IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 3RD FEBRUARY 2011 / 14TH MAGHA 1932 Crl.MC.No. 4870 of 2010() ------------------------- AGAINST THE ORDER DATED 04/12/2010 IN CRL.MP.4680/2010 IN SC.387/2009 of III ADDL.SESSIONS COURT (ADHOC-I), THODUPUZHA .................... PETITIONER(S)/ACCUSED NO.2: --------------- AJAS, AGED 26 YEARS, S/O.ABDUL KHADER THANATHUPARAMBAIL, KOOTICKAL, MUNDAKKAYAM,IDUKKI. BY ADV. SRI.SHAIJAN C.GEORGE SRI.SUNIL V.MOHAMMED SRI.JOHN VIPIN SMT.SAJITHA GEORGE SMT.S.REKHA KUMARI SRI.ABHISHEK KURIAN RESPONDENT(S)/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03/02/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.4870 of 2010 -------------------------------------- Dated this the 3rd day of February, 2011. ORDER This petition is filed by accused No.2 in S.C.No.387 of 2009 of the court of learned Additional Sessions Judge-III (Adhoc-I), Thodupuzha for offences punishable under Section 511 of Section 379 and Section 302 read with Section 34 of the Indian Penal Code (for short, “the IPC”). Petitioner was granted bail as per order passed by this Court subject to certain conditions and, as directed by this Court learned Judicial First Class Magistrate-II, Peerumade released petitioner on bail incorporating the conditions imposed by this Court. After submission of the final report trial proceeded and PWs 1 to 16 were examined for the prosecution. While so, the Station House Officer, Peruvanthanam Police Station submitted a report before the learned Additional Sessions Judge who was trying the case alleging that PW6 (who, learned counsel submits had refused to support the prosecution) who had already been examined on 06.08.2010 was assaulted by petitioner on 03.09.2010 at about 4.30 p.m. and regarding which Crime No.276 of 2010 was registered for offences punishable under Sections 294(b), 323, 324 and 506(i) of the IPC. The Station House Officer reported that continuance of petitioner on bail is a threat to the remaining witnesses. Learned Additional Sessions Judge heard counsel for petitioner and the Public Prosecutor, came to the conclusion that petitioner has violated the condition imposed by this Court while granting bail, Crl.MC.No.4870/2010 2 act of petitioner amounts to interference with trial of the case and is sufficient to cause threat to the witnesses for prosecution and passed Annexure-4, order cancelling the bail. Learned counsel submitted that learned Additional Sessions Judge has no power to cancel the bail since under Section 439(2) of the Code of Criminal Procedure (for short, “the Code”) the power to cancel bail is conferred on the 'Court of Session' and the High Court, but the court of Additional Sessions Judge is not a 'Court of Session' as defined in Section 9 of the Code. Reliance is placed on the decision of the Calcutta High Court in Superintendent and Remembrancer of Legal Affairs, W.B. v. Mansur Ali and another (1978 Cri.L.J. 1497) It is pointed out by learned counsel from the decisions of this Court in State of Kerala v. Anilkumar (2005 (2) KLJ 629) and Mahesh v. State of Kerala (2010 (4) KLT 921) that it is not every violation of a condition that would result in cancellation of bail under Section 439 (2) of the Code and that there must be deliberate, contumacious and unjustified infraction of the conditions to invoke the said provision. Learned Public Prosecutor submitted that in the light of the report submitted by Station House Officer and having regard to the circumstances no interference is required. 2. It is not disputed that at the time the Station House Officer submitted the report, the case was pending trial in the court of learned Additional Sessions Judge and going by the provisions of Section 9 of the Code the Crl.MC.No.4870/2010 3 Additional Sessions Judge is exercising the same power as that of the Sessions Judge while trying the case which was made over to him. I must also bear in mind that it is not as if a court of Additional Sessions Judge is being established but, it is a case of appointment of more Sessions Judges in Sessions Division. Sub-section (1) of Section 9 of the Code says that the State Government shall establish a Court of Session for every Sessions Division while Sub-section (2) says that every Court of Session shall be presided over by a Judge, to be appointed by the High Court (by notification) to exercise the powers of Sessions Judge. Sub-section (3) of Section 9 of the Code says that the High Court may also appoint Additional Sessions Judges and Assistant Sessions Judges (in the court of Session) to exercise jurisdiction in a Court of Session. In the light of the above, I have my own difference of opinion on decision rendered by the Calcutta High Court. But it is not necessary to go into that question in this proceeding since this petition can be decided de hors the said question. 3. Section 437(5) of the Code empowers the court which granted bail and released the accused to order that the bail is forfeited on violation of the conditions of the bail. Sub-section (2) of Section 439 of the Code invests that power with the Court of Session or the High Court. It is relevant to note that neither of the provisions referred to cancellation of bail but only to forfeiture of bail. That forfeiture can happen on a failure to comply or violation of any of the conditions of the bond executed by the accused. In the present case it is not Crl.MC.No.4870/2010 4 disputed that while this Court granted bail at the crime stage certain conditions were imposed on petitioner including that he shall not interfere with the investigation and attempt to influence or threaten the witnesses or cause any hindrance to the smooth conduct of the investigation or trial. Learned Additional Sessions Judge found that the said condition is violated. Normally in the course of trial if a prosecution witness is threatened or assaulted with a view to coerce him not to give evidence that is a threat to himself and to the remaining witnesses for the prosecution and may affect administration of justice. Question is whether such a situation arose on the facts of the present case. This Court in State of Kerala v. Anilkumar (supra) held that it is not any innocent violation of condition that would result in cancellation of bail under Section 439 (2) of the Code and that there must be deliberate, contumacious and unjustified infraction of the conditions. In the case on hand it is not disputed that PWs 1 to 16 were examined and so far as examination of PW6 is concerned, his examination was completed on 06.08.2010 and the alleged incident was on 03.09.2010. Learned counsel submitted that the witnesses who remained to be examined by the prosecution are only three official witnesses. I am not inclined to think that the alleged assault on PW6 almost a month after his giving evidence (not in favor of the prosecution as the learned counsel submitted) was with the intention to coerce the remaining witnesses (the official witnesses) to give evidence in support of petitioner. Such a view does not stand to reason. I am not inclined to think that the Investigating Officers will be pressurized on Crl.MC.No.4870/2010 5 account of the alleged assault on PW6 to give evidence in favour of the accused. In that view of the matter, based on the solitary incident that allegedly occurred almost a month after examination of PW6, I do not think that it was necessary to cancel the bail as if there is a forfeiture of the bail bond. In that view of the matter I am inclined to interfere. Resultantly, this petition is allowed and Annexure-IV, order cancelling bail granted to the petitioner is set aside. He shall be released forthwith if his continued detention is not required for any other purpose, on the bond he has already executed and subject to the same terms and conditions mentioned therein. Issue order for release of the petitioner to the Superintendent of Sub Jail, Muvattupuzha. THOMAS P.JOSEPH, Judge. cks