IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH JUNE 2011 / 24TH JYAISHTA 1933 Crl.MC.No. 4615 of 2010() ------------------------------------ CR. NO.1159/2008 OF KOLLAM EAST POLICE STATION. .................... PETITIONER(S): ----------------------- N. JAYALAKSHMI, AGED 50 YEARS., W/O.MOHAN, SMITHA NIVAS, SARAYU NAGAR, ASRAMAM P.O., KOLLAM-691 002. BY ADV. SRI.T.R.ASWAS RESPONDENT(S): -------------------------- 1. SIBY SUKUMARAN, SURABHI, ULIYAKOVIL, ASRAMAM, KOLLAM, PIN-691 002. 2. SUB INSPECTOR OF POLICE, KOLLAM EAST POLICE STATION, KOLLAM, PIN-691 002. 3. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031. * ADDL. R4 IMPLEADED ADDL. R4: SUB INSPECTOR OF POLICE KOLLAM WEST POLICE STATION. *ADDITIONAL R4 IMPLEADED AS PER THE ORDER DATED 02/06/2011 IN CRL.MA.NO.2418/2011 IN CRL.MC.4615/2010. R2 TO ADDL.R4 BY PUBLIC PROSECUTOR MR.JAYASURYA. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14/06/2011, ALONG WITH CRMC NO.4629 OF 2010 AND CRMC NO.4630 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 4615 of 2010 APPENDIX PETITIONER'S ANNEXURES: ANNEXURE A: COPY OF THE ORDER DATED 14/11/2008 IN B.A. NO.6171/2008. ANNEXURE B: COPY OF THE LETTER DATED 08/04/2010 SENT TO THE MARRIAGE OFFICER, KOLLAM CORPORATION. ANNEXURE C: COPY OF THE DETAILED COMPLAINT DATED 10/10/2007 TO THE ADDL. DIRECTOR GENERAL OF POLICE, SOUTH ZONE, TRIVANDRUM BY THE PETITIONER. ANNEXURE D: COPY OF THE COMMON ORDER DATED 03/04/2007 IN B.A NOS.2002/2007 AND 2013/2007 OF THIS HONOURABLE COURT. RESPONDENTS ANNEXURES: NIL //TRUE COPY// P.A. TO JUDGE rs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.Nos.4615, 4629 and 4630 of 2010 --------------------------------------- Dated this 14th day of June, 2011 ORDER In spite of service of notice on the first respondent in all these proceedings sufficiently early, there is no response. 2. The prayer made by de facto complainant in these proceedings is to cancell anticipatory bail granted to the first respondent under Sec.438 of the Code of Criminal Procedure (for short, "the Code”) by this Court in various crimes registered by the Kollam East Police. According to the petitioner, this Court granted anticipatory bail as aforesaid in the respective cases as per Annexure-A, orders with stringent conditions which included that first respondent shall not intimidate or influence any witness, tamper with evidence or commit any offence while on bail. It is contended by the petitioner that even after Annexure-A, orders granting anticipatory bail to the first respondent, he is indulging in various crimes including those against the petitioner, a house wife aged about 50years and a distant relative of the first respondent. Learned counsel submitted that the atrocity being indulged in by the first respondent is such that he did not even spare the unmarried daughter of petitioner in that he even dared Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 2 :- to forge a marriage agreement as if it is executed between him and the daughter of petitioner while in fact the first respondent is already married to one Suma Babu. Petitioner in the circumstance requests cancellation of anticipatory bail granted to the first respondent. 3. In the light of the allegations made in this criminal miscellaneous petitions the officer investigating the cases concerned was directed to submit a report on or before June 13, 2011. Though, no such report is filed, learned Public Prosecutor after getting instruction from the officer concerned has given details of the cases in which the first respondent is involved even after Annexure-A, orders passed by this Court granting anticipatory bail. The details submitted by the learned Public Prosecutor are sufficient for the disposal of these cases. 4. Crl.M.C.No.4615 of 2010 relates to the grant of anticipatory bail vide Annexure-A, order dated November 14, 2008 to the first respondent in Crime No.1159 of 2008 of Kollam East Police Station involving offences punishable under Secs.420, 380 and 120B r/w Sec.34 of the Indian Penal Code (for short, "the IPC”). Crl.M.C.No.4629 of 2010 relates to Annexure-A, order dated April 3, 2007 granting anticipatory bail to the first respondent in Crime No.105 of 2007 of the same Police Station Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 3 :- for offences punishable under Secs.470, 474 and 120B r/w Sec.149 of the IPC. Crl.M.C.No.4630 of 2010 relates to Annexure-A, order dated April 3, 2007 granting anticipatory bail to the first respondent in Crime No.106 of 2007 of the same Police Station for offences punishable under Secs.406, 420, 468, 470, 474 and 120B r/w Sec.149 of the IPC. Now, claim of petitioner is that in violation of the conditions imposed on the first respondent while granting anticipatory bail as above stated, first respondent is freely indulging criminal activities even involving petitioner and that amounts to violation of the conditions. In the circumstances, it is prayed that anticipatory bail granted to the first respondent be cancelled. Learned counsel has invited my attention to the decisions in Dolat Ram and Ors. Vs. State of Haryana ((1995)1 SCC 349), Omar Usman Chamadia Vs. Abdul and Anr. ((2004)13 SCC 234), Panchanan Mishra Vs. Digambar Mishra and Ors. ((2005)3 SCC 143), Rasiklal Vs. Kishore S/o.Khanchand Wadhwani ((2009)4 SCC 446), Hazarilal Das Vs. State of West Bengal and Anr. ((2009)10 SCC 652), State through C.B.I Vs. Amarmani Tripathi with State of U.P through C.B.I Vs. Madhumani Tripathi (2005 Crl.L.J 4149) and unreported decision of the Apex Court in Prakash Kadam & Ors. Vs. Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 4 :- Ramprasad Vishwananth Gupta and Anr. (delivered on May 13, 2011). It is submitted by learned counsel that first respondent and the officer investigating the cases are acting hand in glove as is evident from the fact that on the complaint given by the petitioner about the high handed acts of the first respondent even after obtaining anticipatory bail the investigating officer has not taken any action. It is also stated that the very fact that notwithstanding non compliance of conditions in Annexure-A, orders the investigating officer has not moved this Court for cancellation of bail. Learned Public Prosecutor while denying the said allegation submitted that the first respondent is involved in altogether 15 cases registered by the Kollam East Police, some of which are registered after Annexure-A, orders are passed by this Court. 5. I shall refer to the conditions imposed by this Court while granting anticipatory bail to the first respondent. In Crl.M.C.Nos.4629 and 4630 of 2010 Annexure-A, order imposed the following conditions: “(c) Petitioners shall not influence or intimidate the prosecution witnesses nor shall they attempt to tamper with the evidence for the prosecution. Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 5 :- (d) Petitioners shall not commit any offence while on bail (petitioners includes the first respondent as well).” In Crl.M.C.No.4615 of 2010 Annexure-A, order granting anticipatory bail imposed the following conditions: “Petitioner shall not intimidate or influence any witness or tamper with evidence or commit any offence while on bail and in case of breach of this condition bail is liable to be cancelled”. 6. It is submitted by learned counsel and in fairness learned Public Prosecutor also agreed that the following cases are registered against first respondent after Annexure-A, orders referred to above, (i) Crime No.449 of 2007 of Kollam East Police Station (registered on 24.04.2007) for offences punishable under Secs.447, 427 and 294B of the IPC. The allegation is that first respondent trespassed into the compound of petitioner, committed mischief and used obscene words at her. The police after investigation submitted final report before learned Chief Judicial Magistrate, Kollam who has taken cognizance of the said offences and filed C.C.No.1179 of 2007 against the first respondent. Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 6 :- (ii) Crime No.1179 of 2009 of the same Police Station (registered on 28.09.2009) for offences punishable under Secs.447 and 427 of the IPC. The allegation is that on 04.09.2009 first respondent trespassed into the house of petitioner and committed mischief by pouring acid in her car. It is submitted by learned Public Prosecutor that final report has been submitted in that case before the jurisdictional Magistrate. (iii) Crime No.77 of 2010 of the same Police Station (registered on 13.01.2010) for offences punishable under Secs.468, 471, 506 (i) r/w Sec.34 of the IPC. The allegation is that first respondent forged a marriage agreement as if it is executed between himself and the unmarried daughter of petitioner and its copies were circulated in the locality. Later, first respondent filed Annexure- B, complaint dated 08.04.2010 before the Marriage Registrar claiming that he has entered into a marriage agreement with the daughter of petitioner and requested the Marriage Registrar not to register the marriage of daughter of petitioner with anybody else (on account of the alleged agreement for marriage with him). Learned Public Prosecutor submitted that the said case is pending investigation. Learned Public Prosecutor submitted that in Crime No.77 of 2010 above mentioned, this Court granted regular bail to the first respondent with a condition that he shall Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 7 :- report to the officer investigating the case but, that condition has not been complied. It is also submitted by learned Public Prosecutor that since the bail condition was not complied by the first respondent, investigating officer has submitted appropriate report before learned Chief Judicial Magistrate, Kollam. Learned counsel for petitioner submits that the first respondent is already married to one Suma Babu on 18.05.2008 when he claimed that by the alleged impugned agreement, first respondent has agreed to marry the daughter of the petitioner. (iv) Crime No.432 of 2011 (registered on 17.04.2011) with the same Police Station for offence punishable under Sec.342 of the IPC on a complaint preferred by the petitioner. There, the allegation is that first respondent locked gate of compound of petitioner and made it impossible for her to move out. It is submitted by learned Public Prosecutor that final report has been submitted in Crime No.432 of 2011 for the offence above stated. 7. It is submitted by learned counsel for petitioner that apart from the above cases (registered after grant of anticipatory bail by Annexure-A, orders) first respondent on 14.09.2010 assaulted one Gireesan who is a witness. Though, a complaint was preferred in that regard to the Circle Inspector, Kollam no action was taken. Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 8 :- 8. True, this Court while granting anticipatory bail as per Annexure-A, orders imposed the condition that petitioner shall not get involved in any offence during the period the order of anticipatory bail stood in force. Registration of cases and submission of final reports are, in my view prima facie evidence of commission of the offences. It is hard to expect petitioner to wait until the culmination of trial of those cases its appeals, revisions and other proceeding if any and then request for cancellation of bail on the ground that first respondent is involved in other crimes in violation of the condition imposed in Annexure-A, orders. Reason persuade me to think that registration of the cases and submission of final reports are to be taken as prima facie evidence of commission of the said crimes by the first respondent. 9. No doubt, consideration for cancellation of bail is entirely different from consideration for grant of bail. There must be strong and sufficient reason for cancellation of bail granted by the Court after applying its mind and having regard to the facts and circumstances of each case. In Rasiklal Vs. Kishore S/o.Khanchand Wadhwani (supra) the Supreme Court held that bail granted to an accused with reference to bailable offence can be cancelled only if the accused misuses his Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 9 :- liberty by indulging in similar criminal activity, interferes with the course of investigation, attempts to tamper with evidence of witnesses, threatens witnesses or indulges in similar activities which would hamper smooth investigation, attempts to flee to another country, attempts to make himself scarce by going underground or becoming unavailable to the investigating agency, attempts to place himself beyond the reach of his surety etc. The Supreme Court observed that the above grounds are not exhaustive but, illustrative. In Hazarilal Das Vs. State of West Bengal and Anr. (supra) also, the same yardsticks is adopted. Courts are alerted that once bail is granted the same shall 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. In Dolat Ram and Ors. Vs. State of Haryana (supra) also, the Supreme Court has taken the same view. It is further held that very cogent and overwhelming circumstances are necessary for an order directing cancellation of the bail already granted. In Omar Usman Chamadia Vs. Abdul and Anr. (supra) several cases involving serious offences were pending against the accused who was granted bail. Some of them were committed while the Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 10 :- accused was bail in other cases. It was held that it is a fit case for cancellation of bail. The Supreme Court took into account possibility of the accused misusing the bail granted, interfering with the investigation of the case, threatening witnesses and even going to the extent of causing physical harm to the de facto complainant and others. State through C.B.I Vs. Amarmani Tripathi with State of U.P through C.B.I Vs. Madhumani Tripathi (supra) also related to the cancellation of bail. There, evidence disclosed repeated attempts by the accused to interfere and side track investigation and threaten witnesses. That was found to be sufficient for cancellation of bail. In Panchanan Mishra Vs. Digambar Mishra and Ors. (supra) the observation in State (Delhi Administration Vs. Sanjay Gandhi (1978)2 SCC 411) that, “Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail” was quoted with approval. 10. In the present cases, request for cancellation of bail comes not from the investigating officer but from the de facto Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 11 :- complainant. Assuming that petitioner/de facto complainant cannot as of right claim cancellation of bail it is within her right to bring to the notice of the Court circumstances which warrant cancellation of bail already granted. Learned counsel has invited my attention to the unreported decision of the Apex Court delivered on May 13, 2011 in Prakash Kadam's case. It is pointed out that in that case, request for cancellation of bail came from the de facto complainant. In paragraph 18, it is observed that there is no absolute rule that once bail is granted to the accused then it can only be cancelled if there is likelihood of misuse of the bail. That factor, though no doubt important, is not the only factor. There are several other factors also which may be seen while deciding to cancel the bail. 11. I referred to the factual situation emerging in the present cases. I also referred to the various cases which were admittedly registered against first respondent either in investigation, or already charge sheeted by the same police after the grant of anticipatory bail as per Annexure-A, orders. It is seen that in all these cases petitioner is the de facto complainant and the allegation against first respondent is commission of offence either against petitioner or involving her unmarried daughter. Registration of these cases and submission of final Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 12 :- report, I stated could be taken as prima facie evidence of commission of the said offence getting involved in the said cases after Annexure-A, orders amounted to a violation of the condition that first respondent shall not during the period of bail get involved in other criminal cases. Along with that, I also take into account statement made by the learned Public Prosecutor that first respondent is involved in a total of 15 cases including those cases registered after the grant of anticipatory bail by Annexure- A, orders. In these circumstances I am persuaded to think that a strong case has been made out by the petitioner for cancellation of anticipatory bail granted to the first respondent. Having regard to the circumstances placed before me I am satisfied that first respondent has misused the anticipatory bail granted to him as per Annexure-A, orders by getting involved in serious offences and intimidating petitioner and her daughter and that if Annexure-A, orders are allowed to stand possibility of first respondent again indulging in such acts cannot be ruled out. In such circumstances justice required that anticipatory bail granted to the first respondent as per Annexure-A, orders are cancelled. Resultantly this criminal miscellaneous cases are allowed. Anticipatory bail granted to the first respondent as per Annexure- Crl.M.C.Nos.4615, 4629 and 4630 of 2010 -: 13 :- A, orders in Crime Nos.105 of 2007, 106 of 2007 and 1159 of 2008 of Kollam East Police Station are cancelled. Learned Public Prosecutor shall deliver a copy of this order to the officer who investigated the cases in which Annexure-A orders were passed. Registry shall sent a copy of this order to the learned Chief Judicial Magistrate, Kollam. (THOMAS P JOSEPH, JUDGE) Sbna/-