[Madhu lynching] Kerala High Court upholds cancellation of bail of 11 accused

The Kerala High Court on Monday upheld the decision of a lower court to cancel the bail granted to eleven accused persons who had allegedly beaten to death a tribal youth, Madhu in 2018 [Marakkar & Ors. v State of Kerala & Ors.]..Justice Kauser Edappagath held that the Sessions Court is empowered to invoke the power under Section 439(2) of CrPC and cancel the bail granted by the High Court to an accused and commit him to custody if he violates bail conditions. “A court of Session cannot go into the legality of the order passed by the High Court nor can it interfere with the order passed by the High Court on merits. But, in a case where the cancellation is sought on the ground of violation of the bail conditions, there is absolutely no challenge on the merits of the order. In fact, in such cases, by exercising the jurisdiction under Section 439(2) of Cr.P.C, the Court of Session is only implementing the conditions imposed by the High Court. It is not in any way interfering with or modifying the order passed by the High Court. For all these reasons, I hold that the Court of Session is empowered to cancel the bail granted by the High Court to an accused and commit him to custody consequent on his violating the bail conditions invoking the power under Section 439 (2) of CrPC,” the High Court said. .The judge held that the Special Court or Exclusive Special Court can also invoke the power under Section 439(2) of CrPC as they are also a Court of Session under Section 14 of the SC/ST (POA). “The power of the Special Court or Exclusive Special Court to grant bail is relatable to Section 439 or 437 of Cr.P.C. Going by Section 4(2) of Cr. P.C., the provisions in Chapter XXXIII regarding bail would be applicable in the absence of any contrary provision in the Special Act. Thus, when the Special Court or Exclusive Special Court grants bail to an accused, he is released on bail under Chapter XXXIII of Cr.P.C. As stated already, the Court of Session has power under Section 439(2) to cancel the bail granted under Chapter XXXIII. I have found that the Special Court or Exclusive Special Court constituted under Section 14 is essentially a Court of Session. Thus, the Special Court or Exclusive Special Court can very well invoke the power under Section 439(2) of CrPC,” it held. The Court further said that the trial court can interfere and rectify the situation if there is any serious violation of bail conditions granted by the superior court, without being a mute spectator. “It is not the law that if a serious violation of the bail conditions which sabotages the trial is noticed, the trial court is powerless, and it must refer the parties to the superior court which granted the bail for remedy. If any non-compliance with the bail conditions imposed by the superior court results in the trial being frustrated, it is for the trial court to take measures to correct it. The Court of Session cannot be a mute spectator of the flagrant violation of the conditions of bail imposed by the High Court subverting the judicial process. It certainly has the duty and responsibility to ensure that the violation of the conditions does not interfere with the fair trial", the judgment stated..The Court was considering an appeal challenging the order of the Special Court under the SC/ST Act which had canceled the bail granted to the accused by the High Court.The prosecution case was that Madhu, a mentally challenged tribal youth, was tied up and brutally beaten to death by the accused in Palakkad's Attapady. The accused had allegedly caught Madhu from a nearby forest and assaulted him after accusing him of stealing rice from a grocery shop.The appellants along with some other accused are facing trial for the offenses punishable under Sections 143, 147, 148, 323, 324, 326, 294(b), 342, 352, 364, 367, 368, and 302 r/w 149 of the Indian Penal Code (IPC) and Sections 3(1) (d), (r) (s) and 3(2) (v) of the Scheduled Caste and SC/ST(PoA) Act.The High Court had granted bail to them earlier subject to several conditions. The special court subsequently cancelled the bail after noting that several witnesses had turned hostile at the behest of appellant-accused. The accused then approached the high court invoking Section 14A of the SC/ST (Prevention of Atrocities) Act after their bail was cancelled by the Special Court. The prosecution submitted that Section 439(2) of CrPC gives concurrent jurisdiction to the High Court as well as the Sessions Court to direct that an accused released on bail under Chapter XXXIII of CrPC be arrested and committed to custody and as such the Court of Session is empowered to cancel the bail granted by the High Court on violation of the bail conditions.It was argued that the appellants were released on bail under Chapter XXXIII of CrPC pursuant to the bail granted by the High Court in the exercise of the appellate jurisdiction under Section 14A of the SC/ST(PoA) Act and hence the Court below was well within its power to invoke Section 439(2) of CrPC.Advocate PV Jeevesh, the counsel for the defacto complainant submitted that neither Section 14A of the SC/ST(PoA) Act nor Section 493(2) of CrPC interdicts the power of the Special Court/Court of Session to cancel the bail granted by the High Court. The appellants, on the other hand,argued that even if it is admitted that the Court of Sessions is empowered to cancel the bail granted by the High Court to an accused consequent on his violating the bail conditions invoking the power under Section 439(2) of CrPC, such power cannot be extended to the Special Court or Exclusive Special Court constituted under Section 14 of the SC/ST(PoA) Act.The High Court noted that the Court of Sessions is empowered to cancel the bail granted by the High Court to an accused and commit him to custody consequent on his violating the bail conditions invoking the power under Section 439 (2) of CrPC.In the absence of a specific provision in the SC/ST(PoA) Act for cancellation of bail, Section 439(2) of CrPC could be applied to cancel the bail or to arrest and commit to custody an accused who has been released on bail by the Special Court of the SC/ST(PoA) Act, the High Court said. “In short, the provisions of Cr.P.C would apply in a situation where a special enactment did not make any provision for investigation, inquiry, or trial independently or was silent on those aspects. Thus, in the absence of a specific provision in the SC/ST(PoA) Act for cancellation of bail, Section 439(2) of Cr.P.C could be applied to cancel the bail or to arrest and commit to custody an accused who has been released on bail by the Special Court or the Exclusive Special Court under the exercise of its original jurisdiction or by the High Court under the exercise of its appellate jurisdiction,” the order said. The Court after considering the evidence produced by the prosecution consisting of call data details between the appellants and witnesses said that when an accused to whom bail has been granted either tries to interfere with the course of justice or attempts to tamper with evidence or witnesses or threatens witnesses or indulges in similar activities, it would frustrate fair trial.Therefore, the Court upheld the decision of the Special Court to cancel the bail granted to the accused by the High Court. The petitioners were represented by advocates S Rajeev, V Vinay, M S Aneer, Sarath K P, Prerith Philip Joseph, Anilkumar C R, Nireesh Mathew, Revikrishnan, P A Reziya and Thomas J Anakkallunkal.The respondents were represented by Director General of Prosecution, Senior Advocate TA Shaji, Senior Advocate P Vijayabhanu, Additional Public Prosecutor P Narayanan, Senior Government Pleader Sajju, and advocates Jeevesh PV, and CK Radhakrishnan..[Read Judgment]