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Kerala High Court · body

2021 DIGILAW 208 (KER)

AJEESH S/O VIKRAMAN v. STATE OF KERALA

2021-03-02

V.G.ARUN

body2021
ORDER : 1. Dated this the 02nd day of March, 2021 Petitioners are accused 1 to 4 and 6 in Crime No.08 of 2021 of Chengannur Police Station, initially registered for offences under Sections 143, 147, 148, 149, 341, 323 and 324 of IPC. Petitioners surrendered before the jurisdictional court on 06.01.2021 and was granted regular bail under Section 437(1) of Cr.P.C. On the same day, the investigating officer filed an additional report incorporating the offences under Sections 306 and 308 of IPC and submitted Annexure E application before the court seeking permission to arrest the accused and produce them before the court or to require the accused to appear before the court to consider whether, in view of inclusion of serious offences, they are entitled to continue on bail. This resulted in Annexure F order by which the court cancelled bail granted to the petitioners, issued non-bailable warrants and permitted the investigating officer to arrest them. 2. The challenge against Annexure F is primarily on the ground that, having granted bail to the petitioners on 06.01.2021, the court committed an illegality by cancelling the bail on the same day. Learned counsel for the petitioners contended that the petitioners hadexecuted the bail bonds only by evening on 06.01.2021, by which time the bail got cancelled, that too, without giving notice to the petitioners. 3. Learned Public Prosecutor submitted that, bail granted to the petitioners was for bailable offences and that, non-bailable offences under Sections 308 and 326 having been incorporated. Subsequently, the lower court was justified in cancelling the bail. It is submitted that the first information statement was given by the father of the injured, as the injured was hospitalised and not in a position to give statement. That, from the statement of the victim taken later and the medical records, it was revealed that the offences under Sections 308 and 326 were also committed. 4. Learned Public Prosecutor, as well as the learned Counsel for the petitioners drew attention to the decision of the Honourable Supreme Court in Pradeep Ram v. State of Jharkhand and another [(2019) 17 SCC 326]. In support of the contention that the jurisdictional court is empowered to order arrest of the accused or cancel bail, on incorporation of more offences in the FIR, learned Public Prosecutor relied on paragraph 29 of Pradeep Ram, the relevant portion of which is extracted hereunder: “29. In support of the contention that the jurisdictional court is empowered to order arrest of the accused or cancel bail, on incorporation of more offences in the FIR, learned Public Prosecutor relied on paragraph 29 of Pradeep Ram, the relevant portion of which is extracted hereunder: “29. ….It may be true that by mere addition of an offence in a criminal case, in which the accused is bailed out, investigating authorities itself may not proceed to arrest the accused and need to obtain an order from the court, which has released the accused on the bail. It is also open for the accused, who is already on bail and with regard to whom serious offences have been added to apply for bail in respect of new offences added and the court after applying the mind may either refuse the bail or grant the bail with regard to new offences. In a case, bail application of the accused for newly added offences is rejected, the accused can very well be arrested. In all cases, where the accused is bailed out under orders of the court and new offences are added including offences of serious nature, it is not necessary that in all cases earlier bail should be cancelled by the court before granting permission to arrest an accused on the basis of new offences. The powers under Sections 437(5) and 439(2) are wide powers granted to the court by the legislature under which the court can permit an accused to be arrested and commit him to custody without even cancelling the bail with regard to earlier offences. Sections 437(5) and 439(2) cannot be read into restricted manner that order for arresting the accused and to commit him to custody can only be passed by the court after cancelling the earlier bail. 5. According to the learned Counsel for the petitioners, the principle laid down in Pradeep Ram would apply only when, offences are added after bailing out the accused. It is submitted that in the case of the petitioners, the report adding the additional offences was filed on the day on which they were granted bail. 6. 5. According to the learned Counsel for the petitioners, the principle laid down in Pradeep Ram would apply only when, offences are added after bailing out the accused. It is submitted that in the case of the petitioners, the report adding the additional offences was filed on the day on which they were granted bail. 6. Having heard the learned Counsel on either side, I am of the opinion that, since non-bailable offences were included after grant of bail to the accused, the investigating officer was justified in having sought permission to arrest the petitioners or, in the alternative, to issue notice to the petitioners to explain why, the bail granted to them should not be cancelled. 7. Section 437 (5) of Cr.P.C empowers the jurisdictional court to direct a person released on bail to be arrested and committed to custody, if the court considers it necessary. In Pradeep Ram, it was held that Sections 437(5) and 439(2) cannot be read in a restricted manner and that, order for arresting the accused and to commit him to custody can be passed by the court only after cancelling the earlier bail. The Apex Court also made it clear that it would be open for the accused, who is already on bail and with regard to whom serious offences have been added, to apply for bail in respect of the newly added offences and that, the court can, after applying its mind, either refuse or grant the bail. 8. It is settled law that the yardstick for grant of bail and its cancellation are different. Very cogent and overwhelming circumstances are necessary for cancellation of bail already granted. Of course, the addition of more serious offences can be taken as an overwhelming circumstances warranting cancellation of bail. But, the accused should be put on notice regarding such overwhelming circumstances and the order cancelling the bail, should reflect consideration of those circumstances and the consequent need for cancellation. Annexure F order does not indicate any such exercise having been undertaken by the learned Magistrate and hence, I find it impossible to sustain the order. In the result, Annexure F order is set aside and the petitioners are permitted to surrender before the jurisdictional court and to move bail applications, with prior notice to the Public Prosecutor. Annexure F order does not indicate any such exercise having been undertaken by the learned Magistrate and hence, I find it impossible to sustain the order. In the result, Annexure F order is set aside and the petitioners are permitted to surrender before the jurisdictional court and to move bail applications, with prior notice to the Public Prosecutor. In such event, the learned Magistrate shall consider the bail applications on the date of surrender and pass appropriate orders on the same day. Such consideration shall be effected, bearing in mind the fact that the petitioners have been granted bail earlier, albeit, for bailable offences. In order to provide an opportunity for the petitioners to surrender and move the bail applications, the non-bailable warrant issued against them shall be kept in abeyance for one week. The Crl.M.C is allowed as above.