Can Magistrate Cancel Bail Granted By High Court? Kerala High Court Answers
The Kerala High Court was considering a Petition filed by two accused persons challenging the order whereby their bail was cancelled by the Magistrate.
The Kerala High Court affirmed the decision of a Magistrate cancelling the bail granted by the High Court to two accused persons and observed that Section 437(5) of the Cr.P.C. permits any Court other than the High Court or Court of Sessions, which has released a person on bail under sub-section (1) of Section 437 or sub-section (2), to cancel the bail so granted to the accused person.
The High Court was considering a Petition filed by two accused persons challenging the order, whereby their bail was cancelled by the Magistrate on finding violation of the bail conditions.
The Single Bench of Justice A. Badharudeen noted, “While addressing the question as to whether which is the provision of law authorizes a Magistrate or a Court other than the High Court or Sessions Court to cancel the bail granted to an accused, Section 437(5) of Cr.P.C. permits any Court other than the High Court or Court of Sessions, which has released a person on bail under sub-section (1) of Section 437 or sub-section (2), to do the said exercise.”
Advocate Vivek Venugopal represented the Petitioner while Advocate Benny Joseph represented the Respondent.
Factual Background
The incident in question dates back to the year 2020 when a criminal case was registered alleging the commission of offences punishable under Sections 120B, 406, 420, 468 and 471 of IPC against accused Nos.1 to 3. It was alleged that the accused had started a company by the name M/s Statice Hotels Private Ltd. The Company, engaged in the business of hospitality and real estate, allegedly obtained permission to start a four-star hotel on the property. Due to the paucity of funds to start the business, the defacto complainant and her husband, who is an NRI, invested Rs 11.53 crores in the company in the year 2018.
It was the case of the complainant that the first accused concealed the fact that he had resigned from the directorship of the company and received the amount which was transferred. The other two accused persons, being the wife of the first accused and his sister in law, were disqualified for their illegal practices. The litigation commenced but the accused were released on bail by imposing conditions that the accused persons would surrender their passports before the Jurisdictional Court and would not go abroad without permission of the Court.
Reasoning
Expouding on the law relating to cancellation of bail, the Bench said, “When a Court grants bail after imposing conditions, violation of any of the conditions in a bail order would lead to cancellation of bail by invoking power under Section 437(5) of Cr.P.C. by the Magistrate and under Section 439(2) of Cr.P.C by the Sessions Court and the High Court.”
It was the specific allegation of the defacto complainant that the three accused persons violated the first condition in the bail order whereby the accused persons were asked to surrender their passports before the jurisdictional court and not go abroad without the Court’s permission. In case they did not have passports, they were supposed to file affidavits to that effect.
On a perusal of the facts of the case, the Bench noted that the first accused person obeyed this condition and surrendered his passport and, thereafter, got his passport released for a short visit to Dubai by filing an application before the trial court. He subsequently surrendered the passport on March 28, 2021, as directed by the trial court, even though the visa in the form of residence/employment was stamped for three years. However, the passports of the other two accused persons were surrendered after 19 months, that too on getting notice in the bail cancellation petition. The second accused also went abroad in the intergennum without surrendering the passport.
“In such a case, on meticulous analysis of the facts of the case, the learned Magistrate cancelled the bail granted to accused Nos.2 and 3. The said finding is justifiable and no interference is called for”, the Bench said.
The Bench explained that Section 437(5) of Cr.P.C. permits any Court other than the High Court or Court of Sessions, which has released a person on bail under subsection (1) of Section 437 or sub-section (2), to do the said exercise. “ It has been provided that the Court other than the High Court and Sessions Court may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. In fact, Section 439 of Cr.P.C. deals with special powers of High Court or Court of Session regarding bail and Section 439(2) of Cr.P.C. permits the High Court or Court of Session to direct that any person who has been released on bail be arrested and commit him to custody for valid reasons”, it added.
“Therefore, the application, even though filed by quoting Section 439(2) of Cr.P.C, the power exercised by the Magistrate, in view of the specific delegation by this Court, is to be reckoned as one under Section 437(5) read with 439(2) of Cr.P.C”, the Bench further held.
Dismissing the Petitions, the Bench ordered, “Interim order of stay granted in Crl.M.C. No. 5639/2022 in favour of accused Nos.2 and 3 in the matter of their surrender before the trial court stands vacated, with direction to accused Nos.2 and 3 to surrender before the Magistrate Court, forthwith, at any rate, within a period of seven days from today.”
Cause Title: Salini Vijayan & Anr. v. State Of Kerala (Neutral Citation: 2025:KER:17607)
Appearance:
Petitioner: Advocate Vivek Venugopal
Respondent: Advocate Benny Joseph, Advocates M.B.Sandeep, Public Prosecutor Jibu T S
