In CRL.MC NO. 2807 OF 2022-KER HC- Mere violation of condition alone is not sufficient to cancel bail; Court has to conduct summary inquiry based on records relating to subsequent crime: Kerala HC
Justice Ziyad Rahman A.A. [10-08-2022]



Mansimran Kaur

Ernakulam, August 17, 2022: While observing that stipulations contained in Section 437(5) and 439(2) of Cr.PC cannot be treated as a substitute for preventive detention laws, the Kerala High Court has asserted that mere allegation of the involvement of the accused in the subsequent crime after three years of the crime in which bail was granted, cannot by itself be a reason for the cancellation of bail. 

 A Single Judge bench of Justice Ziyad Rahman A.A. allowed the instant criminal miscellaneous case preferred by the petitioners in the present case who were arraigned as accused in a crime registered in 2018. The aforesaid crime was registered for alleged offences punishable under Sections 341,308 and 324 r/w. Section 34 of the Indian Penal Code. 

The petitioners were arrested in connection with the said case and later, as per order dated February 9, 2018 in criminal miscellaneous case of 2018, the second Additional Sessions Court granted bail to them subject to certain conditions.  Subsequently, Criminal Miscellaneous petitions were submitted by the Public Prosecutor for cancellation of their bail. The Sessions Judge allowed the said applications.  It was these impugned orders that were under challenge . 

After considering the submissions of the parties at length, the Court noted that while  considering an application to cancel the bail on the ground of non compliance of the conditions, the court has to consider the question whether the alleged violation amounts to an attempt to interfere with the administration of justice or as to whether it affects the trial of the case in which the accused is implicated. At this stage reliance was placed on the cases namely, Dataram Singh v. State of Uttar Pradesh, X v. State of Telangana and Another, 

In view of the aforesaid decisions, the Court noted, “…it was evident that  mere violation of the condition alone is not sufficient to cancel the bail granted by the court. Before taking a decision, the court has to conduct a summary inquiry based on the records, including the documents relating to the subsequent crime and arrive at a conclusion as to whether it is necessary to cancel the bail or not.

Coming back to the facts of the present case, the Court noted that the petitioners in the present case were implicated  in the offences under Sections 341,308,324 r/w. Section 34 of the IPC, in a crime registered in the year 2018 With respect to the present application, the Court noted that the same  was  submitted in the year 2022 on the allegation that the petitioners were involved in a crime committed in the year 2021. 

The fact remains that in both cases, final reports were already submitted by the Police. In the subsequent crime also, the petitioners were granted bail even after taking into consideration the criminal antecedents of the petitioners. Therefore, custody of the petitioners was not required to conduct the trial of the said cases. “The allegations in the subsequent crime were not relating to an act which was allegedly committed by the petitioners with the intention to intimidate or influence any witnesses in the crime registered in the year, 2018. Both crimes were entirely different and have no connection with each other”, the Court observed. 

The Court further opined that even though the court which granted the bail was empowered to direct the arrest of the petitioners who were already released on bail by virtue of the powers conferred upon the court as per Section 437(5) and 439(2) of Cr.PC, however, such power has to be exercised only if it is absolutely necessary.

 Of course, if the subsequent crime is allegedly committed with the intention to influence or intimidate the witnesses, the consideration should have been different, but it is not the case here, the Court stated. 

While considering the alleged involvement of the petitioners in the subsequent crime for cancellation of bail, the fact that the second crime is after three years of the earlier crime is also a relevant aspect, the Court further remarked. 

In furtherance of the aforesaid observations, the Court also noted that the stipulations contained in Section 437(5) and 439(2) of Cr.PC cannot be treated as a substitute for preventive detention laws. The legislature brought into force various enactments to enable the authorities concerned to keep the persons involved in repeated crimes under preventive detention, despite the stipulations in 437(5) and 439(2) of Cr.P.C. Moreover, there are no provisions in Cr.PC which specifically deal with the cancellation of bail and instead, the power is given to the court as per sections 437(5) and 439(2) to direct the person already released on bail, to be arrested and committed to prison, if it considers necessary to do so, the Court observed. 

In addition to the same, the Court remarked,“…that therefore what is relevant is not a mere violation of the bail condition but the satisfaction of the court that ‘it is necessary to do so”. While considering the aforesaid question, the matters such as; the time gap between the crimes, the possibility of false accusation in the subsequent case, bail granted to the accused in the subsequent crime, stage of the prosecution of the case in which cancellation of bail is sought, chances of affecting or causing interference in the fair trial of the case, etc. could be relevant, the Court noted.

In light of the observations made above, the Court was thus of the view that both the criminal miscellaneous cases shall be allowed, as it failed to find any justifiable reason to sustain the order of cancellation. 

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