While fully, firmly and finally espousing the basic fundamental cardinal principle which is enshrined in the legal maxim titled audi alteram partem or audiatur et altera pars which is a Latin phrase meaning listen to the other side or let the other side be heard as well, the Kerala High Court in a most commendable, cogent, courageous and convincing judgment titled Muhammed Yasin vs Station House Officer & Anr in CRL. MC No. 7667 of 2022 against the order/judgment in CRL.MP No. 2404/2022 of Fast Track Special Court (POCSO), Kalpetta and cited in 2022 LiveLaw (Ker) 572 that was finally heard on November 2, 2022 and pronounced the very same day 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 who is an accused under Sections 354A(I)(i) IPC and Sections 9 and 10 of the Protection of Children from Sexual Offences Act, 2012 without giving him an opportunity of being heard. The Kerala High Court thus set aside the bail cancellation order.

At the very outset, this most learned, logical, landmark, laudable and latest judgment authored by the Single Judge Bench comprising of Hon’ble Dr Justice Kauser Edappagath of Kerala High Court sets the ball rolling by first and foremost putting forth in para 1 that:
The order passed by the Fast Track Special Court, Kalpetta (for short, the court below) cancelling the bail granted to the petitioner even without hearing him is under challenge in this Crl.M.C.

As we see, the Bench then discloses in para 2 that:
The petitioner is the accused in Crime No.215/2022 of Vellamunda Police Station. The offences alleged against him are punishable under Sections 354A(I)(i) and Sections 9 and 10 of the Protection of Children from Sexual Offences Act, 2012.

To put things in perspective, the Bench then envisages in para 3 stating that, The petitioner was arrested on 19/6/2022 and was granted bail by the court below on imposing certain conditions as per the order dated 11/7/2022. Thereafter, the prosecution filed an application to cancel the bail on the ground that he has 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 even without giving notice to the petitioner or giving an opportunity to the petitioner to oppose the application, straight away allowed the application, cancelled the bail and also issued non bailable warrant.

Needless to say, the Bench then states in para 4 that:
I have heard Sri. Sunny Mathew, the learned counsel for the petitioner and Smt. T.V. Neema, the learned Senior Public Prosecutor.

Most significantly, most remarkably and also most forthrightly, the Bench then deems it apposite to hold without mincing any words after considering everything relevant in para 5 that:
The cancellation of bail is directly linked with personal liberty which is one of the cherished constitutional freedoms guaranteed under Article 21 of the Constitution of India. The 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.

It is 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. This cardinal rule of justice administration is espoused in the latin maxim audi alteram partem. It embodies the concept 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. The decision relied on by the court below [Ajeesh and Others v. State of Kerala (2021 (2) KHC 235)] does not lay down such a proposition of law.

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.

Finally and as a corollary, the Bench then finds no hesitation in coming to the inescapable conclusion wherein it held most elegantly, eloquently and effectively in the final para 6 that:
In the light of the above findings, the impugned order cannot be sustained and it is accordingly set aside. The court below shall 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 is hereby set aside. The Crl.M.C. is disposed of as above.

In a nutshell, we thus see that the Single Judge Bench comprising of Hon’ble Dr Justice Kauser Edappagath of Kerala High Court has made it quite abundantly clear in this brief, brilliant, bold and balanced judgment that in POCSO Act, the unilateral bail cancellation without hearing the accused is not legal. Such bail cancellation will be certainly struck down by the higher court as we see in this leading case also! Of course, it thus merits no reiteration that all the Courts must definitely pay heed and comply fully, firmly and finally with what the Kerala High Court has laid down in similar such cases so very commendably so that no one is ever condemned unheard.

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh