Amalsha @ Faizi vs State Of Kerala

A.Badharudeen, J.

This is a petition filed by the 1st accused in Crime No.304 OF 2021 of Sakthikulangara Police Station, now pending as S.C.No.1409/2021 on the file of the Special Court (Additional Sessions Court-IV, Kollam), where he is alleged to have committed offences punishable under Sections 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (`NDPS Act' for short). He impugns order in Crl.M.P.No.165/2022 in Bail (T).No.216/2021 dated 24.5.2022 in the above case, whereby the learned Sessions Judge cancelled the bail granted to the petitioner.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

It is submitted by the learned counsel for the petitioner that Crime No.304/21 of Sakthikulangara Police Station was registered against the petitioner alleging commission of offences punishable under Section 22(b) and 29 of the NDPS Act, where the accused was granted bail on conditions. Thereafter, the prosecution filed present Crl.M.P.No.165/2022 to cancel the bail granted to the accused under Section 439(2) of the Code of Criminal Procedure (hereinafter referred to as `Cr.P.C' for convenience) contending that the petitioner herein violated the bail condition not to involve in other crimes and subsequently the petitioner got involved in 2 more crimes, after granting bail in Crime No.304/2021. The learned Special Judge as per the impugned order cancelled the bail on the finding that the petitioner got involved subsequently in Crime No.7/2022 of Chathannoor Police Station alleging commission of offences punishable under Sections 294(b), 341, 323 and 34 of the Indian Penal Code (hereinafter referred to as `IPC' for short) and also Crime No.63/2022 of Chathannoor Police Station alleging commission of offences punishable under Sections 341, 363, 323, 324 and 308 r/w 34 of IPC.

The learned counsel for the petitioner argued at length to contend that cancellation of the bail is a harsh order, and therefore, the same can be opted only on establishing supervening circumstances. Decision of the Apex Court reported in [AIR 1977 1936], Ram Lakhen v. State of U.P; [2019 (3) KHC 196], Mithun v. State of Kerala; [(2012) 9 SCC 446], Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & anr. and [AIR 1978 SC 961], Administration v. Sanjay Gandhi, [(1995) 1 SCC 349], Dolat Ram & Ors. v. State of Haryana, were highlighted to substantiate the said point.

Whereas it is submitted by the learned Public Prosecutor that the petitioner herein, who is the 1st accused in Crime No.304/2021, on getting released on bail had involved in 2 serious crimes, (as referred herein above) and willfully violated the condition in the bail order and also he was booked under Kerala Anti-Social Activities (Prevention) Act, 2007 (`KAAPA' for short) and was detained in custody due to his continuous involvement in multiple crimes. As such, the Special Court rightly cancelled the bail taking note of the above circumstances and the said order does not require any interference.

The crucial question to be considered herein is whether the petitioner herein violated the bail conditions so as to cancel his bail. It is true that cancellation of bail is a harsh order and therefore, the same cannot be done in a casual manner. 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. To put it differently, in ordinary circumstances, this Court would be loath 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.

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 Section 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.

We may clarify that the aforesaid list is only illustrative in nature and not exhaustive.

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].

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 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."

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 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.

In Dataram Singh's case (supra) also, abuse of concessions granted to an accused in any manner is a ground to cancel the bail.

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 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 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 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."

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.

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.

In this matter, evidently after commission of offence under the NDPS Act as alleged in Crime No.304/2021 of Sakthikulangar Police Station, the petitioner herein involved in 2 more crimes viz., Crime No.7/2022 and Crime No.63/2022 of Chathannoor Police Station while he had been on bail, blatantly violating the condition in the bail order `not to involve in any other crimes'. Further he was booked under Section 3 of KAAPA Act and he was detained.

Since the law is settled that if the accused, during the currency of bail, misuses his liberty by involving in other criminal activities and violated the conditions imposed in the bail order, the same is a supervening circumstance to cancel the bail.

In fact, the court below cancelled the bail after appraising the said facts and, therefore, cancellation of bail in the facts of the given case cannot be found fault with. Therefore, I am inclined to confirm the same and this petition stands dismissed accordingly.

Registry shall forward a copy of this order to the court below, within 7 days, for information.