While ruling on a most significant legal point pertaining to the misuse of liberty by accused when granted bail, the Kerala High Court at Ernakulam in a remarkable, robust, rational and recent judgment titled Navas vs State of Kerala in CRL. MC No. 3730 of 2023 and cited in 2023 LiveLaw (Ker) 255 that was pronounced just recently on June 1, 2023 has fully, firmly and finally reiterated that the misuse of the liberty granted to a person released on bail is sufficient ground to cancel the bail. It must be mentioned here that the Court held as above while considering the challenge to an order of the Special Judge that cancelled the statutory bail that was granted to a man booked under the NDPS Act for possession of 40.5 kgs of Ganja, who was subsequently found in possession of 14.250 kgs of Ganja and 850 gms of Hashish oil and armed weapons with three others. Very rightly so!
At the very outset, this notable judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Raja Vijayaraghavan V of Kerala High Court sets the ball rolling by first and foremost putting forth in para 1 that, “This petition is filed invoking the powers of this Court under Section 482 of the Code of Criminal Procedure, 1973 (“the Code” for the sake of brevity), seeking to quash Annexure-6 order by which the bail granted to the petitioner in Crime No.11 of 2021 of Excise Range Office, Tirur was cancelled on account of his involvement in a subsequent crime.”
To put things in perspective, the Bench while stating facts briefly envisages in para 2 that, “Short facts are as under:
The petitioner was arrayed as the 1st accused in Crime No. 11 of 2021 of the Tirur Excise Range Office registered by the Excise Inspector under Section 20(b)(ii)(C) and Section 29 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The facts which led to the registration of the Crime is that on 02.06.2021, at about 9.55 pm., the petitioner was found having concealed 40.5kgs of Ganja in the building bearing No. XV/332 H of Thrippangode Panchayat. As the petitioner was involved in another crime, his arrest was recorded on 18.11.2021. After having undergone custody till 17.05.2022, the petitioner approached this Court, and by Order dated 24.05.2022 in B.A.No.2289 of 2022, he was granted statutory bail. While granting bail, this Court, in addition to other conditions, ordered that the involvement in any other crime while on bail will entitle the investigating officer to file an application before the jurisdictional court for cancellation of bail.”
Further, the Bench discloses in para 3 that, “It appears that thereafter, on 13.10.2022, at about 11 pm, based on secret information, the Police Sub Inspector, Tirur Police Station, reached a lodge situated at Chennara NOC padi, and it was found that the petitioner, along with three others had kept in their possession 14.250 kgs of Ganja and 850 gms of Hashish oil in the lodge room as well as in the car bearing Reg. No.KL-78-6539. It is also alleged that the petitioner, as well as the other accused, were armed with weapons. Based on the detection carried out as above, Crime No. 1024 of 2022 was registered for offence under Section 20(b)(ii)B r/w Section 29 of the NDPS Act and under Section 27 of the Arms Act, 1959.”
As it turned out, the Bench then observes in para 4 that, “As the investigating officer found that the condition imposed by this Court while granting statutory bail was violated by involving in another crime registered under the NDPS Act, that too, within a short span of under five months, he approached the jurisdictional court and filed an application for cancellation of bail.”
As we see, the Bench then lays bare in para 5 stating that, “The learned Special Judge, after carefully evaluating the facts and circumstances and the settled precedents, came to the conclusion that there are prima facie materials to show that the petitioner had misused the liberty granted and, by a considered order, came to the conclusion that the bail granted to the petitioner in Crime No.11 of 2021 of Excise Range Office, Tirur was liable to be cancelled. The above order is under challenge.”
As we observe, the Bench then stipulates in para 10 that, “While granting statutory bail in Crime No. 11/2021 of the Excise Range Office, Tirur, this Court imposed various conditions. Condition No. 4 reads as under:
“(4) The petitioner shall not involve in any other crime while on bail.””
Be it noted, the Bench notes in para 16 that, “In the light of the law laid down by the Apex Court as above, the courts are to bear in mind that there is a distinction between the concept of setting aside an unjustified, illegal, or perverse order and cancellation of an order of bail on the ground that the accused has misconducted himself or due to the happening of certain supervening circumstances warranting such cancellation. Insofar as the cancellation of bail by the superior court on the ground that the order passed by the court granting bail is unjustified, illegal, or perverse, the principles laid down by the Apex Court in Dolat Ram and Ors. v. State of Haryana (1995) 1 SCC 349 shall govern the same. It was observed therein that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted have to be considered and dealt with on a different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding, is yet another reason justifying the cancellation of bail. However, bail, once granted, should not be canceled 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. Insofar as the cases in which the application for cancellation of bail is filed for misusing liberty, the fact to be taken note of by the court is whether the conditions have been violated and that the supervening circumstances warrant the cancellation of bail (See CBI v. Subramani Gopalakrishnan, [(2011) 5 SCC 296]).”
Do note, the Bench while citing the relevant case law notes in para 17 that, “In P. v Madhya Pradesh (supra), the Hon’ble Apex Court has adverted to all the past precedents and has encapsulated the circumstances under which bail granted to the accused under S.439 (1) of the Cr. P. C. can be revoked. They are
a) If he misuses his liberty by indulging in similar/other criminal activity;
b) If he interferes with the course of the investigation;
c) If he attempts to tamper with the evidence;
d) If he attempts to influence/threaten the witnesses;
e) If he evades or attempts to evade court proceedings;
f) If he indulges in activities which would hamper smooth investigation;
g) If he is likely to flee from the country;
h) If he attempts to make himself scarce by going underground and/or becoming unavailable to the investigating agency;
i) If he attempts to place himself beyond the reach of his surety.
j) If any facts may emerge after the grant of bail which are considered unconducive to a fair trial.”
Needless to say, the Bench states in para 18 that, “The Apex Court has emphatically stated that misuse of the liberty granted is sufficient enough ground to cancel the bail once granted.”
Finally and far most significantly, the Bench then concludes by holding in para 19 that, “As the petitioner has misused the liberty granted to him, the learned Special Judge was well justified in canceling the bail. In that view of the matter, the impugned order does not warrant any interference. However, it is made clear that the above order shall not stand in the way of the petitioner surrendering before the jurisdictional court and seeking regular bail. If any such application is filed, the same shall be considered in the light of the principles governing the grant of bail under the NDPS Act and also as reiterated in Deepak Yadav v. State of U.P., (2022) 8 SCC 559 which lays down that the relevant conditions for grant of bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behavior, means, position and standing of the accused;
(vi) likelihood of the offense being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail. Appropriate orders shall be passed on its merits, untrammeled by any of the observations above. Crl.M.C. is dismissed.”
In sum, we thus see that the Kerala High Court has made it quite indubitably clear that misuse of liberty by accused is sufficient ground for bail cancellation. So if the accused misuses the liberty then he should be ready for cancellation of bail as we see being held in this very leading case law. No denying it!
