Jose Antony @ Kalan Jose vs State Of Kerala

A.Badharudeen, J

This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, by the petitioner who is the third accused in Crime No.1930 of 2018 of Alappuzha North Police Station where, the accused alleged to have committed offences punishable under Sections 8(c), 22(b) and 29 of the Narcotic Drugs and Psychotropic Substances Act.

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

I have perused the Case Diary materials produced by the learned Public Prosecutor.

The prosecution allegation in Crime No.1930 of 2018 of Alappuzha North Police Station is that, the accused therein possessed intermediate quantity of Narcotic Drugs and Psychotropic Substances and thereby, they committed offences punishable under Sections 8(c), 22(b) and 29 of the NDPS Act. In the said case, the petitioner was released on bail on conditions and the seventh condition in the bail order was that 'the petitioner shall not get involved in any offence'. Subsequently, during the currency of bail, the petitioner got involved in Crime No.460 of 2021 where, the prosecution alleges commission of offences punishable under Sections 143, 147, 148, 452, 324, 326 and 307 read with Section 149 of the Indian Penal Code.

It is at this juncture, the learned Public Prosecutor filed petition vide Crl.M.P.No.7168 of 2018 to cancel the bail granted to the petitioner in Crime No.1930 of 2018. Though the petitioner objected cancellation by a well considered order dated 14.06.2022, the Special Court(Principal Sessions Court), Alappuzha cancelled the bail of the petitioner.

It is relevant to note that the petitioner did not challenge the order of cancellation of bail. But the petitioner herein filed fresh bail application in Crime No.1930 of 2018 of Alappuzha North Police Station where, he alleged to have committed offences punishable under Sections 8(c), 22(b) and 29 of the NDPS Act.

On scrutiny of the order of the learned Sessions Judge produced as Annexure- A1, cancellation of bail for violation of condition No.7 is fully justified. Now the question is whether the petitioner is liable to be released on fresh bail.

The legal position as to cancellation of bail is well settled. In the decision reported in [2022(6) KLT OnLine 1129], Sreeja Mannangath v. State of Kerala, this Court considered exactly similar question and after referring various decisions of the Apex Court, it was held that, if the accused misuses his liberty by indulging in similar/other criminal activity violating condition/conditions imposed in the bail order, bail once granted is liable to be cancelled. Paragraph Nos.8 to 15 of the above judgment is as under:

"In the latest decision of the Apex Court reported in 2022(3) KLT Online 1107 (SC) : [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) KLT OnLine 946 (SC) = (1995) 1 SCC 349 : 1994 ICO 4306], Dataram Singh v. State of Uttar Pradesh, [2018(1) KLT OnLine 3028 (SC) = (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(2) KLT OnLine 3129 = [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."

Thus, it is clear that abuse of concessions granted to the accused in any manner is a ground to cancel the bail.

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 (3) KLT OnLine 1123 (SC) = 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 case, the bail granted to the petitioner in Crime No. 1930 of 2018 was cancelled on the finding that he had involved in a subsequent serious crime alleging commission of offence including one under Section 307 of the Indian Penal Code. In ground 'd” of the present bail petition, it has been contended that “the petitioner was under judicial custody at the time of cancelling his bail as he was detained in connection with KAAPA and hence he couldn't properly oppose the bail cancellation petition”.

Thus, the petitioner is a habitual offender even detained under KAAPA. Therefore, the petitioner who had blatantly violated the condition imposed by the Special Court, is not liable to be released on fresh bail and as such, this petition can only be dismissed directing expeditious trial of the case.

In the result, this petition stands dismissed with direction to the Special Court concerned to expedite the trial.