Sreerag K.D. & Anr. vs State By Bellanduru Police & Anr.

"Wherefore, the Petitioners most respectfully pray that this Hon'ble Court kindly allow this Criminal Petition and set aside order dtd:28.04.2026 passed in C.C.No.48895/2025 of Bellandur Police, passed by the XLI Addl. Chief Judicial Magistrate, Bengaluru and restore the order of regular bail dtd:23.09.2025 granted in Cr. No.366/2025 (C.C.No.48895/2025) of Bellanduru Police, passed by the XLI Addl. Chief Judicial Magistrate, Bengaluru, in the interest of justice."

"8.

The afore-narrated facts, dates and link in the chain of events are all a matter of record. The genesis of the criminal proceedings is a civil dispute pending between the parties, pertaining to the management of the Temple, before the trial Court in Kerala in O.S.No.49 of 2025. In the said civil case, the petitioners file an interlocutory application for temporary injunction. The trial Court on 24-06-2025, in IA 2/2025 in O.S.No.49 of 2025 passes the following order:

“O R D E R

This is an application filed by the plaintiffs in O.S.49/2025 under Order 39 Rule 1 and S.151 CPC seeking a temporary injunction.

2.

Averments of the petitioners are as follows: The first petitioner is the trust, namely ‘Sri Vishnumaya Chathan Swamy, Kanadi Devasthanam Tharavad’, represented by its trustee. The petitioner nos. 2 to 7 are the trustees of the first petitioner, and the respondent is the Managing Trustee of the first petitioner. K.V. Damodaran, the father of the petitioner nos. 4 and 5 and the respondent, was an ardent devotee of Sri Vishnumaya Chathan Swamy, and he served as an oracle in Avanengad Kalari. During his lifetime, K.V. Damodaran consecrated the idol of Sri Vishnumaya Chathan Swamy in his self-acquired property. He named it as ‘Kanadi Devasthanam Tharavad Kshethram’. K.V. Damodaran worshipped the idol of Sri Vishnumaya Chathan Swamy, conducted the rituals by himself, and permitted the public to worship in the temple and to make offerings. Out of the income so generated, K.V.Damodaran made the temple to thrive and prosper. With the intention of bequeathing all his earnings to Sri Vishnumaya Chathan Swamy, K.V. Damodaran executed a will on 26.10.1995 and had it registered as 129/3/1995 of SRO, Anthikkad. K.V. Damodaran died on 23.09.2003, and the will has come into operation. As per the terms of the will, the first petitioner trust has come into being. The respondent has been made the Managing Trustee. The other sons of K.V. Damodaran are designated as co-trustees of the first petitioner in the will. No rights have been given to his daughters by K.V. Damodaran in the trust. The co-trustees are directed to assist the Managing Trustee in his work to maintain the trust. Through his will, K.V. Damodaran has directed his lineal descendants to administer the first petitioner and to expend the revenue generated for the improvement of the temple and the family. Ignoring the mandate in the will, the respondent changed the name of the trust to ‘Peringottukkara Devasthanam’. Against the purposes for which the trust was constituted, the respondent has been using it for his financial gain. He has started bank accounts in his name and the name of ‘Peringottukkara Devasthanam’. The respondent has made no attempt to create an account in the name of the first petitioner trust. Amounts deposited by the devotees for several offerings in the temple fall into the hands of the respondent, and he refuses to reveal the accounts of the trust. The respondent has also failed to conduct the yearly audit in the first petitioner trust. Using the money generated from the trust, the respondent has purchased numerous properties and vehicles in the names of his daughters and himself. There are further endeavours on the part of the respondent to exhibit himself as the sole owner of the trust. The respondent is thus operating contrary to the terms of the will of K.V. Damodaran. O.S.2549/2024, O.S.14/2025, O.S.27/2025, and O.S.245/2025, filed by the petitioners, are pending before various courts at Thrissur. The co-trustees have been performing the rituals in the temple for years. The respondent is trying to oust them from the temple and make it his own. On 03.02.2025 while the petitioner no. 2 was serving as an oracle and delivering prophecies, and the other co-trustees translating it to the devotees, the respondent, his henchmen, the respondent's daughter and his son-in-law, came to the temple, obstructed the conduct of the ritual, assaulted the petitioner nos. 2 to 7 and caused them to leave the temple premises. Thereafter, the respondent closed the temple doors from the inside and prevented the petitioner nos. 2 to 7 from entering the temple again. The petitioners have lodged a case with the police. The respondent is not entitled to prevent the petitioners from entering and performing rituals in the first petitioner trust. It is highly necessary to prevent the respondent from causing hindrance to the conduct of the rituals by the petitioners in the temple, and for the same, this application is filed seeking a temporary prohibitory injunction.

3.

An objection is filed by the respondent, and it is as follows: There are no co-trustees for Kanadi Devasthanam Tharavad. The petitioner no. 3 is not entitled to represent the trust. A will was executed by K.V. Damodaran on 26.10.1995, and the respondent was appointed as the Managing Trustee of Kanadi Devasthanam Tharavad. There is only a Managing Trustee for Kanadi Devasthanam Tharavad and no co-trustees as claimed. The petitioners are not entitled to institute any litigation against the respondent. By the will, the Kanadi Devasthanam Tharavad came into existence. The respondent will continue as the Managing Trustee of Kanadi Devasthanam Tharavad during his lifetime, and he is entrusted with the administration of the properties of the trust. The petitioners will acquire a role in the management of the trust only after the lifetime of the respondent. Thereafter, the petitioners can appoint another Managing Trustee and co-trustees for the administration and management of Kanadi Devasthanam Tharavad. Sri Vishnumaya Chathan Swamy temple is located in 46 cents of property in survey no.514 of Kizhakkumuri village. The respondent is the chief priest and oracle of Kanadi Devasthanam Tharavad. He renders his services to Sri Vishnumaya Chathan Swamy and invests his time in performing rituals at the temple, receiving payment in return. He also earns money from his service as an astrologer. With the intention of causing obstructions to the festival conducted at Sri Vishnumaya Chathan Swamy temple from 21.12.2024 to 29.12.2024, the petitioner nos. 2 to 7 trespassed into the house of the respondent and threatened them. They also pushed down the respondent's grandson. Thereafter, on 04.01.2025 at around 4:30 p.m., they trespassed into the office of the temple, hurled abuses at the employees, threatened them, and forcefully took the office registers. Towards the same, the respondent lodged a complaint before the SHO, Anthikkad, and a case has been registered. The respondent has also approached the Hon’ble High Court for police protection. At this juncture, the petitioner nos. 2 to 7 shall not be allowed to enter into the petition schedule property, and dismissal of the application is hence prayed.

4.

Heard both sides. To duly discharge their obligations under the will executed by K.V. Damodaran, the petitioners have approached the court to bring an end to the alleged high-handed acts of the respondent. The petitioner nos. 2 to 7 allege obstruction by the respondent in their conduct of rituals in the first petitioner trust and they accuse him of violating their rights over the petition schedule property.

5.

The petitioner nos. 2 to 7 and the respondent are the descendants of K.V. Damodaran. Admittedly, K.V. Damodaran, a devotee of Sri Vishnumaya Chathan Swamy, had constructed a temple and consecrated the idol. Expressing his wishes and prescribing the mandate to run the temple after his lifetime, K.V. Damodaran executed a will. He died on 23.09.2003, and the will has come into effect by which the Kanadi Devasthanam Tharavad came into existence in the form of a trust. No dispute has been raised by the respondent regarding the will. Rather, he agrees to have received the status of the Managing Trustee of the first petitioner trust in accordance with the terms of the will. Though the respondent admits the will, he denies the rights claimed by the petitioner nos. 2 to 7 as co-trustees of the first petitioner.

6.

A copy of the will is produced. Primarily, K.V. Damodaran expects his children to live in harmony, to extend all their services to the deity, that is, Sri Vishnumaya Chathan Swamy, and to work for the prosperity of the temple and their family. To ensure the same, K.V. Damodaran constituted a trust by his will, namely Kanadi Devasthanam Tharavad, Kizhakkumuri, Peringottukara, Thrissur, and declared that his assets would devolve upon Sri Vishnumaya Chathan Swamy after his death. Further, K.V. Damodaran appointed his younger son, the respondent, as the Managing Trustee and his other male descendants who have attained majority as the co-trustees of the first petitioner. By the will, K.V. Damodaran directed the co-trustees to assist the Managing Trustee in administering the trust. With the income obtained from the temple, the Managing Trustee, with the assistance of co-trustees, are bound to look after the well-being of the temple and the family.

7.

As per the case of the respondent, the petitioner nos. 2 to 7 do not have any rights in the trust pursuant to the will, and their role will come only after his lifetime. The terms of the will are very clear and unambiguous. At the time of designating the respondent as the Managing Trustee of the first petitioner trust, K.V. Damodaran appointed his other male descendants who have attained majority as its co-trustees. They are vested with the duty to extend assistance to the respondent in the administration of the first petitioner. It is not at all possible to interpret the will in such a manner as argued by the respondent and consider him as the sole trustee of the first petitioner trust. There is nothing available in the will to see that the major male descendants of K.V. Damodaran shall step in only after the death of the respondent. Instead, their part commences along with the constitution of the trust. Thus, undoubtedly, by virtue of the will of K.V. Damodaran, the petitioner nos. 2 to 7 do enjoy the status of co-trustees in the first petitioner trust and can participate in its functioning. Furthermore, in the third page of the will, K.V. Damodaran has stipulated that upon his demise, his sons shall work in unity, serve the deity, and manage the temple to foster prosperity for the family. As discernible from the will, K.V. Damodaran directed all his sons to extend services to Sri Vishnumaya Chathan Swamy, of which the performance of rituals becomes a part. K.V. Damodaran never intended to vest complete authority in the respondent either in the running of the trust or in serving the deity in exclusion of other major male members of the family.

8.

Perusal of the contentions raised by both parties reveals the existence of disputes between them in connection with the running of the first petitioner trust. The will executed by K.V. Damodaran determines the rights of both parties in the management of the trust. Neither of them can deny the rights of the other and claim sole authority over the first petitioner trust. The petitioners allege that the respondent started bank accounts in his name instead of that of the trust to collect the income generated from the temple. According to the petitioners, the respondent has even dared to change the name of the trust to 'Peringottukara Devasthanam', which is not permitted by the will. The petitioners also narrate an incident that occurred on 03.02.2025, in which the respondent and his henchmen obstructed the conduct of the rituals performed by the petitioner nos. 2 to 7 at the petition schedule property. None of these allegations are addressed by the respondent in his counter statement. He simply denies the rights of the petitioner nos. 2 to 7 and challenges their authority to question. Therefore, it appears that there was an attempt on the part of the respondent to exclude the petitioner nos. 2 to 7 from the working of the first petitioner trust. Thus, there exists a prima facie case in favour of the petitioners.

9.

There is no stipulation in the will authorizing the Managing Trustee alone to perform the rituals and do the offerings in favour of Sri Vishnumaya Chathan Swamy. K.V. Damodaran, in his will, has made clear that all his sons shall dedicate themselves to serve the deity. Being the major male descendants of K.V. Damodaran and co-trustees of the first petitioner, the petitioners nos. 2 to 7 are entitled to be involved in the management of the trust and in providing services to the deity. The respondent is not permitted to take any actions that may hinder it. Balance of convenience is also hence in their favour.

10.

The petitioner nos. 2 to 7 are the co-trustees of the first petitioner, and on whom rights are vested by operation of the will of K.V. Damodaran. It is necessary to see that their rights are protected. If the relief sought by the petitioners is not granted, they would certainly sustain an irreparable injury. In this backdrop, I am of the view that the petitioners shall be given the relief sought.

In the result, the application is allowed. The respondent and his henchmen shall not prevent the petitioner nos. 2 to 7 from entering into the temple described in the petition schedule property and from rendering services and performing rituals in favour of the deity.”

“ORDER

Heard the learned counsel for both the petitioner and respondents in part. During the arguments, this Court finds that there is an element of settlement between the parties in this case. Hence, with the consent of both counsels, the matter is referred for mediation. Parties shall present at the Mediation Centre, attached to the High Court of Kerala on 28.07.2025 at 11.30a.m. The Director of the Mediation Centre shall assign the matter to Senior Advocate/Mediator. The Advocate/Mediator may take the service of Senior Counsel for mediation. Until the report of mediation, both parties shall maintain the status quo over the temple and its affairs.

List the matter after the receipt of the mediation report.”

“…. …. ….

13.

Further it is settled law by the catena of decisions that "the accused is to be presumed as innocent until guilt is proved by the prosecution in full-fledged trial by discharging its burden of proof. Until then, it is not just and proper to put the accused in jail as a measurement of punishment in the pre-trail stage." It is settled position of law by the Catena of decisions of Hon'ble Supreme Court and various High Courts that "securing the presence of the accused for trial and protection of witnesses form tampering are the main considerations at the stage of granting bail."

14.

The allegation against petitioners is that petitioners along with other accused all are having with common intention and demand money from the complainant, otherwise they will destroy the name of the temple belongs to the complainant and also tried to control the administration of the Vishnu Maya temple. Hence the complaint. Based on the complaint case registered against petitioners and started investigation. All the offences are not punishable with death or imprisonment for life, it need full-fledged trial about commission the offences. It is urged that the petitioners are ready and willing to furnish surety to the satisfaction of this Court to ensure their attendance before the I.O and the Court and they are also ready to abide by any conditions imposed by Court. As such, possibility of the abscondance of petitioners is too remote. The allegation alleged against the petitioners are purely civil in nature. The petitioners are permanent residents of Thrissur, Kerala. The apprehension and interest of the prosecution that the petitioners may tamper with the prosecution witnesses, flee away from justice can be taken and safeguarded by imposing some suitable conditions. Therefore, I am of the opinion that it is fit case to grant bail. Hence by considering all these aspects, I am of the opinion that the petitioners are entitled for bail and accordingly, I answer the above Point No.1 in the Affirmative.

15.

Point No.2: In view of my findings on Point No.1, I proceed to pass the following:

ORDER

The anticipatory bail petition filed by the petitioners/Accused No.11 and 10/Mr.K.D.Venugopal and Mr.Devadas, under Section 482 of BNSS is hereby allowed and bail application of petitioner No.3, 4 / accused No.8 and 9 are hereby dismissed as withdrawn.

The respondent police are hereby directed to enlarge the petitioners on anticipatory bail in the event of their arrest in Crime No.366/2025 of respondent Police Station for the offence punishable under Sections 46, 61, 62, 308(2), 351(1), 351(2), 351(3), 351(4), 352, 248, 318 of BNS on execution of their personal bond for Rs.1,00,000/- each with one surety for the like sum on the following conditions:

1.

That the petitioners shall appear before the I.O. within 30 days from the date of this order and shall co-operate in the matter of investigation or whenever called by the I.O.

2.

That the petitioners shall mark their attendance once in 30 days preferably on 2^nd Saturday in between 10.00 a.m. to 5.00 p.m. before the Jurisdictional Police till filing the final report.

3.

That the petitioners shall not hold any threat to the complainant and shall not tamper with any of the prosecution witnesses directly or indirectly.

4.

That the petitioners shall furnish their residential address proof and that of their surety.

5.

That the petitioners shall not indulge in similar type of offences in future.

6.

That the petitioner shall appear before the trial court regularly without fail on receipt of the summons.

7.

That if the petitioners fails to obey any of the above said conditions, then this bail order automatically stands cancelled.”

“O R D E R

The averments in the petition are as

follows:- The petitioner is the 3^rd plaintiff in the above numbered suit. The petitioner contended that, as per the order in IA 2/2025, the petitioners are permitted to conduct/perform pooja in the trust temple. As per the order in IA 2/2025, the respondents are restrained from obstructing the petitioners' performance of the pooja. However, even after the order in IA 2/2025, the 1^st defendant is not permitting this petitioner from entering the temple and performing the rituals. After obtaining a copy of the order in IA 2/25, the defendant closed the doors of the temple. However, the defendant permitted other people to enter the temple through a gate near his house, and this respondent was attempting to obstruct the petitioners from entering the temple. This act of the respondents constitutes a violation of the court's order in IA 2/2025. The respondents are violating the order of the court. To enforce and execute the order in IA 2/2025, it is necessary to get the help of the police. Therefore, the petitioner filed this petition to seek police protection to enforce the order of the court in IA 2/2025.

2. The averments in the objection are as follows

:- The petitioners filed this petition on an experimental basis to harass the respondent. This respondent filed CMA 57/2025 before the Hon’ble District court against the order of this court in IA 2/2025. The Hon’ble District court dismissed the said application against which an OP(C) 1657/25 was preferred in Hon’ble High Court. The Hon’ble High Court referred the matter for mediation and mediation talks are going on between the parties. The respondent has been protecting the disputed temple by performing pooja. The petitioners are the respondents, brothers and their children. Many litigations are pending between the respondents and petitioners. On 04.01.25 the petitioners trespassed into the office of the temple and abused the staff and forcibly took away the documents and office registers. The petitioners are highly influential and politically connected. Police protection was ordered in favour of the resplendent by the Hon’ble High Court in WP(C) 784/2025. The Thiruvabharanagal in the temple were stolen and a police complaint was registered against the same. In these circumstances if the petitioners enter into the temple with police protection that would cause inconvenience to the respondent to perform pooja and also cause inconvenience to the devotees for offering prayers. Hence the petition may be dismissed with costs.

3.

Heard both sides. Perused records.

4.

In this case, the court had already issued a temporary injunction order in IA 2/25 after hearing both sides. There is no stay pending against the enforcement of the said order. The plaintiffs' grievance is that, despite the order in their favour, the defendants are not permitting them to enter the temple premises and perform poojas and rituals. Admittedly, the injunction order granted by the court below is in force. The respondent contends that the court below erred in passing the impugned order.

5.

The vital point to be considered is whether the court is entitled to enforce the order in I. A. 2/25 by affording police protection. The Honourable High Court in MOHAMMAD v. MOHAMMED HAJI, 1986 KLT 134 held that the Court can resort to police protection by invoking inherent power for enforcing an order passed. The Honourable Apex Court in Manohar Lal v. Seth Hiralal (AIR 1962 SC 527) held as follows: "S.151 itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Court by virtue of its duty to do justice between the parties before it."

6.

From the decisions above, it is clear that whenever the interests of justice require compelling attention of the court to do justice to the party who is faced with a violation of his legal rights, the court should definitely prevent such transgressions or violations. For that, the court can fall back on its powers under Section 151 of the CPC. In this case, the respondents admitted that, as per the order dated June 24, 2025, in IA 2/25, there is an order restraining them from preventing the petitioners from entering the temple and rendering services and performing rituals in favour of the deity at the disputed temple. Admittedly, there is no stay order pending against the order dated June 24, 2025, in IA 2/25 by the Appellate Court. The respondent contended that numerous litigations are pending between him and the petitioners. According to the respondent if the petitioners enter the temple with police protection, it would cause inconvenience to the respondent in performing pooja and also cause inconvenience to the devotees in offering prayers. This court, as per the order dated June 24, 2025, in IA 2/25, has issued an order restraining the respondent from preventing the petitioners from entering the temple and rendering services and performing rituals in favour of the deity at the disputed temple. In view of the rival contentions raised by the respondent in the objection to the petition, the apprehension of the petitioners can not be said to be unreasonable. In such circumstances, it is always open to the court to render necessary assistance to the aggrieved party by invoking powers under S.151 CPC. In view of the discussions above, the petition is liable to be allowed.

In the result, the petition is allowed. The SHO, Anthikkad, is directed to provide necessary police aid to the petitioners in implementing the order dated 24/6/2025 in IA 2/25.”

“ORDER

Adv. Sri. T. Naveen takes notice for the respondents.

2.

Heard the learned counsel for the petitioner and the learned counsel for the respondents.

3.

It is submitted omitted by the learned counsel for the petitioner that this court already passed an order of status quo in an earlier petition, OP(C) No.1657/2025 and later the matter has been referred to the mediation center on 21.07.2025. The matter is under mediation and which is under progress.

4.

Meanwhile, the respondents filed an IA under Section 151 of the Code of Civil Procedure, 1908, before the Sub Court, Thrissur and with the police protection, they came inside the temple and conducting the poojas which is against the status quo order passed by this Court in OP (C) No.1657/2025. The respondents counsel submit that there is no such order passed by this Court, but the respondents were conducting the pooja with the help of Police and they want to continue to do the pooja in the temple.

5.

Considering the facts and circumstances of the case, when this Court granted order of status quo and referred the matter to the mediation center, if the respondents want any clarification, the respondents ought to have approach this Court for any clarification or seeking permission to conduct the poojas or rituals etc. But, the trial court cannot interpret the order of this court and passes order which against the propriety of the High Court order.

6.

Such being the case, the order passed by the trial court in IA No.17/2025 in OS No.49/2025 dated 29.09.2025 is hereby stayed.

7.

The parties shall inform the progress in the mediation.

Post on 13.10.2025.”

“10.

Point No.1: Learned Public Prosecutor argued that the respondents have got released by this Court in Crl.Misc.No.7934/2025 on 29.09.2025 that they have got release by this Court. That the Court has imposed conditions, inspite of Court order that the respondent have not obey the Court order condition No.5, it amounts to contempt of Court. Therefore he prays to allow the application and to cancel the bail order.

11.

Counsel for the respondents argued that the respondents are no way intention to disobey the order passed by the Court. Inspite of it the prosecution has filed the application to cancel the bail order. It is not intentional one but bonafide one. Therefore he prays to dismiss the application filed by the prosecution.

12.

It is settled principles of law that bail once granted can be cancelled if the accused misuses the liberty or violates the conditions imposed by the Court. On perusal of material placed on record, it is evident that the prosecution has produced detailed report stating that the petitioner is involved in crime No.886/2025 U/Sec.296(b), 324(4), 329(3) r/w. Sec.3(5) of BNS and also the petitioner has violated the other conditions and I.O also filed detailed report in this regard, which are indicated that the accused had approached and threatened the prosecution witnesses. The said material is prima-facie credible supported by the document.

13.

The records further discloses that the accused has not complied with the condition of not to tamper or threaten the prosecution witnesses and also other conditions. The conduct of the accused clearly demonstrates that he has disregarded the authority of the Court and the sanctity of the bail condition. It is noted that the bail is not an absolute right but a conditional liberty, and the accused is bound to strictly adhere to the terms imposed. When such conditions are violated, the Court is empowered to cancel the bail to ensure fair administration of justice.

14.

The Hon’ble Supreme Court has consistently held that interference with witnesses, likelihood of tampering with evidence or violation of conditions are strong grounds for cancellation of bail. In the present case the act of threatening witnesses strikes at the root of a fair trial. Non-compliance with conditions reflects deliberate disobedience. The accused has misused the concession granted by the Court. Hence this Court is of the opinion that continuation of bail would not be conducive to a fair, trial and justice. In view of the above discussion, this Court holds that the prosecution has successfully established that the accused has violated the bail conditions and misused the liberty granted. Hence my answer to the above point is in the Affirmative.

15.

Point No.2 :-In view of the discussion made

on point No.1, I proceed to pass the following:-

O R D E R

The bail petition under Section 439(2) of Cr.P.C filed by the prosecution is hereby allowed.

The bail granted to the accused vide order dated: 29.09.2025 in Crl.Misc.No.7934/2025 (Cr.No.366/2025) of Bellanduru Police Station is hereby cancelled.

The accused is directed to surrender before this

Court within 7 days from the date of this order.

In case of failure to surrender, the investigation officer is at liberty to secure the presence of the accused in accordance with law.” (Emphasis added at each instance)

“……. ……. …….

11.

A plain reading of the order referred to above would indicate that the anticipatory bail was granted by the High Court as prayed for but the same was limited only upto filing of the chargesheet. Once the chargesheet was filed, the protection earlier granted came to an end and in such circumstances, the appellant once again prayed for anticipatory bail by way of a fresh application which came to be rejected by the High Court.

12.

We fail to understand what is the idea in restricting the grant of anticipatory bail upto the stage of completion of investigation and filing of the chargesheet.

13.

Either the Court may grant anticipatory bail or may decline. However, once having exercised its discretion in favour of the accused upon consideration of the overall matter, there was no good reason for the High Court to restrict it upto the stage of filing of the chargesheet.

14.

In the earlier order passed by the High Court referred to above in para 10 the High Court observed that having regard to the nature of the allegations, the role of the applicant and all the facts and circumstances of the case, the accused could be said to have made out a case for grant of anticipatory bail.

15.

If the aforesaid be so, then the High Court should have indicated while declining to grant anticipatory bail by way of the impugned order as to what was so particular or what was so gross that the High Court thought fit not to grant anticipatory bail.

POSITION OF LAW

16.

In Bharat Chaudhary v. State of Bihar, (2003) 8 SCC 77, this Court held that there is no restriction in Section 438 Cr. P.C. to grant anticipatory bail even when charge sheet has been filed and cognizance is taken. The relevant part of the said decision reads as thus:—

“7.

From the perusal of this part of Section 438 of CrPC, we find no restriction in regard to exercise of this power in a suitable case either by the Court of Session, High Court or this Court even when cognizance is taken or a charge-sheet is filed. The object of Section 438 is to prevent undue harassment of the accused persons by pre-trial arrest and detention. The fact, that a court has either taken cognizance of the complaint or the investigating agency has filed a charge-sheet, would not by itself, in our opinion, prevent the courts concerned from granting anticipatory bail in appropriate cases. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. In our opinion, the courts i.e. the Court of Session, High Court or this Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under Section 438 of CrPC even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so.”…

[Emphasis supplied]

17.

The very same view as aforesaid came to be reiterated in Ravindra Saxena v. State of Rajasthan, (2010) 1 SCC 684. In the said case the High Court had rejected the application seeking anticipatory bail on the ground that the chargesheet had been filed, such approach was held to be erroneous. The Court observed that a Constitution Bench in Shri Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, clearly held that the anticipatory bail can be granted at any time so long as the applicant has not been arrested:

“7.

We are of the considered opinion that the approach adopted by the High Court is wholly erroneous. The application for anticipatory bail has been rejected without considering the case of the appellant solely on the ground that the challan has now been presented.

8.

We may notice here that the provision with regard to the grant of anticipatory bail was introduced on the recommendations of the Law Commission of India in its Forty-first Report dated 24-9- 1969. The recommendations were considered by this Court in a Constitution Bench decision in Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri) 465]. Upon consideration of the entire issue this Court laid down certain salutary principles to be followed in exercise of the power under Section 438 CrPC by the Sessions Court and the High Court. It is clearly held that the anticipatory bail can be granted at any time so long as the applicant has not been arrested. When the application is made to the High Court or the Court of Session it must apply its own mind on the question and decide when the case is made out for granting such relief.”

[Emphasis supplied]

18.

In Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, the following questions were referred to the larger Bench of five judges:

i.

Whether the protection granted to a person under Section 438 CrPC should be limited to a fixed period so as to enable the person to surrender before the trial court and seek regular bail?

ii.

Whether the life of an anticipatory bail should end at the time and stage when the accused is summoned by the court?

19.

The Constitution Bench answered the reference as under:

“91.1.

Regarding Question 1, this Court holds that the protection granted to a person under Section 438 CrPC should not invariably be limited to a fixed period; it should enure in favour of the accused without any restriction on time. Normal conditions under Section 437(3) read with Section 438(2) should be imposed; if there are specific facts or features in regard to any offence, it is open for the court to impose any appropriate condition (including fixed nature of relief, or its being tied to an event), etc.

91.2.

As regards the second question referred to this Court, it is held that the life or duration of an anticipatory bail order does not end normally at the time and stage when the accused is summoned by the court, or when charges are framed, but can continue till the end of the trial. Again, if there are any special or peculiar features necessitating the court to limit the tenure of anticipatory bail, it is open for it to do so.”

[Emphasis supplied]

20.

The following observations made by the Constitution Bench in paras 77.3 and 77.4 respectively of Sushila Aggarwal (supra) are also relevant which reads as under:

“77.3.

In these circumstances, the mere fact that an accused is given relief under Section 438 at one stage, per se does not mean that upon the filing of a charge-sheet, he is necessarily to surrender or/and apply for regular bail. The analogy to “deemed bail” under Section 167(2) with anticipatory bail leads this Court to conclude that the mere subsequent event of the filing of a charge-sheet cannot compel the accused to surrender and seek regular bail. As a matter of fact, interestingly, if indeed, if a charge-sheet is filed where the accused is on anticipatory bail, the normal implication would be that there was no occasion for the investigating agency or the police to require his custody, because there would have been nothing in his behaviour requiring such a step. In other words, an accused, who is granted anticipatory bail would continue to be at liberty when the charge-sheet is filed, the natural implication is that there is no occasion for a direction by the court that he be arrested and further that he had cooperated with the investigation.

77.4.

At the same time, however, at any time during the investigation were any occasion to arise calling for intervention of the court for infraction of any of the conditions imposed under Section 437(3) read with Section 438(2) or the violation of any other condition imposed in the given facts of a case, recourse can always be had under Section 439(2).”

[Emphasis supplied]

21.

In the High Court of Delhi v. CBI, 2004 SCC OnLine Del 53, somewhat similar question arose whether Section 170 Cr. P.C. prevents the Trial Court from taking a charge-sheet on record unless the accused is taken into custody. The Delhi High Court observed as under:

“15.

Word “custody” appearing in this section does not contemplate either police or judicial custody. It merely connotes the presentation of accused by the investigating officer before the Court at the time of filing of the charge-sheet whereafter the role of the Court starts. Had it not been so the investigating officer would not have been vested with powers to release a person on bail in a bailable offence after finding that there was sufficient evidence to put the accused on trial and it would have been obligatory upon him to produce such an accused in custody before the Magistrate for being released on bail by the Court.

16.

In case the police/investigating officer thinks it unnecessary to present the accused in custody for the reason that the accused would neither abscond nor would disobey the summons as he has been cooperating in investigation and investigation can be completed without arresting him, the IO is not obliged to produce such an accused in custody.

xxxx xxxx xxxx

19.

It appears that the learned Special Judge was labouring under a misconception that in every non-bailable and cognizable offence the police is required to invariably arrest a person, even if it is not essential for the purpose of investigation.

20.

Rather the law is otherwise. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of cooperation is provided by the accused to the investigating officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary. Such an arrest may also be necessary if the investigating officer concerned or officer in charge of the police station thinks that presence of the accused will be difficult to procure because of grave and serious nature of crime as the possibility of his absconding or disobeying the process or fleeing from justice cannot be ruled out.”

[Emphasis supplied]

22.

The aforesaid decision of the Delhi High Court received imprimatur of this Court in Siddharth v. State of Uttar Pradesh, (2022) 1 SCC 676, wherein it was observed as under:

“9.

We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 CrPC that it does not impose an obligation on the officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the charge-sheet being filed nonbailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the investigating officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word “custody” appearing in Section 170 CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the investigating officer before the court while filing the chargesheet.

10.

We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it [Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172]. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.

xxxx xxxx xxxx

12.

In the present case when the appellant has joined the investigation, investigation has completed and he has been roped in after seven years of registration of the FIR we can think of no reason why at this stage he must be arrested before the chargesheet is taken on record. We may note that the learned counsel for the appellant has already stated before us that on summons being issued the appellant will put the appearance before the trial court.”

23.

Further, this Court in Satender Kumar Antil v. CBI, (2022) 10 SCC 51 said in clear terms that the mandate laid down in Siddharth (supra) should be strictly complied with.

24.

In Md. Asfak Alam v. State of Jharkhand, 2023 SCC OnLine SC 892 under a similar situation where the appellant therein had been granted interim protection by the High Court under Section 438 CrPC and the charge-sheet was filed before the application seeking pre-arrest bail was finally heard, the High Court rejected the pending anticipatory bail and directed the appellant to surrender before the competent authority and seek regular bail. In this backdrop, this Court observed as under:

“14.

……What appears from the record is that the appellant cooperated with the investigation both before 8-8-2022, when no protection was granted to him and after 8-8-2022, when he enjoyed protection till the filing of the charge-sheet and the cognizance thereof on 1-10-2022. Thus, once the charge-sheet was filed and there was no impediment, at least on the part of the accused, the court having regard to the nature of the offences, the allegations and the maximum sentence of the offences they were likely to carry, ought to have granted the bail as a matter of

course. However, the court did not do so but mechanically rejected and, virtually, to rub salt in the wound directed the appellant to surrender and seek regular bail before the trial court. Therefore, in the opinion of this Court, the High Court fell into error in adopting such a casual approach. The impugned order of rejecting the bail and directing the appellant, to surrender and later seek bail, therefore, cannot stand, and is hereby set aside……”

25.

Thus, the position of law is well settled: once anticipatory bail is granted, it ordinarily continues without fixed expiry. The filing of a charge-sheet, taking of cognizance, or issuance of summons does not terminate protection unless special reasons are recorded. The Constitution Bench in the case of Sushila Aggarwal (supra) held that duration is a matter of judicial discretion and cannot be confined by arbitrary timelines. In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, this Court similarly cautioned that anticipatory bail should not hinge on procedural milestones.

26.

Risk management can be taken care of by way of imposing conditions of cooperation, attendance, and non-tampering, not by imposing time limits. Where circumstances change, modification or cancellation may be sought under the BNSS, 2023, but expiry clauses inserted at inception are unsustainable.

27.

In such circumstances referred to above, the impugned order passed by the High Court is set aside.

28.

We order that in the event of arrest of the appellant in connection with the offence enumerated above, he shall be released on anticipatory bail subject to the terms and conditions that the Investigating Officer deem fit to impose.

29.

Once the appellant is released by the Investigating Officer, he shall thereafter appear before the Trial Court and furnish fresh bail bond.

30.

Before we close this matter, we would like to clarify something important. Take a case, wherein an accused has been released on bail, pending the investigation, and later upon completion of the investigation, chargesheet is filed with addition of new cognizable and non-bailable offences, then what would be the position?

31.

The aforesaid question was looked into and answered by this Court in Pradeep Ram v. State of Jharkhand, 2019 Cri LJ 3801, wherein this Court after discussing various decisions, more particularly, the decision in Prahlad Singh Bhati v. NCT Delhi, (2001) 4 SCC 280 held that with the addition of a new cognizable and non-bailable offence more particularly of a serious nature, the accused becomes disentitled to the liberty earlier granted to him in relation to the offences for which the FIR came to be registered.

32.

In such circumstances, the correct approach of the Court concerned should be to apply its mind afresh as to whether the accused is entitled for grant of bail in the changed circumstances.

33.

In Prahlad Singh Bhati (supra), the FIR initially was registered under Sections 306 and 498A of the IPC respectively. But, subsequently, the chargesheet showed that the accused had committed offence under Sections 302 of the IPC. This Court took the view that with the change of the nature of the offence, the accused could be said to have become disentitled to the liberty granted to him in relation to the offence for which the FIR was registered, more particularly, if the offence is altered for an aggravated crime.

34.

In such circumstances referred to above, we arrive at following conclusions in respect of a circumstance whereafter the grant of bail to an accused, further cognizable and non-bailable offences are added:—

(i)

The accused can surrender and apply for bail for newly added cognizable and non-bailable offences. In the event of refusal of bail, the accused can certainly be arrested.

(ii)

The investigating agency can seek order from the court under Sections 437(5) or 439(2) of Cr. P.C. respectively for arrest of the accused and his custody.

(iii)

The Court, in exercise of its power under Sections 437(5) or 439(2) of Cr. P.C. respectively, can direct for taking into custody the accused who has already been granted bail after cancellation of his bail. The Court in exercise of its power under Section 437(5) as well as Section 439(2) respectively can direct the person who has already been granted bail to be arrested and commit him to custody on addition of graver and non-cognizable offences which may not be necessary always with order of cancelling of earlier bail.

(iv)

In a case where an accused has already been granted bail, the investigating authority on addition of an offence or offences may not proceed to arrest the accused, but for arresting the accused on such addition of offence or offences it needs to obtain an order to arrest the accused from the Court which had granted the bail.”

“1.

Leave granted.

2.

In a case arising out of FIR No. 735 dated 8-11-1993, relating to the alleged dowry death of Smt Sunita — wife of Anil Kumar, the learned Additional Sessions Judge, Rohtak granted anticipatory bail to the parents and the brother of the husband of the deceased Smt Sunita and directed that they be released on bail on their furnishing bail bonds in the sum of Rs 10,000 each with one surety each of the like amount in the event of their arrest to the satisfaction of the Arresting Officer. No bail has however been granted to the husband — Anil Kumar. The State of Haryana filed a petition in the High Court of Punjab and Haryana seeking cancellation of the anticipatory bail, granted to the appellants by the Additional Sessions Judge, Rohtak on 12-11-1993. The learned Single Judge of the High Court by his order dated 8-9-1994, cancelled the bail observing:

“Dowry death is a serious matter and cannot be taken so lightly. No positive finding has been recorded by the Additional Sessions Judge in his order to the effect that the respondents and the deceased were living separately. No prima facie case is made out which could justify the grant of anticipatory bail. To my view of thinking, concession of anticipatory bail granted by the Additional Sessions Judge, was totally uncalled for. The order dated 12-11-1993 is, therefore, set aside and the respondents are directed to be taken into custody.”

The appellants are aggrieved of the cancellation of the anticipatory bail, granted to them. Hence this appeal.

3.

It appears to us that whereas the learned Additional Sessions Judge was not justified in observing in the last paragraph of his order while granting anticipatory bail “it appears that possibly these accused-appellants have been roped in falsely”, at that initial stage, when possibly the investigation was not even completed let alone, any evidence had been led at the trial, the High Court also fell in error in cancelling the anticipatory bail granted to the appellants for the reasons, which have been extracted by us above. The learned Additional Sessions Judge had noticed that even according to the statement in the FIR, the appellants were living separately from the deceased and her husband and that the factum of separate residence was also supported by the ration card. These considerations were relevant considerations for dealing with an application for grant of anticipatory bail.

4.

Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) 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 concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, 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. These principles, it appears, were lost sight of by the High Court when it decided to cancel the bail, already granted. The High Court it appears to us overlooked the distinction of the factors relevant for rejecting bail in a non-bailable case in the first instance and the cancellation of bail already granted.

5.

We are, therefore, satisfied that the cancellation of anticipatory bail granted to the appellants, for the reasons given by the High Court, was not justified. Nothing has been brought to our notice either from which any inference may possibly be drawn that the appellants have in any manner, whatsoever, abused the concession of bail during the intervening period.

6.

We, accordingly, allow this appeal, set aside the impugned order of the High Court and restore that of the learned Additional Sessions Judge, Rohtak dated 12-11-1993.”

ORDER

ORDER