF FAST TRACK SPECIAL COURT, CHENGANNUR ARISING OUT OF THE ORDER IN SC NO.1208 OF 2023 OF FAST TRACK SPECIAL COURT, CHENGANNUR
PETITIONER/ACCUSED:
SALIM AGED 31 YEARS S/O MADHAVAN, ENNAMBISHERIL HOUSE, VALLIKUNNAM, MAVELIKARA, ALAPPUZHA, PIN – 690501
BY ADVS.SRI.R.HARIKRISHNAN (KAMBISSERIL) SRI.NEERAJ NARAYAN
RESPONDENT/STATE:
STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031
BY SENIOR PUBLIC PROSECUTOR SRI.RENJIT GEORGE
THIS CRIMINAL MISC. CASE HAVING BEEN FIANLLY HEARD ON 17.07.2024,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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ORDER
Dated this the 17th day of July, 2024
The sole accused in SC No.1208/2023 on the files of Special Court for the trial of cases under Protection of Children from Sexual Offences Act, 2012(for short 'the POCSO Act'), Chengannur has filed this petition under Section 482 of the Code of criminal Procedure, 1973 (for short the Cr.P.C.) challenging Annexure-A5 order in Crl.M.P.No.146/2024 dated 24.02.2024 whereby the learned Special Judge cancelled the bail granted to the petitioner finding that he had violated the conditions of the bail order subsequently. The specific allegation is that the accused repeatedly followed the victim directly with sexual intent, caused fear to her and attempted to contact her to foster personal interaction repeatedly.
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attempting to contact the victim at the instance of the petitioner now alleged as the ground for cancelling the bail are false. According to him, the petitioner attempted to commit suicide as evident from Annexure-A2, Emergency Department of OP Ticket issued from Government T.D. Medical College Hospital, Alappuzha dated 16.01.2024 and the allegations led to cancellation of the bail has been raised after the said attempt. Highlighting that the petitioner did not violate the condition of the previous bail order, the learned counsel pressed for setting aside Annexure-A5 order and to allow the petitioner continue on bail, already granted.
and he has involvement in nine other crimes as stated as under:
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bail holding that the petitioner violated the bail conditions so as to go for the harsh order of cancellation of bail.
“8. In so far 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 112 9], Sreeja Mannangath v. State of Kerala , this Court considered the parameters governing s cancellation of bail referring the decision of the Apex Court and observed in paragraphs 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
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j) If any facts may emerge after the grant of bail which are considered unconducive to a fair trial. 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
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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 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
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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 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
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words, 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.
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 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
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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 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.”
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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 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 hold the 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.”
9 . 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
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judgments and affirmed the principles in paragraphs 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 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
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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
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.”
10. 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 of bail by invoking power under Section 439 (2) of Cr.P.C. Section 439 (2) Cr.P.C
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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. "
Having gone through the facts of the case, the Special Judge cancelled the bail of the petitioner on the finding that he had violated the condition of bail and in such a case cancellation of bail is fully justified. In view of the matter, Anenxure-A5 order cancelling
bail of the petitioner does not require any interference.
Accordingly, the Crl.M.C. stands dismissed.
Sd/-
A.BADHARUDEEN
JUDGE
MJL
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APPENDIX OF CRL.MC 4036/2024
| PETITIONER'S ANN | EXURES: | ||||
|---|---|---|---|---|---|
| Annexure A1 | THE | TRUE | COPY | OF TOKEN IS | SUED FROM THE |
| VAND ALAP |
ANAM PUZHA |
T.D DATED |
MEDICAL COL 16.01.2024 |
LEGE HOSPITAL | |
| Annexure A2 | THE | TRUE | COPY O | F THE EMERGE | NCY DEPARTMENT |
| OP MEDI 16.0 |
TICKE CAL 1.202 |
T ISSU COLLEGE 4 |
ED FROM THE HOSPITAL A |
VANDANAM T.D LAPPUZHA DATED |
|
| Annexure A3 | THE 05.0 VALL |
TRU 2.202 IKUNN |
E COPY 4 FILED AM |
OF THE BY STATION |
REPORT DATED HOUSE OFFICER |
| Annexure A4 | THE | TRUE | COPY | OF THE OBJEC | TION FILED BY |
| THE | PETI | TIONER | BEFORE TH | E FAST TRACK | |
| SPEC DIVI |
IAL SION |
JUDGE ALAPPUZ |
, CHENGANN HA) |
UR (SESSION |
|
| Annexure A5 | ACCU | SED C | OPY OF | ORDER DATED | 24.02.2024 IN |
| CRL | M.P | NO.146 | IN 2024 IN | S.C NO.1208 OF | |
| 2023 CHEN |
, O GANNU |
F FAST R (SESS |
TRACK SP ION DIVISION |
ECIAL JUDGE, ALAPPUZHA) |
RESPONDENT'S ANNEXURES: NIL
/TRUE COPY/
PA TO JUDGE
2 issues framed by the court
Whether bail validly cancelled after the accused violated the condition of not contacting the victim.
Should the Special Judge's cancellation order under S.439(2) Cr.P.C. be interfered with under S.482 Cr.P.C.
Colour shows how this judgement treated each authority
Sobhin Sunny v. State of KeralaRelied on¶6
Sobhin Sunny v. State of Kerala [2024 KHC Online 408]
Ajwar v. WaseemRelied on¶9
[2024 KHC OnLine 6302 : 2024 INSC 438 : 2024 LiveLaw (SC) 392], Ajwar v. Waseem · Who else cites this
2 provisions across 1 enactments
Salim
State of Kerala
A. Badharudeen
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