Breaking: Madhu Lynching Case| Kerala High Court Upholds Special Court Order Cancelling Bail To 11 Accused

The Kerala High Court on Monday dismissed the appeals challenging a Special Court's order cancelling the bail granted to 11 accused persons in case of lynching of a tribal youth in February 2018. 

Justice Kauser Edappagath confirmed the order cancelling bail of 11 of the accused persons by the Mannarkkad Special Court under SC/ST (Prevention of Atrocities) Act. The bail granted to one of the accused was however upheld.

"All appeals dismissed except that of Accused number 11," said the court. 

Rejecting the contentions of the counsels for the appellants that the Court below had no jurisdiction to cancel the bail granted by the High Court, the Court held, 

"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".

The accused persons in the instant case had been charged for tying up and brutally beating a tribal youth to death for stealing rice from a grocery shop in Attappady in Kerala in February 2018. They were arrested on 24th February 2018, and remanded to judicial custody. Their bail applications before the Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad was rejected on 3rd April 2018. This was subsequently challenged before the High Court by invoking Section 14A of the SC/ST (Prevention of Atrocities) Act (hereinafter 'SC/ST (PoA) Act. The appeal was allowed on 30th May 2018, with an express condition that "the accused persons would not have any contact with the witnesses directly or over telephone or otherwise till the whole trial process is over, and they shall not make any attempt to influence or threaten the witnesses in any manner". The trial of the case started on 28th April 2022, but during the course of the same, it was found that out of the 16 prosecution witnesses, 14 had turned hostile. It was alleged by the prosecution that the accused persons had contacted the witnesses over phone and had won them over, thus violating the bail condition. 

Accordingly, the prosecution approached The Special Court for SC/ST (Prevention of Atrocities) Act, Mannarkkad (hereinafter 'the Court below'), for cancellation of bail granted to the accused. The Court below, had on 20th August, 2022, cancelled the bail granted to 12 of the 16 accused in the lynching case of the tribal youth. The bail was cancelled on the ground that the accused had influenced the witnesses during the course of the trial and had contacted the witnesses, as a result of which majority of the witnesses to the case had turned hostile.

Against the same, appeals were filed before the High Court by some of the accused persons. It was contended by Advocate S. Rajeev on behalf of the petitioner-accused that the Special Court lacked the jurisdiction to entertain and pass the impugned order since the bail had been granted by the High Court in exercise of appellate jurisdiction. Subsequently, the High Court had stayed the order of the Special Court cancelling the bail on 24th August 2022. 

On behalf of the various appellant accused in the various appeals that were filed, it was contended by the counsels, Advocates S. Rajeev, V. Vinay, M.S. Aneer, Sarath K.P., Prerith Philip Joseph, Anilkumar C.R., Nireesh Mathew, M. Revikrishnan, P.A. Reziya, and Thomas J. Anakkallunkal, that the Court below had no jurisdiction to cancel the bail granted by the High Court invoking Section 439(2) of Cr.P.C, especially when the bail was granted by the High Court in exercise of the appellate jurisdiction under Section 14A of the SC/ST(PoA) Act. "The question of propriety is involved", it was argued during the oral hearings on 31st August 2022. It was further argued that even if it was discerned that the Court of Session was 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 Cr. P.C, such power could not be extended to the Special Court or Exclusive Special Court constituted under Section 14 of the SC/ST(PoA) Act. It was contended that since the Special Court is not a High Court or Court of Session, it couldn't exercise the power conferred on the High Court or the Court of Session under S.439(2) of Cr. P.C. Additionally, it was contended that the had never interfered with the trial. It was submitted that no complaints had been made by any of the witnesses against the appellants regarding threat or coercion from their part and that just because the appellants happened to have telephonic conversation with the witnesses, it couldn't be taken as a ground as such to cancel the bail.

On the other hand, it was submitted by the Director General for Prosecution, T.A. Shaji, that Section 439(2) of Cr.P.C 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 Cr.P.C 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 further submitted that the appellants were released on bail under Chapter XXXIII of Cr.P.C 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 Cr.P.C., and by passing the same, the Court below was merely ensuring the implementations of the conditions imposed. Advocates Jeevesh P.V., C.K. Radhakrishnan, Senior Government Pleader and Additional Public Prosecutor P. Narayanan, Senior Government Pleader Sajju S., and Senior Advocate P. Vijayabhanu also appeared for the respondents. 

The Court in the instant case ascertained that the following important questions arose before it for consideration:

Firstly, whether the Court of Session, in the exercise of the power under Section 439 (2) of Cr.P.C, could cancel the bail granted by the High Court to an accused consequent on his violating the bail conditions; and 
Secondly, whether the Special Court or the Exclusive Special Court specified or constituted under Section 14 of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities Act), 1989 is empowered to cancel the bail granted by the High Court in the exercise of its appellate jurisdiction under Section 14A on the ground of violation of bail conditions invoking Section 439(2) of Cr.P.C.

Findings of the Court

Whether the Court of Session, in exercise of power under Section 439(2) Cr.P.C. could cancel bail granted by High Court:

It was found by the Court that Section 439 (2) which confers jurisdiction on the High Court or Court of Session to direct that any person who has been released on bail under Chapter XXXIII be arrested and committed to custody, also empowers the Court to cancel the bail though the phrase 'cancel the bail' is not mentioned therein. It was observed that, 

"An application for cancellation of bail under Section 439(2) of Cr.P.C is generally examined on the anvil of the existence of supervening circumstances or violation of the conditions of bail. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail have not been taken note of or it is founded on irrelevant considerations, then also the superior court can cancel the bail invoking Section 439(2)".

It was also importantly noted that, 

"the power vested in the Court of Session and the High Court to cancel the bail under Section 439 (2) of Cr.P.C is concurrent. There is nothing in Section 439(2) to suggest that the Court of Session has no power to commit a person released on bail by the High Court to custody".

The Court noted that while the Court of Session could not 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, however, 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", since in such a case, the "Court of Session is only implementing the conditions imposed by the High Court".

Hence, the Court in the instant case held that the Court of Session is empowered to cancel the bail granted by the High Court to the accused and commit them to custody consequent on his violating the bail conditions invoking the power under Section 439 (2) of Cr. P.C.

Whether the power to cancel bail under Section 439 (2) Cr.P.C. extends to the Special Court or Exclusive Special Court constituted under Section 14 of the SC/ST(PoA) Act:

The Court in the instant case perused Sections 2(1)(d) and 14 of the SC/ST(PoA) Act, and found that for the trial of offences under the Act, a particular Court of Session in each district is sought to be specified as a Special Court. It observed that the provisions clearly provided that the Special Court and the Exclusive Special Court, specified or established under the SC/ST Act, is a court of original jurisdiction having the status of and invested with the powers of the Court of Session. A perusal of Part-II of the first schedule of Cr.P.C and Section 3(2) of the Act, further convinced the Court that the Special Court and the Exclusive Special Court, under Section 14 of the SC/ST(PoA) Act was essentially a Court of Session. Additionally, it was found that 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., and that the Court of Session has power under Section 439(2) to cancel the bail granted under Chapter XXXIII. It added that the Special Court or Exclusive Special Court constituted under Section 14 is essentially a Court of Session, and could invoke the power under Section 439(2) of Cr. P.C. The Court also found that 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. Since the Court of Session is empowered to cancel bail granted by the High Court to an accused, the Court extended the application of the same to the Special Court or the Exclusive Special Court as well, and concluded that, 

"the Special Court or the Exclusive Special Court specified or constituted under Section 14 of the SC/ST(PoA) Act is empowered to cancel the bail granted by the High Court in the exercise of its appellate jurisdiction under Section 14A on proof of violation of bail conditions invoking Section 439(2) of Cr.P.C".

Holding:

The Court found that in the instant case, the call details between the appellant accused and the prosecution witnesses would show that the condition imposed in the bail order had been violated. 

"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 which would frustrate the fair trial, bail granted can certainly be cancelled", it was observed. 

The Court found that despite the arguments by the counsels for the appellants that the calls that were made between the appellant and the witnesses were because they were residents of the same locality, and that it was mainly incoming calls to the contacts of the accused by the witnesses, 

"...for the simple reason that the calls were incoming calls, it cannot be said that there is no violation of condition No.'c'. What is prohibited is contact between the accused with the witnesses. Even witnesses contacting the accused would also amount to violation of condition No.'c'".

The Court found overwhelming evidence from the call records produced by the Witness Protection Cell of the District Police Office, and other evidences that appellants had contacted the witnesses on several occasions, violating the bail conditions. The Court also dismissed the contention that the witnesses had not made any complaint against the accused that they were influenced and won over by the accused. It also took note that the mother of the deceased had been threatened and a crime had been registered in that regard.

On application of the test of balance of probabilities, and taking into account the other evidences, the Court thus found Accused persons No. 2 to 7, 9, 10, 12, 15 and 16 to have misused the bail privileges and won over the witnesses. However, the Court found no such evidence against Accused No. 11 and hence held that the cancellation of bail against him could not be sustained. 

Case Title: Marakkar & Anr. v. State of Kerala & Anr and connected cases

Citation: 2022 LiveLaw (Ker) 491

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