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Judgment
Petitioner is the de facto complainant in Crime No.261 of 2020 of Kollam East Police Station, registered against the 2nd respondent for the offences
punishable under Sections 354 and 294(b) of IPC. By Annexure A1 order, pre-arrest bail was granted to the 2nd respondent subject to certain
conditions. By the second condition in Annexure A2, the accused is prohibited from contacting the victim in any manner and circulating any pictures of
the victim or making any statement concerning her in social, print or visual media, except before the law enforcement agencies. It was made clear
that, in case of violation of any of the conditions, the jurisdictional court will be empowered to consider the application for cancellation, if any, and pass
appropriate orders.
Later, the petitioner sought cancellation of the bail granted to the 2nd respondent, on the allegation that a reply notice sent by the accused,
containing derogatory remarks against the petitioner was posted in a Whatsapp group, even before the notice was received by the counsel to whom it
was addressed. It was contended that by posting the reply notice, the accused had violated condition No.2. This accusation was stoutly denied by the
accused.
The court below found that the source from which the reply notice containing derogatory comments originated was not traced by the Police and the
junior counsel, who claimed that she had seen the reply notice in one of her Whatsapp Groups, was not able to provide the requisite details. The
learned Magistrate therefore found the available records to be inadequate to find the accused to have posted the reply notice in social media. Relying
on the decision of the Apex Court in X v. State of Telangana and Others [2018 (7) SCALE 494,] the learned Magistrate held that in the absence of
cogent and overwhelming circumstances, bail already granted cannot be cancelled.
Heard Sri.R.Sunilkumar, learned counsel for the petitioner and Sri.Ramesh Chand, learned Public Prosecutor.
Learned counsel for the petitioner assailed the finding in Annexure A7 order that, the available materials were insufficient to cancel the bail, as
factually incorrect. According to the learned counsel, if proper effort had been taken by the Police, they could have proved the complicity of the
accused in posting the reply notice.
The legal position on considerations at the time of granting bail and while cancelling bail being entirely different, is well settled. The power to cancel
bail cannot, and shall not, be exercised in the absence of clear and cogent evidence regarding violation of the bail conditions. As far as the instant case
is concerned, other than the allegations raised by the petitioner, there is no such evidence. The learned Magistrate was hence justified in rejecting the
petition for cancellation of bail.
In the result, the Crl.M.C is dismissed.