IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 Crl.MC.No. 1623 of 2011() ------------------------- CMP.480/2011 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... (CRIME NO.1222/2010 OF VADAKARA POLICE STATION) ....... PETITIONER(S): ACCUSED: ----------------------------------------- 1. ANEESH,S/O.BALAKRISHNAN,AGED 21 YEARS, CHALLAYIL HOUSE,PAKKAYIL.P.O,VADAKARA BEACH, KOZHIKODE DISTRICT. 2. SURESH,S/O.KUNJIRAMAN,AGED 39 YEARS, NADOL HOUSE,PAKKAYIL.P.O,VADAKARA BEACH, KOZHIKODE DISTRICT. 3. SHARUNDAS,S/O.HARIDASAN,AGED 20 YEARS, CHALLAYIL HOUSE,PAKKAYIL.P.O,VADAKARA BEACH, KOZHIKODE DISTRICT. BY ADVS. SRI.P.R.SREEJITH, SRI.M.PROMODH KUMAR. RESPONDENT(S): ----------------------------- STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.1623 of 2011 -------------------------------------- Dated this the 3rd day of June, 2011. ORDER Public Prosecutor takes notice for respondent. 2. Petitioners are accused in Crime No.1222 of 2010 of Vadakara Police Station for offences punishable under Section 324 and 308 read with Section 34 of the Indian Penal Code. Learned Sessions Judge, Kozhikode granted them bail as per Annexure-1, order dated 09.12.2010 in Crl.M.C.No.1602 of 2010 subject to conditions including that petitioners shall report to the Investigating Officer on all days till filing of final report, that they shall not enter the Vadakara Taluk without permission of the court except for compliance with the condition regarding appearance before the Investigating Officer and that petitioners shall not involve in any criminal case. While so, the Sub Inspector, Vadakara filed C.M.P.No.480 of 2011 before learned Judicial First Class Magistrate, Vadakara requesting to cancel the bail alleging that petitioners got involved in Crime Nos.1344 and 1345 of 2010 for various offences and that they failed to report to the Investigating Officer as directed by the learned Sessions Judge. Learned Magistrate after hearing both sides cancelled the bail as per Annexure-3, order dated 27.01.2011. Learned counsel submits that so far petitioners have not been taken to custody pursuant to Annexure-3, order. It is contended that learned Magistrate had no jurisdiction to Crl.MC No.1623/2011 2 cancel the bail granted by learned Sessions Judge even on the allegations made by the Sub Inspector in C.M.P.No.480 of 2011. It is also contended that learned Sessions Judge was not correct in imposing a condition that petitioners shall not involve in any criminal case as that gave ample opportunity to the Police to register even a petty case against petitioners falsely and request the court to cancel the bail. I have heard learned Public Prosecutor also. 3. It is not necessary for me to go into the latter part of the argument of learned counsel regarding validity of condition imposed by learned Sessions Judge that petitioners shall not involved in any criminal case. For, now I am concerned with the question whether learned Magistrate was judicially correct in canceling the bail. It is indisputed that petitioners were granted bail by the learned Sessions Judge as per order dated 09.12.2010. Section 437(5) of the Code of Criminal Procedure (for short, “the Code”)states that the court which has released a person on bail under Sub-section (1) or Sub-section (2) of Section 437 of the Code may if it considers it necessary so to do, direct that such person be arrested and commit him to custody. It is true that Sub-section (5) of Section 437 of the Code does not contain the expression ‘cancel the bail’ but, it says that the court may direct the person to be arrested and committed to custody. Though Sub-section (5) of Section 437 of the Code empowers any court which has 'released' a person on bail, if it considers it necessary so to do, direct that 'such person be arrested and commit to custody'. The 'release' Crl.MC No.1623/2011 3 referred therein is one coming under Sub-section (1) of (2) of Section 437 of the Code, ie. grant of bail in a non-bailable offence. Even otherwise when as per the order of a superior court the Magistrate releases the offender, it is only an administrative act of the Magistrate following the judicial order of the superior court. It is therefore clear that learned Magistrate could have cancelled the bail under Section 437(5) of the Code only if the bail was granted by him under Sub- section (1) of (2) of that Section. This Court in Latheef v. State of Kerala (2011 (2) KLT 231), in paragraph 19 held: “...........In the light of the decisions cited supra there is no doubt in our mind that the Magistrate who granted bail u/S.437(1) and (2) Cr.P.C. has the right to cancel the bail u/S.437(5) of the Cr.P.C. ....” Apart from Section 437(5) of the Code I could not find any provision which enables the Magistrate to cancel the bail and at any rate, granted by a superior court. As such the learned Magistrate was at error in canceling the bail granted by the learned Sessions Judge. In view of the above, it is not necessary for me to go into the factual aspects pleaded by the Sub Inspector that the bail is liable to be cancelled. I make it clear that if so advised, it is open to the Officer concerned to move the learned Sessions Judge, Kozhikode for Crl.MC No.1623/2011 4 cancellation of bail if circumstances warranted such an action. Resultantly this Criminal Miscellaneous Case is allowed. Annexure-3, order dated 27.01.2011 on C.M.P.No.480 of 2011 of the court of learned Judicial First Class Magistrate, Vadakara (in Crime No.1222 of 2010 of Vadakara Police Station) is set aside and that petition will stand dismissed without prejudice to the right of the Officer concerned to move as observed above. THOMAS P.JOSEPH, Judge. cks