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2025 DIGILAW 121 (SC)

Nibin khan v. State Of Kerala

2025-01-06

B.V.NAGARATHNA, SATISH CHANDRA SHARMA

body2025
ORDER 1. Leave granted. 2. This appeal challenges the judgment and order dated 05.11.2024 passed by the High Court of Kerala at Ernakulam in Crl. M.C. No. 7638 of 2024. 3. The appellant Nibin Khan has been facing trial in connection with a crime registered pursuant to First Information Report No. 258/2022 lodged with Police Station Kottayam West, District Kottayam, in respect of offences punishable under Sections 376, 376(2)(n), 109 and 312 read with Section 34 of the Indian Penal Code, 1860. Pursuant to the dismissal of an application for anticipatory bail filed by the appellant before the High Court of Kerala in relation to the aforementioned FIR, the appellant had surrendered on 20.07.2022. The appellant then sought regular bail before the High Court of Kerala, by filing an application under Section 439 of the Code of Criminal Procedure, 1973. 4. The High Court of Kerala allowed the application of the appellant for regular bail vide order dated 22.08.2022 passed in B.A. No. 6372 of 2022. The appellant was enlarged on bail with conditions which read as follows: "(a) Petitioner shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. (b) Petitioner shall appear before the Investigating Officer as and when required. (c) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the victim or her family members. (d) Petitioner shall not commit any similar offences while he is on bail. (e) Petitioner shall not leave India without the permission of the Court having jurisdiction." 5. However, the bail granted to the appellant was cancelled by the order dated 29.08.2024 passed by the Court of the Fast Track Special Judge, Erattupetta in C.M.P. No. 216/2024 in S.C. No. 675/2022 on the ground that the appellant had violated conditions (c) and (d) imposed by the High Court of Kerala in the order dated 22.08.2022 while granting bail to the appellant. 6. Being aggrieved by the order of cancellation of bail passed by the Court of the Fast Track Special Judge, Erattupetta, the appellant preferred a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 before the High Court of Kerala. 6. Being aggrieved by the order of cancellation of bail passed by the Court of the Fast Track Special Judge, Erattupetta, the appellant preferred a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 before the High Court of Kerala. The High Court of Kerala dismissed the said petition filed by the appellant and thereby upheld the cancellation of bail of the appellant vide impugned order dated 05.11.2024 passed in Crl. M.C. No. 7638 of 2024. Hence, the appellant has preferred the instant appeal. 7. This Court vide its order dated 18.11.2024, issued notice in the instant matter. 8. Heard learned senior counsel for the appellant in support of the appeal and learned counsel for the State and perused the material on record. 9. Learned senior counsel appearing for the appellant contended that by order dated 22.08.2022, the High Court had granted the relief of regular bail subject to certain conditions; in fact there has been no violation of any of the conditions of the regular bail; that in fact it was the complainant, the so-called victim who was contacting the appellant herein. The relationship is a consensual relationship. The High Court was therefore, not right in cancelling the regular bail granted to the appellant herein. He, therefore, submitted that the impugned order may be set aside and relief may be granted to the appellant herein. 10. Per contra, learned counsel appearing for the respondent-State drew our attention to conditions (c) and (d) of the order dated 22.08.2022 by which the High Court had granted the relief of regular bail subject to, inter alia, the aforesaid conditions. Conditions (c) and (d) have been violated by the appellant. In the circumstances, the High Court was justified in cancelling the bail. 11. We have perused the order dated 22.08.2022 in light of the circumstances that have emerged subsequent to the grant of the said order and in light of the submissions advanced at the Bar. 12. We do not think that the High Court was justified in cancelling the bail granted to the appellant herein by the impugned order. In the circumstances, the impugned order is set aside. Consequently, the earlier order dated 22.08.2022 shall stand restored. 13. 12. We do not think that the High Court was justified in cancelling the bail granted to the appellant herein by the impugned order. In the circumstances, the impugned order is set aside. Consequently, the earlier order dated 22.08.2022 shall stand restored. 13. We, therefore, allow this appeal and direct as under: "The appellant shall be produced before the concerned Trial Court as early as possible and the Trial Court shall release him on bail, subject to the aforesaid conditions to ensure his presence in the proceedings arising out of First Information Report No. 258/2022 mentioned above." 14. It is directed that the appellant shall extend complete cooperation in the trial of the instant case. The appellant shall not misuse his liberty in any manner. 15. Any infraction of the conditions shall entail cancellation of bail granted to the appellant. 16. With these observations, the appeal is allowed. 17. Pending application(s), if any, shall stand disposed of.