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KERALA HIGH COURT
Ziyad Rahman A.A., J.
Godson and Anr. – Petitioners
versus
State of Kerala – Respondent
Crl.M.C.Nos.2807 and 2814 of 2022
Decided on 10.8.2022
(A) Criminal Procedure Code, 1973 – Sections 437(5) and 439(2) – Bail – Cancellation of – Mere violation of condition alone is not sufficient to cancel bail granted by court – Before taking a decision, court has to conduct a summary inquiry based on records, including documents relating to subsequent crime and arrive at a conclusion as to whether it is necessary to cancel bail or not – Since order of cancellation of bail is something that affects personal liberty of a person, which is guaranteed under Article 21 of Constitution of India, unless there are reasons justifying or warranting such an order, the bail already granted cannot be cancelled. (Paras 7 and 8)
(B) Criminal Procedure Code, 1973 – Sections 437(5) and 439(2) – Bail – Cancellation of – Even though court which granted bail is empowered to direct arrest of petitioners who were already released on bail by virtue of powers conferred upon court as per Section 437(5) and 439(2) of Cr.P.C., such power has to be exercised only if it is absolutely necessary – Bail once granted, cannot be cancelled without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow accused to retain his freedom by enjoying concession of bail during trial – If prosecuting agency is concerned with commission of repeated offences by accused persons, there are ample statutory provisions available for them to initiate appropriate proceedings for subjecting accused persons to preventive detention – Stipulations contained in Section 437(5) and 439(2) of Cr.P.C. cannot be treated as a substitute for preventive detention laws. (Paras 10 and 11)
Result: Criminal Miscellaneous Petitions allowed.
Based on the provided legal document, the key points regarding the cancellation of bail are as follows:
Violation of Conditions Alone Is Insufficient: Merely violating a condition imposed at the time of granting bail does not automatically justify its cancellation. The court must undertake a summary inquiry into the records and related documents, including those concerning subsequent crimes, to determine whether cancellation is necessary (!) .
Order of Cancellation Affects Personal Liberty: Since cancelling bail impacts an individual's personal liberty guaranteed under Article 21 of the Constitution, such an order should only be made if there are justifiable or compelling reasons. Without such reasons, the bail granted initially should remain in force (!) .
Power to Arrest an Already Released Accused: The court which granted bail has the authority to direct the arrest of the accused even after release, under specific provisions. However, this power should only be exercised when absolutely necessary, considering whether supervening circumstances warrant such action and whether the cancellation is justified (!) .
Supervening Circumstances and Fair Trial: The cancellation of bail should be based on supervening circumstances that threaten a fair trial or indicate interference with the judicial process. Factors such as repeated offenses, involvement in heinous crimes, or conduct that may intimidate witnesses are relevant but must be evaluated in each case (!) (!) .
Relevance of Time Gap and Nature of Crimes: The time gap between the original and subsequent crimes, as well as the nature of the offenses, are relevant considerations. A significant time gap and the absence of interference with the trial process weaken the justification for cancelling bail (!) .
Preventive Detention Laws Are Not Substitutes: The statutory provisions in the Criminal Procedure Code concerning bail are not substitutes for preventive detention laws. If the prosecuting agency is concerned about repeated offenses, they should pursue appropriate preventive detention proceedings separately [paras 10 and 11].
Conduct of Summary Inquiry: When considering cancellation, the court must conduct a summary inquiry by reviewing records and allegations, providing an opportunity for all parties to be heard. The decision should be based on whether the alleged violation affects the administration of justice or the trial’s fairness (!) .
Final Decision on Bail Cancellation: The ultimate decision to cancel bail should be made cautiously, ensuring that it is necessary and justified, rather than based solely on the fact of a violation or involvement in subsequent crimes. If no substantial reasons are present, the initial bail should be upheld (!) (!) .
In conclusion, bail should not be cancelled lightly or solely due to violations of conditions or involvement in subsequent crimes. A careful, fact-based, and procedural review is essential to safeguard personal liberty and ensure justice.
ORDER
The petitioners are the accused in Crime No.160/2018 of Kalady Police Station. The petitioner in Crl.M.C No.2814/2022 is the 1st accused and the petitioner in Crl.M.C. No.2807/22 is the 2nd accused in the said crime. The aforesaid crime was registered alleging offences punishable under Sections 341,308 and 324 r/w. Section 34 of the Indian Penal Code (IPC).
2. The petitioners were arrested in connection with the said case and later, as per order dated 9.2.2018 in Crl.M.C.No.197/2018, the 2nd Additional Sessions Court, Ernakulam, granted bail to them subject to certain conditions. One of the conditions was that they should not involve in any other crime of similar nature during the bail period. Subsequently, the investigation in the said case is completed, and the final report has been submitted.
3. Later, Crl.M.P.Nos.249/2022 and 247/2022 were submitted by the Public Prosecutor for cancellation of their bail. The sole reason highlighted in the said petition is that both the petitioners are subsequently involved in Crime No.1159/2021 of Kuruppampady Police Station, which was registered for the offences punishable under Sections 143, 147, 308, 324, 506(ii) and 294(b) r/w. Section 149 of IPC. The learned Sessions Judge, as per orders dated 24.2.2022 allowed the said applications after hearing the petitioners and thereby, the bail granted to them was cancelled. These orders are now under challenge in this Crl.M.Cs.
4. Heard Sri. M.H. Hanis, the learned counsel appearing for the petitioners and Sri. C.S. Hrithwik and Sri. M.P. Prasanth, the learned Senior Public Prosecutors for the State.
5. The contention of the learned counsel for the petitioners is that the order of cancelling the bail already granted in the year 2018 based on the registration of a Crime in the year 2021 is unwarranted. It is pointed out that, in the subsequent crime also, the petitioners were granted bail and are complying with the bail conditions therein. As far as the case in which the impugned order is passed is concerned, the same is pending trial as the final report is already submitted. According to the learned counsel for the petitioners, they were falsely implicated in the subsequent crime, and it is also not a case which causes any interference in the trial of the earlier case, as there is no allegation that the alleged victim in the subsequent crime is a witness in the crime which is the subject matter of the order impugned in this case. It is further contended that the fact that the petitioners were subsequently implicated for the offences, by itself cannot automatically lead to the cancellation of the bail already granted to them unless cogent and exceptional reasons are highlighted.
6. On the other hand, the learned Senior Public Prosecutor would seriously oppose the aforesaid submission. It is pointed out that, the petitioners are involved in several cases. The petitioner in Crl.M.C.No.2807/2022 is involved in Crime Nos. 159/2018 of Kalady Police Station, for the offences punishable under Sections 341, 324, 307 r/w. Section 34 of the IPC, Crime No 160/2018 of Kalady Police Station for the offences punishable under Sections 341, 324, 308 r/w. Section 34 of the IPC, Crime No 977/2018 of Kalady Police Station for the offences punishable under Sections 341, 323, 324, 308 r/w. Section 34 of the IPC, Crime No 1499/2018 of Kalady Police Station for the offences punishable under Sections 506,294(b) r/w. Section 34 of the IPC and Crime No 1247/2020 of Kalady Police Station for the offences punishable under Sections 506, 294(b) r/w. Section 34 of the IPC. It is also pointed out that the petitioner in Crl.M.C.No.2807/2022 was also detained as per the order passed by the District Collector under the provisions of the Kerala Anti-Social Activities (Prevention) Act. According to the learned Public Prosecutor, the aforesaid petitioner is a habitual offender and therefore, no interference is warranted in the order passed by the learned Sessions Judge
(1) Mere violation of condition alone is not sufficient to cancel bail granted by court.(2) Stipulations contained in Section 437(5) and 439(2) of Cr.P.C. cannot be treated as a substitute for preven....
Point of law: There are no provisions in Cr.PC which specifically deal with cancellation of bail and instead, power is given to court as per sections 437(5) and 439(2) to direct person already releas....
Cancellation of bail requires cogent evidence of supervening circumstances; mere subsequent charges do not automatically justify cancellation if they do not affect the original trial.
The court ruled that mere registration of a subsequent offence does not justify automatic bail cancellation; a thorough inquiry into supervening circumstances is necessary.
Bail conditions must not include automatic cancellation upon subsequent offenses; cogent circumstances must be assessed for any cancellation.
Point of law : Hon'ble Apex Court has adverted to all the past precedents and has encapsulated the circumstances under which bail granted to the accused under S.439 (1) of the Cr. P. C. can be revoke....
Cancellation of bail requires compelling reasons, especially if a significant time lapse exists between alleged offences.
Violating Condition Imposed in Bail Order - Cancel Bail - Criminal activity violating condition/conditions imposed in the bail order, the same is a supervening circumstances to cancel the bail.
Involvement in similar criminal activity is a reasonable ground for canceling bail, reinforcing the need for compliance with bail conditions.
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