Abdul Basheer vs State Of Kerala

Petitioner is the sole accused in Crime No. 426 of 2017 of Kunnamangalam Police Station, now pending as S.C.No. 600/2018 on the files of the Sessions Court (Marad Cases) Kozhikode. The prosecution allegation is that the petitioner had murdered his wife and minor child, thereby committing offences punishable under Sections 302, 342, 447, 449, 354, 392, 325 and 201 of IPC. The petitioner was arrested on 25.5.2007 and remanded to custody. As per Annexure A1 order dated 4.12.2017, the petitioner was granted bail by this Court subject to certain conditions. Condition No.4 of Annexure A1 required the petitioner to refrain from committing offences while on bail. But, on 2.12.2019, Crime No. 693 of 2019 was registered against the petitioner at the Kozhikode Town Police Station, for the offence under Section 379 IPC. Therefore, prosecution sought cancellation of the bail granted to the petitioner alleging violation of condition No.4 therein. By Annexure A5 order, the learned Sessions Judge cancelled the bail and ordered re-arrest of the petitioner. Hence this Crl.M.C.

Heard Sri.Srinath Girish, learned Counsel for the petitioner and Smt. P.P.Sreeja, the learned Public Prosecutor.

Learned counsel for the petitioner contended that, mere registration of a crime cannot be perceived as commission of an offence and as such the court below went wrong in cancelling the bail on the premise that condition No.4 in Annexure A1 order was violated. Reliance is placed on the decision of the Apex Court in Dolat Ram v State of Haryana [(1995) 1 SCC 349] to contend that cogent and overwhelming circumstances are necessary for cancelling the bail already granted. Attention is drawn to the decision in Khajim@ Khajimulla Khan v State of Karnataka (Crl.R.P No.1364 of 2019), wherein the Karnataka High Court interfered with a lower court order cancelling bail, finding that the bail should not have been cancelled for reason of registration of subsequent crimes and held that a person can be held to have committed a crime only when a court, after considering the material before it and hearing the parties, forms an opinion to that effect at the time of framing charge.

The learned Public Prosecutor countered the contention and submitted that, violation of bail condition, by itself, is sufficient reason for cancelling the bail and the rigor of cancellation under other circumstances will not be applicable when bail is cancelled for violation of the conditions.

The legal proposition that in the absence of cogent and compelling circumstances, bail once granted cannot be cancelled, is well settled. At the same time, there cannot be any doubt regarding the court's power to cancel bail, when the conditions upon which bail was granted is violated by the accused. As far as the instant case is concerned, there is no dispute to the fact that subsequent to his release on bail, the petitioner was arrayed as accused in a crime alleging commission of the offence under Section 379 of IPC. It is alleged that the petitioner had deceived the de facto complainant to hand over his three wheeler motorcycle and had committed theft of the vehicle by altering its registration number.

In my opinion, connotation of the word 'commit' used in the context of imposition of a condition in a bail order, requiring the accused not to commit any crime, is different from its meaning in Section 229 Cr.P.C. Under Section 439, bail is granted to a person 'accused of an offence' and in custody. As per Section 154 (1), the officer-in-charge of a police station is duty bound to register the FIR, when information relating to the 'commission of a cognisable offence' is given. Hence, the condition that the accused shall not commit any offence while on bail, should be understood as any act, leading to registration of another crime, based on the accusation of the accused having committed a cognisable offence. Perceived in that manner, the learned Sessions Judge was justified in cancelling the petitioner's bail for violation of condition No.4 in Annexure A1.

In the result, the Crl.M.C is dismissed.