IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 Crl.Rev.Pet.No. 2765 of 2009() ------------------------------ CMP.2644/2009 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOLLAM CRIM NO.105 OF 2009 OF KUNDARA POLICESTATION. .................... REVN. PETITIONER(S)/ACCUSED NOS.1,2,4,5,8,9 --------------------- 1. VIJAYAN @ THANKAN,S/O.PATHROSE, RESIDING AT EASWARANAMA VEEDU, MULAVANA VILLAGE, PERIYAM CHERIYIL, PADAPPAKKARA. 2. BOSE, S/O.YESUDASAN, RESIDING AT STANCY BHAVANAM, MULAVANA VILLAGEM PERIYAM CHERIYIL, PADAPPAKKARA. 3. SAJAN, MUNAMBATH THODIYIL, MULAVANA VILLAGE, PERIYAM CHERIYIL, PADAPPAKKARA. 4. ANILKUMAR, SON OF PAULY, RESIDING AT LAILA MANDIRAM, MULAVANA VILLAGE, PERIYAM CHERIYIL, PADAPPAKKARA. 5. SHINTO, S/O.YESUDASAN, RESIDING AT STANCY BHAVANAM, MULAVANA VILLAGE, PERIYAM CHERIYIL, PADAPPAKKARA. 6. GEORGE, S/O.YESUDASAN, RESIDING AT STANCY BHAVANAM, MULAVANA VILLAGE, PERIYAM CHERIYIL, PADAPPAKKARA. BY ADV. SRI.V.M.SYAM KUMAR RESPONDENT(S)/RESPONDENT: --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.2765 of 2009 -------------------------------------- Dated this the 28th day of August, 2009. ORDER Heard counsel for petitioners and Public Prosecutor. 2. This revision is in challenge of order dated 6.8.2009 on C.M.P.No.2644 of 2009 of the court of learned Judicial First Class Magistrate-I, Kollam in Crime No.105 of 2009 of Kundara Police station. Police filed charge sheet against petitioners for offences punishable under Sections 143, 147, 148 323, 324, 326, 427 and 452 read with Section 149 of the Indian Penal Code (for short, “the Code”). Petitioners were granted bail by the learned magistrate. Thereafter defacto complainant filed C.M.P.No.2644 of 2009 stating that offence punishable under Section 307 of the Code is also involved. Learned magistrate directed the Investigation Officer to look into that matter also. Thereafter Investigation Officer submitted report before the court below stating that along with the Sections of offences already stated in the first information report, offences punishable under Sections 120B and 308 of the Code are also incorporated. Based on that report learned magistrate vide the impugned order cancelled the bail already granted to the petitioners observing that offence punishable under Section 308 of the Code is exclusively triable by Court of Sessions and as the offence alleged is of a serious nature. Non-bailable warrant Crl.R.P.No.2765/2009 2 was also issued to the petitioner. That order is under challenge in this revision. Learned counsel contends that learned magistrate had no jurisdiction to cancel the bail or order arrest of petitioners for the purpose of investigation. 3. It is not because there was any violation of the conditions of bail or that the liberty granted to the petitioners were misused, that bail was cancelled. Cancellation of the bail is the power of the Court of Sessions or the High Court under Section 438(2) of the Code of Criminal Procedure. The procedure to be followed when subsequent to the grant of bail graver offences are reported has been considered by this Court in Thomas v. State of Kerala (2008 (3) KLT 248). It was held that a grave offence is incorporated after enlargement of accused on bail at a time when the offence was a minor offence is no ground to cancel the bail already granted unless there is a case of violation of the bail conditions or, the liberty granted to the accused concerned has been abused by him. This Court stated that in such situation the proper course for the Investigation Officer was not to seek for cancellation of the bail but to move the court concerned to direct the accused to apply for bail in respect of the graver offences added. If that be so, the proper course was to direct petitioners to move for bail again after incorporation of offences punishable under Sections 120B and 308 of the Code. Therefore, cancellation of the bail as per the impugned order cannot be sustained and is liable to be set aside. Petitioners have to move the court concerned for bail or anticipatory bail as the case may be and as the petitioners are otherwise entitled under law within a reasonable time. Crl.R.P.No.2765/2009 3 Resultantly, this revision petition is allowed and the impugned order cancelling the bail earlier granted and issuing non-bailable warrant to petitioners is set aside. Petitioners are directed to move the appropriate court for bail or anticipatory bail as the law permits them, within a period of three weeks from this day. If during the said period of three weeks petitioners are arrested by the police they shall be released during the said period of three weeks on their executing bond for Rs.10,000/- (Rupees ten thousand only) each with two sureties each for the like sum each to the satisfaction of the arresting officer and subject to the following conditions: i. Petitioners shall report to the officer investigating the case as and when required for interrogation during the said period of three weeks. ii. Petitioners shall not except with the permission of the learned magistrate go beyond the limits of Kollam District during the said period of three weeks. THOMAS P.JOSEPH, Judge. cks