In my view, merely because of the reason that such a
condition was imposed while granting bail to the accused,
that would not result in the cancellation of bail
automatically. This is particularly because, since the order
of cancellation of bail is something that affects the personal
liberty of a person, which is guaranteed under Article 21 of
the Constitution of India, unless there are reasons justifying
or warranting such an order, the bail already granted
cannot be cancelled.
5. No doubt, involvement of an accused on bail in another
crime is a supervening circumstance that would justify
cancellation of bail. To reiterate, the question here is
whether such cancellation is automatic or can be done in a
mechanical manner. In my opinion, the answer to that
question can only be in the negative. While deciding bail
applications, the court has to always keep in mind the
fundamental principle that bail is the rule and jail, the
exception. Yet another pertinent aspect is that by cancelling
the bail, a person is being deprived of the liberty granted to
him after considering all relevant aspects. Therefore, very
cogent and overwhelming circumstances are necessary for
cancellation of bail once granted and there cannot be a
mechanical cancellation of the bail.
11. The mere registration of a subsequent crime against the
accused by itself cannot result in an automatic cancellation
of bail. Registration of a subsequent crime is only an
indication of an allegation or a complaint of the accused
having been involved in a subsequent crime. The
presumption of innocence available to the accused in the
second crime, the right to liberty as a fundamental right
under Article 21 of the Constitution of India which
envelopes every provision of the Code of Criminal
Procedure are factors which cannot be forgotten by the
Court when called upon to cancel the bail. The possibility of
false accusations being alleged with oblique motives also
cannot be ignored. The nature of the subsequent offence and
the persons against whom the offence is alleged to have
been committed, the stage of the case wherein cancellation
is sought are also factors that require appreciation. Apart
from the above, while arriving at the conclusion to cancel
the bail, the Court must also consider whether the accused
had misused the liberty granted in such a manner that it has
a tendency to interfere with the due course of the
administration of justice. Thus, every case presents a unique
situation and close scrutiny ought to be indulged in to
identify whether overwhelming circumstances are indeed
present in the subsequent crime which necessitates the
cancellation of bail earlier granted.
12. As held in Dolat Ram and Others v. State of Haryana
[(1995) 1 SCC 349] very cogent and overwhelming
circumstances are necessary to cancel the bail already
granted and that bail once granted should not be cancelled
in a mechanical manner without considering whether the
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.
13. Further, the decision in P. v. State of Madhya Pradesh (supra) does not imply that on violation of any of the conditions of bail, there should be an automatic cancellation. A perusal of the judgments referred to hereinabove would show
that no condition for the automatic cancellation of bail can be imposed while granting bail. The only condition that can be imposed is that the Investigating Agency/complainant would be at liberty to move an application for cancellation of bail which would be adjudicated upon in accordance with law.
In fact, bail once granted cannot be cancelled automatically and in a mechanical manner. There must be cogent and overwhelming circumstances necessary to cancel the bail once granted. Mere violation of the bail conditions would not be sufficient to cancel the bail. The Court must be satisfied that it is necessary to cancel the same keeping in view various factors. In the instant case, however, the bail has been cancelled automatically without examining any circumstances whatsoever one of which would have been that in the two other cases registered against the petitioner,she had been granted the concession of bail prior to her bail being cancelled in the instant case.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-35903-2023
RAJIYA Vs STATE OF HARYANA
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
The prayer in the present petition under Section 482 Cr.P.C. is
for setting aside the condition/observation i.e. in case, the applicant is
involved in any other case of similar nature, the bail granted, in the case in
hand shall deemed to be dismissed without further notice imposed vide order
dated 12.10.2020 passed by the Addl. Sessions Judge, Faridabad (Annexure
P-3) while granting bail to the petitioner in FIR No.450 dated 08.09.2020
registered under Sections 20-61-85 of NDPS Act at Police Station Surajkund,
Faridabad, Haryana as well as the order dated 21.10.2022 (Annexure P-8)
whereby the bail granted to the petitioner has been cancelled.
2. The brief facts of the case are that an FIR No.450 under Section
20 of the NDPS Act, Police Station Surajkund, Faridabad, Haryana came to
be registered against the petitioner with the allegations that 1 Kg 534 Gms of
Ganja had been recovered from her. The copy of the said FIR is attached as
Annexure P-2 to the petition.
3. The petitioner sought the concession of bail and was granted the
same by the Court of Addl. Sessions Judge, Faridabad vide order dated
12.10.2020 (Annexure P-3) with the following observations:-
“It is made clear that in case, the applicant is involved in
any other case of similar nature, the bail granted, in the
case in hand shall deemed to be dismissed without further
notice.”
4. Thereafter, an FIR No.207 dated 14.04.2022 under Sections
20/61/85 of the NDPS Act, Police Station Surajkund, Faridabad, Haryana
came to be registered against one Hamida from whom the recovery of 3 Kgs
770 Gms of Ganja was effected. The copy of the said FIR is annexed as
Annexure P-4 to the petition. The name of the petitioner surfaced in the
disclosure statement of the said Hamida. Hamida was granted bail vide order
dated 06.07.2022. The petitioner was arrested on 11.03.2023 and was granted
bail on 08.05.2023 by the Addl. Sessions Judge, Faridabad, Haryana.
5. An FIR No.378 dated 03.07.2022 under Sections 20/61/85 of the
NDPS Act, Police Station Surajkund, Faridabad, Haryana came to be
registered against one Amar who was found in possession of 610 Gms of
Ganja. The copy of the said FIR is annexed as Annexure P-6 to the petition.
The petitioner was named in the disclosure statement of Amar. He was
granted bail in this FIR vide order dated 09.05.2023 passed by the JMIC,
Faridabad, Haryana.
6. Thereafter, an application was moved by the prosecution for
cancellation of bail granted in the instant FIR bearing No.450 on the grounds
that the petitioner had subsequently been found to have been involved in
other FIRs (Annexures P-4 & P-6). A response to the said application was filed and it was contended that she had been named in the disclosure
statements of the arrested accused at the instance of the Investigating Agency.
On the basis of the respective pleadings of both the parties, the regular bail
granted to the petitioner vide order dated 12.10.2020 (Annexure P-3) was
cancelled on the ground that there was a condition for automatic cancellation
of bail in para 7 of the order. The copy of the order cancelling bail granted to
the petitioner vide order dated 21.10.2022 is annexed as Annexure P-8 to the
petition.
7. The condition imposed vide order dated 12.10.2020 (Annexure
P-3) and the order dated 21.10.2022 (Annexure P-8) whereby the bail has
been cancelled are under challenge in the present petition.
8. The learned counsel for the petitioner contends that the
condition imposed in the order dated 12.10.2020 (Annexure P-3) was
contrary to the settled proposition of law and in fact, no condition for
automatic cancellation of bail could be imposed while granting bail. There
must be cogent and overwhelming circumstances to cancel the bail already
granted and the same could not be cancelled in a mechanical manner. Even
otherwise, mere violation of the bail conditions was not sufficient to cancel
the bail but the satisfaction of the Court was necessary that the bail was
required to be cancelled after examining various factors. Reliance is placed
on the judgments in the cases of Subhendu Mishra Versus Subrat Kumar
Mishra and another, 1999 AIR (Supreme Court) 3026, Godson Versus
State of Kerala, 2022(3) Crimes 191, Abdul Lathif @ Shokkari Lathif
Versus State of Kerala, CRL. MC No.6677 of 2022, decided on 10.02.2023
and Renjith Versus State of Kerala, 2023(1) ILR (Kerala) 1060.
9. On the other hand, the learned State counsel while referring to
the reply dated 02.09.2023 contends that the condition for automatic
cancellation of bail had rightly been imposed vide order dated 12.10.2020
(Annexure P-3). In fact, pursuant to the grant of bail to the petitioner in FIR
No.450, he had been found to be involved in two other cases under the NDPS
Act itself. It was in that situation that the application for cancellation was
filed and the bail granted to the petitioner was cancelled. As the condition
had rightly been imposed, the subsequent cancellation of bail could not be
faulted. He, therefore, contends that the present petition was liable to be
dismissed.
10. I have heard the learned counsel for the parties.
11. Before proceeding further, it would be apposite to examine to
the various judgments referred to by the counsel for the petitioner and the
relevant extracts of the same are as under:-
The Hon’ble Supreme Court in the case of Subhendu Mishra
Versus Subrat Kumar Mishra and another, 1999 AIR (Supreme Court)
3026, held as under:-
3. We have perused the order of the High Court and heard
learned counsel for the parties.
4. In Dolat Ram v. State of Haryana (1995) 1 SCC
349 while drawing a distinction between rejection of bail in
a non-bailable case at the initial stage and the cancellation
of bail already granted, it was opined by this Court :
". . . . . . . . . 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."
(emphasis supplied)
The Kerala High Court in the case of Godson Versus State of
Kerala, 2022(3) Crimes 191, held as under:-
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.
*** *** ****
7. The conditions to be imposed while granting bail, are
contemplated under Sections 437(3) r/w. Section 439(1)(a)
of Cr.PC. The condition not to involve in similar offences
during the bail period is something which is specifically
stipulated in the aforesaid provision. Since such a condition
is specifically mentioned in the statute, that would indicate
the importance of such condition and the necessity to insist
on the compliance of the same. However, the question that
arises here is whether a violation of the said condition
should result in the cancellation of the bail in all the cases.
In my view, merely because of the reason that such a
condition was imposed while granting bail to the accused,
that would not result in the cancellation of bail
automatically. This is particularly because, since the order
of cancellation of bail is something that affects the personal
liberty of a person, which is guaranteed under Article 21 of
the Constitution of India, unless there are reasons justifying
or warranting such an order, the bail already granted
cannot be cancelled. In Dolat Ram and Others v. State of
Haryana (1995) 1 SCC 349, the Hon'ble Supreme Court has
observed as follows:
"5. 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."
The aforesaid view was reiterated in X v. State of Telangana
and Another reported in [(2018) 16 SCC 511].
8. In Dataram Singh v. State of Uttar Pradesh [(2018)3 SCC
22], it was observed by the Hon'ble Supreme 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."
Therefore, 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 imp licated . In XI, Victim
SC No.211 of 2018 of POCSO Court v. State of Kerala and
Others [2019 (3) KHC 26], this Court laid down the
principles with regard to the nature of the enquiry to be
conducted by the court concerned, while considering an
application for cancellation of bail. In paragraph 9 of the
said judgment, it was observed as follows:
"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."
Thus, from all the above decisions, it is 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. Therefore, the orders impugned in
these cases are to be considered by applying the yardstick as
mentioned above.
9. When coming back to the facts of this case, it can be seen
that the petitioners are seen implicated in the offences under
Sections 341,308,324 r/w. Section 34 of the IPC, in a crime
registered in the year 2018. They were granted bail on
9.2.2018, subject to the above conditions. Now the present
application is submitted in the year 2022 on the allegation
that the petitioners are 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 is not
required to conduct the trial of the said cases. The
allegations in the subsequent crime are 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 are entirely
different and have no connection with each other.
10. In my view, even though the court which granted the bail
is 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,
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. In Dataram Singh's case, it was
categorically observed that, bail once granted, cannot be
cancelled 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.
11. 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 petitioners are
indeed involved in some other cases, and one of the
petitioners is already undergone preventive detention under
KAA(P)A. However, that alone cannot be a reason to cancel
the bail, unless it is shown that the involvement of the
petitioners in the subsequent crime is affecting the trial of
the earlier case. If the prosecuting agency is concerned with
the commission of repeated offences by the accused persons,
there are ample statutory provisions available for them to
initiate appropriate proceedings for subjecting the accused
persons to preventive detention. 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
has 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. The said fact
fortifies the view which I have taken as above. 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. When
the court orders the arrest of a person already released on
bail, it would have the effect of cancellation of the bail.
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. In some
cases, the commission of heinous crimes repeatedly, in such
a manner as to infuse fear in the mind of the witnesses,
which may deter them from deposing against the accused,
may also be relevant, as it is something which affects the
conduct of the fair trial. However, no hard and fast rules can
be laid down in respect of the same, and it differs from case
to case. As held in the case of XI, Victim SC No.211 of 2018
of POCSO Court (supra), the court has to conduct a
summary enquiry after perusing the records and arrive at a
satisfaction as to whether it is necessary to cancel the bail of
the accused.
12. While applying the above principles to the facts of this
case, one of the crucial aspects relevant for consideration is
whether the subsequent crime interferes with the conduct of
a fair trial of the case in which he is involved. Such a
situation is not there in this case. Further, the mere
allegation of the involvement of the petitioners in the
subsequent crime after three years of the crime in which the
bail was granted, cannot by itself be a reason for the
cancellation of bail. Even in the subsequent cases, the
petitioners were granted bail and the investigation in that
case was also completed. Therefore, the custody of the
petitioners is not at all necessary, and hence I do not find
any justifiable reason to sustain the order of cancellation of
bail.
In the result, both these Crl.M.Cs are allowed. The orders
passed by the IInd Additional Sessions Court, Ernakulam on
24.02.2022 in Crl.M.P.No.247/2022 and Crl.M.P.No.249/
2022 in Crl.M.C.No.197/2018 are hereby quashed. However,
it is made clear that, this shall not preclude the authorities
concerned in initiating any proceedings for preventive
detention of the petitioners if there are materials warranting
the same.
(emphasis supplied)
In Abdul Lathif @ Shokkari Lathif Versus State of Kerala,
CRL. MC No.6677 of 2022, decided on 10.02.2023, held as under:-
Mr. V.G.Arun, J. - The petitioner is the accused in S.C. No.
10 of 2022 on the files of the Sessions Court, Kasargod
which arose out of Crime No. 17 of 2021 registered by the
Excise Enforcement and Anti Narcotic Special Squad for the
offence under Sections 20(b)(ii)(B), 22(a) and 22(b) of the
Narcotic Drugs and Psychotropic Substances Act, 1985
('NDPS Act' for short). In that crime, the petitioner was
enlarged on bail by the Sessions Court on 31.12.2021
subject to certain conditions. One of the conditions was that
the petitioner should not commit any offence while on bail.
The petitioner was later arrested on 11.03.2022 in
connection with Crime No. 5 of 2022 registered by the
Excise Enforcement and Anti Narcotic Special Squad,
Kasargod, this time for the offences under Sections 22(b),
27(a) and 29 of the NDPS Act. Consequently the petitioner
was remanded to judicial custody again. On registration of
the second crime, the Public Prosecutor moved an
application under Section 439(2) Cr.P.C. seeking
cancellation of bail in the first case for violation of the
condition which required him not to commit any offence
while on bail. Based on the petition, the Sessions Court
cancelled petitioner's bail as per Annexure A1 order. Hence,
this Crl.M.C.
2. Learned Counsel for the petitioner contended that the
alleged involvement in a subsequent crime cannot lead to
automatic cancellation of the bail granted in the earlier
crime, even if there is a condition that the accused should
not commit any crime while on bail. It is submitted that the
investigation in the first crime (Crime No.17/2021) was
completed and the matter was pending before the Sessions
Court as S.C. No. 10 of 2022. When the application for
cancellation of bail was moved, the learned Sessions Judge,
without considering the above fact or the allegations based
on which the petitioner is implicated in the subsequent
crime, mechanically cancelled the bail. Reliance is placed
on the decision on Godson & Anr. v. State of Kerala (2022
(2) KLD 447) to contend that, order of cancellation of bail
being an action affecting the personal liberty of a person
guaranteed under Article 21 of the Constitution of India,
bail cannot be cancelled in the absence of reasons justifying
such an order. It was also held that involvement of the
accused in a subsequent crime alone cannot be a reason to
cancel the bail, unless it is shown that the involvement of the
accused in the subsequent crime is affecting the trial of the
earlier case. Reference is also made to the decision
in XI,Victim of POCSO Court v. State of Kerala & Ors.
(2019 (3) KHC 26), SC No.118 of 2018 wherein it is held
that while considering the prayer for cancellation of bail,
the bail court cannot evade from the responsibility of making
a summary enquiry, as to the truth or otherwise of the
allegations, based on the specious plea that those
allegations form subject matter of distinct crime. The
general principles to be followed while cancelling the bail is
submitted with the aid of X v. State of Telangana and Anr.
[(2018) 16 SCC 511] and P. v. State of Madhya Pradesh &
Anr. (2022 SCC Online SC 552).
3. Learned Public Prosecutor contended that, when an
accused is granted liberty subject to certain conditions, he is
bound to strictly abide by the conditions. If he misuses that
liberty and commits another crime, that, by itself, is
sufficient reason to cancel the bail. This aspect is laid down
by the Supreme Court in P (supra) and has been followed by
this Court in Sreeja Mannangath v. State of Kerala (2022
(6) KLT OnLine 1129).
4. There being no dispute to the fact that the petitioner was
arrayed as an accused in a crime, subsequent to his release
on bail in the first crime, the only question to be considered
is whether involvement in the subsequent crime can result in
automatic cancellation of the petitioner's bail. In X (supra)
the bail granted by the High Court to the accused in a crime
alleging commission of the offence under Section 376, was
cancelled by the Sessions Court for failure of the accused to
disclose the pendency of prosecution against him in the 2G
Spectrum case. Setting aside the order of cancellation, the
Apex Court held that the second FIR is not a supervening
circumstance of such a nature as would warrant
cancellation of the bail. For holding so, the Apex Court
found that no cogent material to indicate that the accused
has been guilty of conduct which would warrant his being
deprived of his liberty was made out. This Court in Godson
(supra) also held that involvement in a second crime alone
cannot be a reason to cancel the bail, unless it is shown that
such involvement is affecting the trial of the earlier case.
Recently, in P (supra), the Supreme Court enumerated some
of the circumstances where bail granted to the accused
under Section 439(1) of the Cr.P.C. can be cancelled. One
such circumstance is misuse of liberty by the accused, by
indulging in similar/other criminal activity. It is pertinent to
note the following observations of the Apex Court in the
same decision.
"25. 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. 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 by the
Appellate Court. Some of the circumstances where
bail granted to the accused under Section 439(1) of
the Cr.P.C. can be cancelled are enumerated below:-
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 un-conducive to a fair trial.
We may clarify that the aforesaid list is only
illustrative in naturer and not exhaustive."
Following the decision in P (supra), this Court in Sreeja
Mannangath (supra) and Jeby James v. State of Kerala
(2023 KLT OnLine 1088) held involvement in subsequent
crime to be a valid ground for cancellation of bail.
5. No doubt, involvement of an accused on bail in another
crime is a supervening circumstance that would justify
cancellation of bail. To reiterate, the question here is
whether such cancellation is automatic or can be done in a
mechanical manner. In my opinion, the answer to that
question can only be in the negative. While deciding bail
applications, the court has to always keep in mind the
fundamental principle that bail is the rule and jail, the
exception. Yet another pertinent aspect is that by cancelling
the bail, a person is being deprived of the liberty granted to
him after considering all relevant aspects. Therefore, very
cogent and overwhelming circumstances are necessary for
cancellation of bail once granted and there cannot be a
mechanical cancellation of the bail. In this context, I find the
following observations in XI, Victim SC No.211 of 2018 of
POCSO Court (supra) to be very pertinent.
"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 afore stated. 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."
Therefore, even in a case where the accused has committed
a crime while on bail, the court has to consider whether
crime is of such grave nature that it amounts to a
supervening circumstance warranting cancellation of bail.
For that, there has to be a preliminary assessment of the
allegations with respect to the subsequent crime.
6. In the instant case, the learned Sessions Judge did not
enter into any such exercise and proceeded to cancel the
bail mechanically, as revealed from paragraph 7 of
Annexure A1 order extracted hereunder;
"The accused is involved in another crime after he is
released on bail in this case, it is clear violation of the
order passed by the court in CMP No. 3282/2021. So
the petitioner is not entitled to enjoy the freedom.
Hence the bail granted to the accused as per order in
CMP 3282/2021 in S.C No.10/2022 is hereby
cancelled."
For the reasons aforementioned, the Crl.M.C. is allowed, the
impugned order set aside and the Sessions court directed to
reconsider C.M.P. No. 2072 of 2022 in S.C. No. 10 of 2022
and pass a fresh reasoned order, taking into account the
observations herein. The impugned order having been set
aside, the petitioner has to be enlarged on bail. However, in
view of petitioner's involvement in the second crime, the bail
bond is being increased and the following order issued;
The petitioner shall be enlarged on bail on executing a
personal bond for Rs.2,00,000/- (Rupees Two Lakhs only).
The above direction is in addition to the conditions imposed
in the original order granting bail.
(emphasis supplied)
In Renjith Versus State of Kerala, 2023(1) ILR (Kerala) 1060,
held as under:-
Bechu Kurian Thomas, J . - Should the bail granted in one
crime be cancelled merely because the accused had, in
alleged violation of the conditions of bail, got himself
entangled in a subsequent crime? The above question arises
for resolution in the instant case.
2. Petitioner is an accused in C.C. No.1104 of 2022 on the
files of the Judicial First Class Magistrate's Court,
Chavakkad, which arises from Crime No.31 of 2022 of
Guruvayoor Police Station, Thrissur (hereafter referred to
as the 'first crime'). The prosecution alleges that on
12.01.2022, petitioner had attacked the defacto complainant
in front of a temple at Guruvayoor and caused grievous hurt
and also stole her mobile phone and thus committed the
offences punishable under sections 341, 323, 324, 325, 394
and 201 read with section 34 of the Indian Penal Code.
3. After petitioner was taken into custody on 23.05.2022, he
was granted bail on 02.06.2022. One of the conditions
imposed by the learned Magistrate, while granting bail was
that petitioner should not involve in any other crime while
on bail. Later, petitioner was arrayed as an accused in
Crime No.1072/2022 of Thrissur Town West Police Station
(hereafter referred to as the 'second crime') alleging
offences punishable under sections 294(b), 323, 308, 354
and 354A of the Indian Penal Code, 1860. The allegations
in the second crime include displaying his nudity before a
lady and brandishing a chopper in an attempt to commit
culpable homicide and shouting obscene words on a public
road. Petitioner has been granted bail in the second crime
also.
4. In the meantime, a petition was filed through the
Prosecutor to cancel the bail granted in the first crime due
to his involvement in the second crime in violation of the
conditions of bail. By the impugned order, the learned
Magistrate cancelled the bail due to his involvement in the
subsequent crime.
11. The mere registration of a subsequent crime against the
accused by itself cannot result in an automatic cancellation
of bail. Registration of a subsequent crime is only an
indication of an allegation or a complaint of the accused
having been involved in a subsequent crime. The
presumption of innocence available to the accused in the
second crime, the right to liberty as a fundamental right
under Article 21 of the Constitution of India which
envelopes every provision of the Code of Criminal
Procedure are factors which cannot be forgotten by the
Court when called upon to cancel the bail. The possibility of
false accusations being alleged with oblique motives also
cannot be ignored. The nature of the subsequent offence and
the persons against whom the offence is alleged to have
been committed, the stage of the case wherein cancellation
is sought are also factors that require appreciation. Apart
from the above, while arriving at the conclusion to cancel
the bail, the Court must also consider whether the accused
had misused the liberty granted in such a manner that it has
a tendency to interfere with the due course of the
administration of justice. Thus, every case presents a unique
situation and close scrutiny ought to be indulged in to
identify whether overwhelming circumstances are indeed
present in the subsequent crime which necessitates the
cancellation of bail earlier granted.
12. As held in Dolat Ram and Others v. State of Haryana
[(1995) 1 SCC 349] very cogent and overwhelming
circumstances are necessary to cancel the bail already
granted and that bail once granted should not be cancelled
in a mechanical manner without considering whether the
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.
13. In this context, it is appropriate to refer to two recent
decisions of this Court. In Godson v. State of Kerala [2022
(2) KLD 447] a learned Single Judge of this Court had
observed that a mere violation of the bail conditions is not
sufficient to cancel the bail but the satisfaction of the court
that it is necessary to do so based on various factors have to
be arrived at. However, another learned Single Judge
in Sreeja Mannangath v. State of Kerala [2022 (7) KLD
, relying upon the decision in P. v. State of Madhya
Pradesh (supra), cancelled the bail after observing that the
accused had misused his liberty by violating one of the
conditions of bail. In Sreeja's case (supra), the accused is
alleged to have involved in a subsequent crime against the
defacto complainant in the earlier crime itself, in violation
of the specific condition not to do so. The conclusion arrived
at in Sreeja's case (supra) is based on the facts therein and
cannot apply to the present situation. Further, the decision
in P. v. State of Madhya Pradesh (supra) does not imply that
on violation of any of the conditions of bail, there should be
an automatic cancellation. The said decision has not diluted
the principles laid down in Dolat Ram's case (supra) and on
the other hand, specifically observes that there must be a
significant scrutiny before bail is cancelled.
14. With the above principles in mind, when the
circumstances of the present case are appreciated, it can be
noticed that the learned Magistrate had, in exercise of the
discretion to grant bail, released the petitioner on bail even
in the second crime. Still, the petitioner has remained in jail
for the last more than two months. Though the allegation as
regards the second crime is serious, taking into reckoning
the contention that the petitioner has been falsely implicated
and the absence of any injury on any person and the general
allegation that the accused attempted to commit culpable
homicide by brandishing a sword in a public road, this
Court is of the view that the second crime cannot be treated
as overwhelming enough to impede fair trial in the first
crime for cancelling the bail already granted. Further, the
final report in the crime in which bail was sought to be
cancelled was filed much earlier and there is no allegation
that the petitioner had misused his liberty against the
defacto complainant therein.
(emphasis supplied)
12. Coming back to the facts of the instant case, when the petitioner
was granted the concession of bail, a condition was imposed that his bail
would be deemed to be dismissed in case he was found to be involved in
cases of a similar nature in future. It was in pursuance to the said order, that
the impugned order 21.10.2022 (Annexure P-8) has been passed cancelling
the bail granted to the petitioner.
13. A perusal of the judgments referred to hereinabove would show
that no condition for the automatic cancellation of bail can be imposed while
granting bail. The only condition that can be imposed is that the Investigating
Agency/complainant would be at liberty to move an application for
cancellation of bail which would be adjudicated upon in accordance with law.
In fact, bail once granted cannot be cancelled automatically and in a
mechanical manner. There must be cogent and overwhelming circumstances
necessary to cancel the bail once granted. Mere violation of the bail
conditions would not be sufficient to cancel the bail. The Court must be
satisfied that it is necessary to cancel the same keeping in view various
factors. In the instant case, however, the bail has been cancelled
automatically without examining any circumstances whatsoever one of which
would have been that in the two other cases registered against the petitioner,
she had been granted the concession of bail prior to her bail being cancelled
in the instant case.
14. In view of the aforementioned discussion, the observation made
in the order dated 12.10.2020 (Annexure P-3) which reads as “It is made clear that in case, the applicant is involved in any other case of similar nature, the bail granted, in the case in hand shall deemed to be dismissed without further notice.” would be substituted with the following observationsas “it is made clear that in case the applicant is involved in any other case
of similar nature, the prosecution/Investigating Agency shall be at liberty to
move an application for cancellation of bail before the appropriate Court
which shall be adjudicated upon in accordance with law.”
15. Further, as the bail granted to the petitioner stood cancelled vide
order dated 21.10.2022 (Annexure P-8) which was based on the observations
made in the order dated 12.10.2020 (Annexure P-3), the order dated
21.10.2022 (Annexure P-8) whereby the bail granted to the petitioner was
cancelled stands quashed.
16. However, it is made clear that the prosecution/Investigating
Agency would be at liberty to move an application for cancellation of bail, if
so advised and the same shall be adjudicated upon by the concerned Court in
accordance with law in view of the observations made hereinabove.
(JASJIT SINGH BEDI)
JUDGE
21.12.2023
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