CHELLAPPAN v. STATE OF KERALA — 1987 DIGILAW 96 (KER)

Judgment :- 1. The petitioners are accused in Crime No. 16/1987 of Aranmula Police Station, registered under S.143, 147, 148, 149, 332, 225, 307 and 427 IPC. and under S.3(2) (c) of the Prevention of Damage to Public Property Act of 1984. The Judicial Magistrate of the II Class, Pathanamthitta in Crl. M. P. No. 402 of 1987 granted bail to the petitioners subject to the condition, that the accused should appear before the Circle Inspector of Police on every Sunday till the investigation is completed. 2. The State filed Crl. M. P. 32/1987 before the Court of Sessions, praying to cancel the bail granted by the learned Magistrate and by order dated 13-2-1987, the learned Sessions Judge allowed the application and cancelled the hail granted to the petitioners, Aggrieved by the said order, the accused-petitioners have filed this Crl. M.C. 3. In passing the order the learned Sessions Judge held that the Magistrate has overstepped his jurisdiction and has violated the mandatory provisions contained in S.437(1) of the Cr P. C. The view taken by the learned Sessions Judge is wrong in the light of the decision of this Court in Satyan v. State of Kerala (1981 KLT 606) and also an unreported decision in Crl. MC. No. 442 of 1984. In both these decisions, it was held that the Magistrate has jurisdiction to grant bail if the offeree is not punishable with death or imprisonment for life in the alternative. 1n Crl. M. C. No. 442 of 1984 the offence against the accused was one under S.436 IPC which was exclusively triable by the Court of Sessions. Therefore the view taken by the learned Magistrate that he has powers to grant bail in the instant case is correct. 4. The Supreme Court in State through the Delhi Administration v. Sanjay Gandhi 1978 SCC (Cri.) 223 had occasion to consider the circumstances under which a bail granted can be cancelled. Their Lordships observed thus: "Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Their Lordships observed thus: "Rejection of bail when bail is applied for is one thing, cancellation of bail already granted is quite another. It is easier to reject a bail application in a non-bailable case than to cancel a bail granted in such a case. Cancellation of bail necessarily involves the review of a decision already made and can by and large be permitted only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. The fact that prosecution witnesses have turned hostile cannot by itself justify the inference that the accused has won them over. The objective fact that witnessess have turned hostile must be shown to bear a casual connection with the subjective involvement therein of the accused. Without such proof, a bail once granted cannot be cancelled on the off chance or on the supposition that witnesses have been won over by the accused. Inconsistent testimony can no more be ascribed by itself to the influence of the accused than consistent testimony, by itself, can be ascribed to the pre-sure of the prosecution" 5. In Superintendent of Police v. Vijayaraghavan & others (1984 KLT. 47) this court followed Sanjay Gandhi's case and pointed out that ordinarily the High court will not exercise its discretion to interfere with the bail granted by Sessions Judge in favour of the accused and where cancellation of bail is sought in an application, the prosecution has to prove its allegation by preponderance of probabilities. This court also observed that cancellation of bail necessarily involves the review of decision already made and can by and large be permitted only if by reason of supervening circumstance it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. 6. In the instant case, it is not contended before me that there is likelihood of the accused fleeing from justice or they will tamper with the evidence or that the accused fails to comply with the condition imposed by the learned Magistrate or that there are any other supervening circumstances which required cancellation of the bail. I therefore set aside the order or the learned Sessions Judge in Crl. MP. 32/1987 and restore the order of the Judl. Magistrate of the I Class, Pathanamthitta in Crl. I therefore set aside the order or the learned Sessions Judge in Crl. MP. 32/1987 and restore the order of the Judl. Magistrate of the I Class, Pathanamthitta in Crl. M. P. No. 402 of 1987. The Criminal M.C. is disposed of as above.