Bail once Granted cannot be Cancelled on the Off Chance or on Mere Suppositions [CASE LAW]

The Code of Criminal Procedure, 1973 - Section 437 (1) - A bail once granted cannot be cancelled on the off chance or on mere suppositions. [Para 15]

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
FRIDAY, THE 21ST DAY OF DECEMBER 2018 / 30TH AGRAHAYANA, 1940
Crl. MC.No. 8826 of 2018 IN CMP NO.5301/2018
ON THE FILES OF J.M.F.C.-I, KANJIRAPPALLY CRIME NO.1528/2018 OF MUNDAKAYAM POLICE STATION, KOTTAYAM
PETITIONER / ACCUSED:
JERI CHERIYAN
BY ADVS. SRI.B.RAMAN PILLAI (SR.) SMT.MANJU E.R. SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM SRI.THOMAS SABU VADAKEKUT
RESPONDENT / COMPLAINANT:
STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI -682031.
BY SR. PUBLIC PROSECUTOR SRI.AMJAD ALI
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
O R D E R
The petitioner herein was granted bail under Section 437 (1) of the Code of Criminal Procedure, 1973 ( the “Code” for brevity) by the learned Magistrate on 23.11.2018 after he was arrested in Crime No.1528 of 2018 registered at the Mundakkayam Police Station on 17.11.2018 under Sections 354 and 354A of the IPC.
2. While the petitioner was enjoying the liberty granted as above, he was served with Annexure-J notice dated 14.12.2018 directing him to appear before the Court below on 17.12.2018. The terse order passed by the court below reads as follows:-
“Heard. On perusal of the CD filed and arguments of counsel and APP , it is clear that prima facie offence under Section 376 IPC is made out. Hence, accused shall appear on 17.12.2018.”
3. The above order is under challenge in this petition filed under Section 482 of the Cr.P.C. The apprehension evidently is that the learned Magistrate has concluded that if prima facie offence under Section 376 of the IPC is made out, he would be remanded to on his appearance.
4. A brief resume of the facts emerging from the case diary needs to be narrated to have an idea of the events which led to the passing of the above order by the learned Magistrate.
5. On 17.11.2018 at about 8.30 p.m., the de facto complainant was sitting on the ladies' seat of a crowded KSRTC bus on her way to Kumarakom. The petitioner herein, who was a copassenger, is alleged to have inserted his penis through her armpit in an attempt to masturbate. She alleges that she got up and pushed him away. She further alleges that the petitioner managed to ejaculate on her clothes. Whether any such incident happened or not or whether the allegations are improbable need not be delved into detail at this stage as the bone of contention raised in this petition is with regard to the jurisdictional competence of the learned Magistrate to summon the petitioner suo motu.
6. The learned Senior counsel would contend that at the stage of investigation, there is no power or authority available to the Court either by virtue of any statutory provision or by way of judicial precedent to hold that a prima facie case is made out under Section 376 of the IPC when no application for cancellation of bail has been filed by the prosecution. The learned Senior counsel would also refer to the order passed by the learned Magistrate and it was submitted that the Court had taken note of the prosecution allegation that it was a case of rape. However, in view of the fact that the incident had taken place in a crowded bus and taking note of the improbability of the version, the learned Magistrate had decided to grant bail to the petitioner. The petitioner was in custody from 17.11.2018 till 23.11.2018 and it was thereafter that bail was granted on stringent conditions. Essentially, the contention is that bail having been granted in a non bailable offence, further addition of a graver offence will not clothe the Court below to issue an order as has been done in the instant case.
7. I have heard the learned Public Prosecutor, who submitted that there is no reason for this Court to interfere under Section 482 of the Code. It is submitted that the learned Magistrate was well justified in directing the petitioner to appear as the Section 437(5) would clothe him with the powers to issue an order as rendered in the instant case.
8. I have anxiously considered the submissions advanced.
9. There cannot be any doubt that if under Chapter XXXIII of the Code (in short, "the Code"), once bail is granted, it shall be in force unless the same is cancelled by the appropriate court. Sub section (5) of Section 437 of the Code provides that any Court which has released a person on bail under sub-section (1) or sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. The object of Section 437(5) of the Code is to enable the court on sufficient materials being placed before it to cancel the bail granted or to direct that such person be arrested and committed to custody. This sub-section contemplates a situation where a person enlarged on bail has misused the freedom granted or has disobeyed the conditions imposed or has imperiled the smooth course of investigation or has done such acts, as, in the opinion of the court, are sufficient to cancel the bail already given. Section 437(5) does no contemplate a formal application to be filed by the investigating officer.
10. In Prahlad Singh Bhati v. NCT, Delhi and Another [(2001) 4 SCC 280], more or less a similar question had arisen before the Apex Court. In that case, a case was registered against the accused under Sections 306 and 498 A of the IPC. After the investigating officer recorded the statements of the witnesses under Section 161 of the Cr.P.C, the accused moved an application for grant of anticipatory bail under Section 438 of the Cr.P.C. The learned Additional Sessions Judge granted interim bail observing that if on facts, a case under Section 302 of IPC is made out against the accused, the State shall be at liberty to arrest him. Subsequently, a charge sheet was filed against the accused under Sections 302, 406 and 498A of the IPC by the investigating agency and the accused was directed to appear before the Metropolitan Magistrate. As he failed to appear before the Court, non-bailable warrants were issued against him. In the meanwhile, the accused filed a petition before the High Court under Section 482 of the Cr.P.C, suppressing the fact that a charge sheet under Section 302 of the IPC had been laid. While the matter was pending consideration, the accused moved an application under Section 438 of the Cr.P.C before the learned Additional Sessions Judge and a direction was issued to the accused to surrender before the Magistrate after holding that no ground was made out for cancellation of bail. The accused appeared before the learned Magistrate and he was admitted to bail by the learned Magistrate. This order was challenged by the father of the deceased before the Supreme Court. The Apex Court held as follows:
6. Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a Court of Session yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Session for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code in respect of a person who is suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail.
7. Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Session, the Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.
8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
9. In the instant case while exercising the jurisdiction, apparently under Section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The Magistrate referred to certain facts and the provisions of law which were not, in any way, relevant for the purposes of deciding the application for bail in a case where the accused was charged with an offence punishable with death or imprisonment for life. The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. Neither Section 437(5) nor Section 439(1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused for an offence punishable under Sections 498-A, 306 and 406 IPC. The Magistrate committed an irregularity by holding that “I do not agree with the submission made by the learned Prosecutor inasmuch as if we go by his submissions then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not in the spirit of law”. With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. Instead of referring to the grounds which entitled the respondent-accused the grant of bail, the Magistrate adopted a wrong approach to confer on him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail.
(emphasis supplied)
11. In other words, it was held that with the change of the nature of the offence, the accused becomes dis-entitled to the liberty granted to him in relation to a minor offence, if the offence is altered to an aggravated one. It is further held that the approach of the learned Magistrate conferring bail to the accused without referring to the grounds which entitled the accused to grant of bail was erroneous.
12. In Hamida v. Rashid @ Rasheed and others, [2007 (6) Scale 517], the Hon'ble Supreme Court had occasion to consider the question as to whether the High Court was justified in entertaining a petition under Section 482 to permit the accused to be in bail to enable him to be on bail. That was a case, wherein the accused were released on bail when the case was initially registered under Sections 324, 352, 506 of the IPC. Subsequently, the injured died and an offence under Section 304 of IPC was added. The accused then moved a petition under Section 482 of the Code before the High Court secured an order that the accused shall continue to remain on bail. While deprecating the practice, it was held as follows:-
“In the case in hand, the accused respondents could apply for bail afresh after the offence had been converted into one under Section 304, IPC. They deliberately did not do so and filed a Petition under Section 482, Cr.P.C in order to circumvent the procedure whereunder they would have been required to surrender as the Bail Application could be entertained and heard only if the accused were in custody. It is important to note that no order adverse to the accused respondents had been passed by any Court nor there was any miscarriage of justice or any illegality. In such circumstances, the High Court committed manifest error of law in entertaining a Petition under Section 482, Cr.P.C and issuing a direction to the Subordinate Court to accept the sureties and bail bonds for the offence under Section 304, I.P.C The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506, IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries and the case had been converted into one under Section 304 IPC without any Court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for grant of bail under Section 439 of Cr.P.C, though available to the accused respondents, having not been availed of, the exercise of power by the High Court under Section 482, Cr.P.C is clearly illegal and the impugned order passed by it has to be set aside.
13. In Ahmed Basheer v. Sub Inspector of Police [2013 (4) KHC 58], a similar question had cropped up for consideration. A crime was registered against the accused for bailable offences and in the course of investigation non bailable offences were incorporated. While the offences were bailable, the accused was granted bail by the police after execution of bond. When graver offences were added, an application was filed under Section 438 of the Cr.P.C. This Court held as follows:
“6. In the present case petitioners(accused) were released on bail by police at a stage when they were accused of a bailable offence. When investigation has revealed that the offence committed by them was an aggravated one, a non-bailable offence, they become dis-entitled to the liberty granted to them in relation to the minor offence. In such a case no orders from the Sessions Court or High court under section 439(2) of the Code is warranted for their arrest by police. Their previous release on bail by police when they were proceeded only for bailable offence would no way shield them from arrest by police if investigation disclose their culpability in a non bailable offence. Even where a person is granted bail by the court under section 436(1) of the Code, if he is later proceeded for a non bailable offence in the same crime no cancellation of bail need be applied by investigating officer but only informing the court of inclusion of the aggravated offence for issue of direction to the accused to apply for bail again for the graver offence. No order of cancellation of bail is required or called for. The argument canvassed by counsel that a person arrested and released on bail under section 436(1) of the Code can be rearrested only under an order passed only by Sessions Court or High Court under section 439 (2) of the Code has no merit. The words 'under this Chapter' in sub section (2) of Section 439 do not postulate that a person released on bail under section 436(1) of the Code, whether it be by police or court, can be rearrested only by an order of the Sessions Court or High Court. What is provided under that sub section is a plenary power to the High Court or Court of Session for revoking or cancelling bail granted to any person under Chapter XXXIII of the Code for arresting and committing him to custody where circumstances demand such an order to advance the ends of justice. Where no cancellation or revocation of a bail granted in relation to a bailable offence is needed or called for when the person granted bail is proceeded for an aggravated non bailable offence sub section (2) of Section 439 of the Code has no applicability at all. View expressed by this court in Biju v. State of Kerala (2000(2) KLT 495) that "when an accused has been released on bail under section 436 of the Code and later a non bailable offence is added, his bail can be cancelled only under section 439(2) or under section 437(5) Cr.P.C and that too on misuse of liberty granted" cannot hold good in the light of judicial pronouncement rendered over that question by the Apex Court in Prahlad Singh Bhati's case referred to above. In a fact situation where a person has been released on bail when proceeded with for a bailable offence alone, adding of aggravated non bailable offence against him in the crime dis-entitle him to the liberty granted in respect of the minor offence. In such a case no question of revoking or cancelling the bail granted earlier for the minor bailable offence is called for.
7. Petitioners who are now proceeded for an aggravated offence are dis-entitled to the liberty granted to them in respect of the minor offence. They have been released by police earlier on executing a bond directing their appearance before court is not a shield preventing their arrest when they are proceeded in the same crime for an aggravated offence. “
14. The Patna High Court in Sita Ram Singh and another v. State of Bihar, [2002 (1) PLJR 693] had occasion to consider a similar question and in paragraph 12 of the judgment, it was observed as follows:-
"The aforesaid judgment clearly holds that on a serious change in the nature of the offence the accused becomes, dis-entitled to the liberty granted to him in relation to a minor offence and in such circumstances, the correct approach for the court concerned would be to apply its mind afresh as to whether the accused is entitled for grant of bail, in the changed circumstances. If the court finds that the accused is still entitled for bail keeping his past conduct etc. in mind, the prayer for cancellation can be rejected otherwise the bail granted for the minor offence may justifiably be cancelled and the accused be taken in custody."
In Shukhpal v. State of Rajasthan [1986 (1) RLW 283], the Rajasthan High Court has held as follows:-
"When a person is on anticipatory bail and some new offences have been added during investigation, then police cannot arrest an accused by adding a nonbailable offence. The police must seek an order from the court for cancellation of bail already granted to a person."
(iii) Again, the Rajasthan High Court in Gheesya and others v. State of Rajasthan, 1989 (1) III Crimes 524 has followed the same view. In para 10 of the judgment, the Court has held thus:
"10. The principle that when a person is released on bail or released on anticipatory bail, he cannot be arrested if another offence is found to have been committed by him at the time of investigation of the case, is well settled and if the court considers it proper then the bail granted can be cancelled under Section 437(5) and under Section 439(2) of Cr.P.C."
The Orissa High Court in Kalia @ Saroj Praharaj v. State of Orissa [2000 (2) Crimes 331] has held as follows:-
"4. ......... Once the accused against whom a case has been registered for commission of a non-bailable offence is released on bail, he cannot be re-arrested if the case is converted to a serious offence that provides severe punishment."
15. Thus, there cannot be any doubt that the learned Magistrate was justified in issuing summons to the petitioner to apply its mind afresh and to consider whether, he can be permitted to be on bail even in the changed circumstances. In that view of the matter, the learned Magistrate cannot be faulted for issuing a direction to the petitioner to appear before the Court below. However, the court below will not be justified in cancelling the bail already granted to the petitioner unless there are supervening circumstances as detailed above. The court below shall bear in mind that 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 conducive to a fair trial to allow the accused to retain his freedom during the trial. A bail once granted cannot be cancelled on the off chance or on mere suppositions. When a request is made, the prosecution, can establish its case by showing on a preponderance of probabilities, and not beyond reasonable doubt, that the accused has attempted to tamper or has tampered with its witnesses, or has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice. The power to take back in custody an accused, who has been enlarged on bail, has to be exercised, with care and circumspection but the power, though of an extraordinary nature, is meant to be exercised in appropriate cases.
16. In X v. The State of Telangana and Ors. [2018 (7) SCALE 494] , the Apex Court had occasion to consider the principles regarding cancellation of Bail and after referring to the earlier decisions in Central Bureau of Investigation, Hyderabad v. Subramani Gopalakrishnan [(2011) 5 SCC 296] and that in Dataram Singh v. State of Uttar Pradesh [2018 (2) SCALE 285].
It was held 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. “
17. In the instant case, it is evident from the report dated 11.12.2018 filed to the application for modification of bail condition that the investigating officer has no case that the petitioner has abused the liberty granted to him or has made any attempt to interfere with the course of justice. As no circumstances requiring cancellation of bail already granted is brought out, the apprehension expressed by the petitioner that he would be remanded if he appears before the learned Magistrate does not appear to be justified.
18. For the aforementioned reasons, I direct the petitioner to appear before the learned Magistrate within a period of ten days from today. The learned Magistrate shall apply its mind afresh and consider whether, the petitioner is entitled to continue on bail, in the changed circumstances. If so warranted, the petitioner may apply for fresh bail and the same shall be considered and orders shall be passed by the learned Magistrate on the same day itself. This order, however, shall not be a bar to the prosecution to take appropriate steps under Section 437(5) of the Code if the same is warranted and if any such request is made, the learned Magistrate shall consider the same in accordance with law.
This petition is disposed of accordingly.
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