Magistrate Can Cancel Bail Granted By High Court For Violating Conditions When Specifically Authorised To Do So: Kerala High Court

In the instant case, the petitioners were given bail by the High Court which was subsequently cancelled by the Magistrate Court for violating the bail conditions. The petitioners challenged the order of the Magistrate on the ground that the Magistrate did not have the power to cancel the bail.

The petitioners pointed to the Court that application for cancellation of bail was filed under Section 439(2) of Cr.P.C. Section 439 deals with the powers of High Court and Sessions Court with regard to granting of bail. The petitioner said that the Magistrate Court has no power under Section 439(2) to grant bail.

Justice A. Badharudeen noted that it was specifically provided in the bail order that in case of violation of bail conditions, the prosecution is at liberty to move the jurisdictional court for cancellation of bail. Further, the Court observed that even though the application was moved under Section 439(2) of Cr.P.C, the power exercised by the Magistrate in view of the specific delegation of the High Court is to considered as one under Section 437(5) read along with Section 439(2) of Cr.P.C. On these grounds, the Court refused to interfere with the order of the Magistrate.

Background of the Case

A case was registered against the petitioners for offences under Sections 120B (criminal conspiracy), 406 (criminal breach of trust), 420 (cheating and dishonestly inducing delivery of property), 468 (forgery for purpose of cheating) and 471 (using as genuine a forged document) of IPC. The petitioners were arraigned as 2^nd and 3^rd accused in the case.

Accused no. 1 to 3 had started a company named M/s Statice Hotels Private Limited. Due to paucity of funds, the complainant and her husband agreed to invest some money into the company. Subsequently, the complainant through her husband invested 11.53 crores. However, by the time the money was being invested the 1^st accused had resigned from the directorship which was allegedly concealed from the complainant.

It was also contended that the 2^nd and 3^rd accused were already disqualified for their illegal practices. The allegation is that all the 3 accused entered into a conspiracy to deceive the complainant and her husband and induced them to invest huge sums of money. There was also allegation that they were given only 9.7% of the shares when it was agreed in the MOU to give 37% of shares.

The High Court gave them bail on strict conditions. One of the conditions was to surrender their passport before the jurisdictional court. The 1^st accused submitted his passport as per the direction. However, the 2^nd and 3^rd accused submitted their passport only after 19 months that too after getting a notice from the Court. The Magistrate Court cancelled the bail of the 2^nd and 3^rd accused on this ground.

Meanwhile, the 1^st accused had gone to Dubai with the permission of the Magistrate. The Magistrate had ordered that the 1^st accused shall not take employment/ employment residence in any foreign court without the permission of the Court. The complainant filed a petition for cancellation of bail of the 1^st accused on the ground that he applied for residence/ employment visa. However, the Magistrate did not cancel the bail.

The complaint moved the High Court against the order of the Magistrate not cancelling the bail of the 1^st accused. 2^nd and 3^rd accused moved the High Court challenging the order of the Magistrate cancelling the bail given by the High Court.

Observations of the Court

The Court found out that the Magistrate was correct in cancelling the bail given to 2^nd and 3^rd accused.

The Court noted that even if the 1^st accused was given a residence/ employment visa for a period of 3 years, he submitted his passport before the Magistrate Court after he came back as per the condition imposed by the Court. The Court also noted that the 1^st accused was within the jurisdiction of the trial court since then. The Court said that therefore it cannot be considered that the 1^st accused violated the condition imposed by the High Court. Therefore, the Court refused to interfere with the Magistrate's order refusing to cancel 1^st accused's bail.

Accordingly, both cases were dismissed.

Counsel for the Petitioners: Advocates Vivek Venugopal, Benny Joseph, M. B. Sandeep

Counsel for the Respondents: Advocates Jibu T. S. (PP)

Case No: Crl.MC 5631 of 2022 & 5639 of 2022

Case Title: Preetha Radhakrishnan v State of Kerala & Connected Case

Citation: 2025 LiveLaw (Ker) 171