[POCSO Act] Unilateral Bail Cancellation Without Hearing Accused Not Legal: Kerala High Court

The Kerala High Court on Wednesday reiterated that while hearing an application for cancellation of bail, even of an accused booked under the POCSO Act, an opportunity of hearing must be accorded to the accused.

It condemned the action of a local Fast Track Court which cancelled the bail of the Petitioner herein, an accused under Sections 354A(I)(i) IPC and Sections 9 and 10 of the Protection of Children from Sexual Offences Act, 2012, with an opportunity of hearing.

The bail cancellation was sought on the ground that the accused-Petitioner had contacted the victim child and violated other bail conditions.

Justice Kauser Edappagath, while setting aside the bail cancellation order, observed that, 

"When the cancellation of bail is sought either on the ground of post conduct of the accused like violation of the conditions of the bail or on the ground of the occurrence of supervening circumstances, the court must issue notice to the accused to explain why the bail granted to him should not be cancelled. He should also be given a fair opportunity of hearing. The order cancelling the bail unilaterally without hearing the accused cannot withstand legally".

The petitioner accused had been arrested on June 19, 2022 and had been granted bail by the court below on imposing certain conditions as per the order dated July 11, 2022. Subsequently, the prosecution filed an application to cancel the bail on the ground that he violated the conditions that he shall not see or communicate with the victim child in any manner and that he shall not enter the locality where the victim child resides. The court below thereon cancelled the bail and issued non bailable warrant against the petitioner accused even without giving notice or giving an opportunity to him to oppose the application. 

The High Court observed that cancellation of bail is linked with personal liberty which is one of the cherished constitutional freedoms guaranteed under Article 21 of the Constitution, and went on to note that, 

"...bail once granted cannot be cancelled in a mechanical manner without considering the post bail conduct of the accused and whether any supervening circumstances have rendered". 

The Court emphasized that it was the fundamental principle of natural justice that before any action is taken against an affected party, a notice must be given to him in order to present the cause against the proposed action. The Court also took note of the cardinal rule of justice administration of audi alteram partem that no person should be condemned unheard. 

"No decision should be taken by the court without hearing both sides. The finding of the court below that in a case where cancellation of bail is sought on the ground of violation of the conditions of the bail order, no notice need to be issued to the accused cannot be justified at all", it was observed.

The Court therefore set aside the order cancelling bail unilaterally without hearing the accused by the Court below and directed the latter to reconsider the application for cancellation of bail after giving sufficient opportunity to the petitioner to file an objection and for hearing. The non bailable warrant issued against the petitioner was also set aside. 

Case Title: Muhammed Yasin v. Station House Officer & Anr. 

Citation: 2022 LiveLaw (Ker) 566

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