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CASE NO.: Appeal (crl.)  1476 of 2005

PETITIONER: P.K. Shaji @ Thammanam Shaji                             

RESPONDENT: State of Kerala                                                  

DATE OF JUDGMENT: 27/10/2005

BENCH: K.G. Balakrishnan & B.N. Srikrishna

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl.) No. 1593 of 2003) K.G. BALAKRISHNAN, J.

       Leave granted.         The appellant challenges the order passed by a learned Single  Judge of the High Court of Kerala.  The appellant was involved in a  case registered by the Thrikkakara Police Station for the offences  under Section 120B and 307 IPC.  He  was granted bail by the  Sessions Court subject to certain conditions, one of which was that he  should execute a bond for Rs. 50,000/- with  two solvent sureties.  He  was also directed to make himself available for interrogation before  the Investigating Officer on all Mondays and Fridays between 10 a.m.  to 12.00 noon and was further directed that except for this purpose he  shall not enter the sessions division of Ernakulam until further orders  without prior permission of the learned Magistrate.  Lastly, the  Sessions Court directed that the Investigating Officer shall  scrupulously ensure that the appellant complied with all the conditions  imposed therein and shall report to the Magistrate in case of any  breach of conditions and the Magistrate shall take appropriate action  as if the conditions have been imposed by the Magistrate himself.

       Subsequent to the passing of the bail order, the appellant herein  executed bail bonds before the Magistrate and  was released on bail.   The Investigating Officer filed a report before the learned Magistrate  alleging that the appellant herein did not comply with the conditions as  he had failed to report before the Investigating Officer on all Mondays  and Fridays.  Pursuant to this report, learned Magistrate issued a  notice and the learned Counsel entered appearance and submitted that  the appellant apprehended assault at the hands of the police and,  therefore, he did not report before the Investigating Officer.  The  learned Magistrate was not satisfied with the explanation given by the  learned Counsel for the appellant and he cancelled the bail granted to  the appellant.  Aggrieved by the same, the appellant preferred a  revision before the High Court and the same was dismissed by the  impugned Order.

       It is contended by the appellant’s learned Counsel that in cases  where bail is granted by the court in bailable offences under Section  436 of the Cr. P.C., the very same court is given power to cancel the  bail if the conditions of the bail bond, as regards the time and place of  attendance, are not complied with; so also when bail is granted by a  court other than the High Court or Sessions Court for non-bailable  offences under Section 437 Cr.P.C.  Under sub-Section 5 of Section  437 Cr.P.C., the court is given power to cancel the bail and direct that  the person released on bail be arrested and committed to custody.  

       In the instant case, the bail was granted by the Sessions Court  under Section 439 Cr.P.C.  Sub-Section 2 of Section 439 Cr.P.C.

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specifically says that a High Court or the Sessions Court may direct  that any person who has been released on bail be arrested and  committed to custody.  The power of the High Court or the Sessions  Court under sub-Section 2 of Section 439 Cr.P.C. is very wide and it  specifically says that the Sessions Court or the High Court has got  power to cancel the bail granted by any of the subordinate courts  under Chapter 33 of  the Criminal Procedure Code.

       The plea of the appellant’s learned Counsel is that if the Sessions  Court had granted bail, the order of cancellation of such bail should  also have been passed by the Sessions Court or by any superior Court  and not by the learned Magistrate who is not empowered to cancel it.   As a general proposition, the plea raised by the appellant is correct.  It  is equally true that the accused who is on bail, should be heard before  an order of cancellation of bail is passed by the Court.   This Court in  Gurdev Singh & Anr. vs. State of Bihar & Anr.  2000(4) Crimes  103 =  AIR 2000 SC 3556 held that the accused must be given notice  and opportunity of hearing before the bail granted to him is cancelled.

       In the present case, the last condition stated in the Bail Order  was to the following effect:-

"The investigating officer shall scrupulously ensure that the  Petitioner complies with all conditions hereby imposed and  shall report breach of conditions, if any promptly to the  learned Magistrate who on receipt of such report shall take  appropriate action as if the conditions have been imposed  and the Petitioner released on bail by the learned  Magistrate himself."

       The order of the Sessions Court shows that the learned  Magistrate has been empowered to consider the question of violation  of any of the conditions imposed by the Sessions Court and was given  powers to pass appropriate orders.  The plea raised by the appellant’s  learned Counsel is that when the learned Magistrate had no such  power, the Sessions Court was not empowered to invest  that power in  the  Magistrate.  We do not find any force in this contention.  The  superior court can always give directions of this nature and authorise  the subordinate court to pass appropriate orders and the trial  Magistrate would be the competent authority to decide whether  any  condition had been violated by the person who had been released on  bail.  When there is a specific direction to pass appropriate orders as if  the conditions for granting  bail had been imposed by the learned  Magistrate himself, the impugned Order is legal and valid.

       The contention of learned Counsel for the appellant  that the  appellant was in prison in connection with  another case and  that is  why he could not appear before the Investigating Officer,  does not  appear to be true as such a plea was not raised before the learned  Magistrate.  The learned Counsel for the appellant only contended  before the learned Magistrate that he apprehended assault at the  hands of the police and, therefore, he refrained from making himself  available before the investigating officer.  The learned Magistrate  rightly rejected this plea.  The Order passed by the learned Magistrate  was correct  and the  High Court has  rightly rejected the Revision filed  by the appellant.

       We see no reason to interfere with the impugned judgment and  the appeal is accordingly dismissed .