No Legal Embargo Against Superior Courts Intervening With Bail Orders: Kerala High Court

The Kerala High Court has recently observed that although an order granting bail would not generally be interfered with by the superior Courts, there is no legal embargo against such intervention.Justice Kauser Edappagath thereby observed that a High Court may invoke its inherent powers under S.482 of CrPC in the aid of an order required to secure the ends of justice and for preventing abuse of the process of any court."Even though an order granting bail would not, under normal circumstances, be interfered with by the superior Courts, there is no legal embargo against such intervention. It is not as if once a bail is granted by any Court, the only way is to get it cancelled on account of its misuse."It was further held that the cancellation of bail interferes with the liberty of the individual and hence it must not be lightly resorted to. There have to be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting the bail."Where the discretion of the Court to grant bail has been exercised on relevant considerations and bail is granted, this Court would normally not interfere with such discretion unless it is found that the discretion itself is exercised on extraneous considerations and/or the relevant factors which need to be taken into account while exercising such discretion are ignored or bypassed." The petitioner's marriage was solemnized in 2008 but due to certain differences among them, she and her husband mutually decided to dissolve their marriage in 2020 and approached the court. During the pendency of the divorce proceedings, the petitioner registered herself on a matrimonial site to find a better partner. Meanwhile, the 2nd respondent herein allegedly approached her stating that his divorce proceedings were also in process and that the court papers to be obtained were delayed due to the Covid-19 pandemic. Thereafter, he constantly called the petitioner and promised to marry her. He also introduced her to relatives and friends. In August 2020, the petitioner who was employed at U.A.E came to Kerala for her divorce case and stayed in a hotel at Panampilly Nagar. The 2nd respondent visited her that day and shifted her to Business Hotel after a few days. The petitioner thereafter stayed at this hotel for over a week. During her stay, the 2nd respondent allegedly came to her room and asked for money. Since he had given her the impression that he was going to marry her, she handed over her debit card to him. Thereafter, he claimed that he badly wanted to marry her soon and requested the petitioner to have sexual intercourse with him which she turned down. It is the pettioner's case that the 2nd respondent threatened to publish her photos and videos and thereby raped her. After this incident, she came to know that he was in a live-in relationship with another woman and that the promise of marriage was made only to satisfy his sexual lust.Based on her complaint, a case was registered against the 2nd respondent. Thereby, he moved the trial court for anticipatory bail and this was granted to him in February. The petitioner being aggrieved by this, moved the High Court with this plea challenging the grant of pre-arrest bail. Advocate Blaze K.Jose represented the petitioner and submitted that the court must be cautious and circumspect in exercising discretionary power u/s 438 of Cr.P.C and that if the discretionary power to grant anticipatory bail was exercised without any valid reason or on considerations irrelevant or not germane to the determination, such order could not be sustained.He argued that the impugned order suffers from serious infirmities and would prejudicially affect the investigation as well as the trial resulting in serious miscarriage of justice to her. Meanwhile, Advocate Millu Dandapani appeared for the 2nd respondent and argued that the court below passed the order only after considering the entire facts and relevant records and on hearing the petitioner.It was also submitted that had there been rape as alleged by the petitioner at her room, it was quite unlikely that she would again come and stay in the very same room for days together, which was evidenced by documents. He also pointed out that she had not made a complaint about the same until January 2022. The Judge noted that Section 439(2) provides that the High Court or Sessions Court may direct that any person who has been released on bail under Chapter XXXIII be arrested and commit him to custody. It empowers the Court concerned to cancel bail though the phrase 'cancel the bail' is not mentioned in it.It was found that the inherent power under S.482 of the High Court is not affected by the provisions under S.439(2) as the power under S.482 is available to interfere with an order if it causes miscarriage of justice or if it is palpably illegal or unjustified and based on absolutely irrelevant materials.Further, Justice Edappagath observed that an order granting...

No Legal Embargo Against Superior Courts Intervening With Bail Orders: Kerala High Court

Hannah M Varghese

Misuse is not the only ground for cancellation of bail, said the Court.

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