Anjana V Benny; Amala V Benny; Bincy v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` FRIDAY, THE 24[TH] DAY OF FEBRUARY 2023 / 5TH PHALGUNA, 1944 ``` ``` BAIL APPL. NO. 1278 OF 2023 ``` ``` CRIME NO.0021/2023 OF ALOOR POLICE STATION, Thrissur ``` ``` AGAINST THE ORDER/JUDGMENT IN CRMC 61/2023 OF ADDITIONAL DISTRICT ``` ## **`COURT, THRISSUR`** ## **`PETITIONERS/ACCUSED NOS.24, 25 AND 28:`** - **`1 ANJANA V BENNY AGED 25 YEARS D/O. BENNY MATHEW, VETTATHU HOUSE, ADAKKATHODE P.O., KELAKAM,KANNUR DIST., PIN - 670674`** - **`2 AMALA V BENNY AGED 23 YEARS D/O. BENNY MATHEW, VETTATHU HOUSE, ADAKKATHODE P.O., KELAKAM,KANNUR DIST. PIN - 670674`** - **`3 BINCY AGED 39 YEARS W/O. SHIJU, MUTTATHETTU HOUSE, ARAMBHA NAGAR, MURIYAD P.O., THRISSUR DIST., PIN - 680683 BY ADVS.`** - **`B.G.HARINDRANATH AMITH KRISHNAN H. M.GOPIKRISHNAN LEJO JOSEPH GEORGE`** ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 BY.SRI.S.SANGEETHARAJ, PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 24.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 1278 OF 2023 ``` ``` 2 ``` ## **ORDER** Dated this the 24[th] day of February, 2023 Anticipatory bail plea at the instance of accused Nos.24, 25 and 28 in crime No.21/2023 of Aloor police station is the crux of this petition filed under Section 438 of the Code of Criminal Procedure. 2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. 3. I have perused the case diary as such placed by the learned Public Prosecutor. 4. The prosecution case emanates from the case diary is that at about 18.15 hours on 05.01.2023 accused Nos.1 to 59, who hatched conspiracy to commit culpable homicide not amounting to murder of one Sajan Scaria and his father Shaji Mathayi, formed into unlawful assembly with knowledge that they are all members of the said assembly, after armed with weapons ``` BAIL APPL. NO. 1278 OF 2023 ``` ``` 3 ``` and thereafter they assaulted Sajan and Shaji in their attempt to commit culpable homicide. The prosecution would allege that the defacto complainant, Adwin Shaji and Anwin Shiji were travelling in KL 24 D 9000 Fortuner car, they were restrained in front of Kapara kadavu and assaulted. The prosecution allegation is that the mob attacked the defacto complainant and Adwin Shaji and Anwin Shiji by using knife, iron pipe, wooden stick, rock piece etc, but the defacto complainant and his brothers survived. On this premise, the prosecution alleges commission of offence punishable under Sections 143, 144, 148, 109, 283, 323, 324, 307, 427, 120B and 149 of IPC. 5. While pressing for anticipatory bail to the petitioners, the learned counsel for the petitioners would submit that the petitioners are innocent and they are ladies and home makers. Due to difference of opinion in between them, there occured scuffle and this crime emerged after the said scuffle. Further, it is ``` BAIL APPL. NO. 1278 OF 2023 ``` ``` 4 ``` submitted that the allegations as to commission of serious offence including 307 of IPC could not be justified even by the prosecution records and therefore, the petitioners, who have no antecedents and home makers are liable to be released on bail. Further, they are ready to abide by any conditions as a prerequisite for grant of anticipatory bail to aid the matter of investigation. 6. Whereas the learned Public Prosecutor strongly opposed grant of bail and submitted that the accused attacked the defacto complainant and others due to animosity arose out of the occurrence whereby the defacto complainant and his family left the ‘Zion Sabha’ and also published morphed photographs of one Nisha Sebastian. It is submitted further that law and order situation prevailing at the place of occurrence is sensitive and if the petitioners will be released on bail, there is likelihood of further clashes in between them and accordingly, they are not ``` BAIL APPL. NO. 1278 OF 2023 ``` ``` 5 ``` liable to be released on bail. He also pointed out the necessity of arrest, custodial interrogation and recovery of weapons. 7. On perusal of the case diary, the allegation is confined to attacks against the defacto complainant, and others on the premise that they have left ‘Zion Sabha’ and also published morphed photograph of one among the members of the said Sabha. The prosecution alleges use of knife, iron rod, pepper spray etc. by the mob, apart from use of hands, legs, foot wares etc. 8. On perusal of wound certificate pertaining to 5 persons, who alleged to have sustained injuries, in fact, only minor injuries were noted and no serious injuries diagnosed. The main allegation is against accused Nos.1 to 5 on the submission that they are the persons, who led the attack and the petitioners also there and accordingly, they are got arrayed as 24, 25 and 28 accused respectively. In the report of the Investigating Officer, ``` BAIL APPL. NO. 1278 OF 2023 ``` ``` 6 ``` it is stated that after the occurrence also, two more crimes were registered. Viz, crime No.24/2023 under Section 354A(1)(i), 294(b), 323, 324 of IPC and Section 8 r/w 7 of POCSO, crime No.26/2023 under Section 144, 148, 342, 323, 324, 506, 427 r/w.149 of IPC & Section 5 of Kerala Prevention of Damage to Private Property pament and compensation Act 2019 and crime No.27/2023 under Section 341, 325 and 308 of IPC and one among the offence is under Section 7 of POCSO. 9. Having appraised the facts of the case in the context of involvement of 59 persons and the same appears to be a protest in between the difference of opinion prevailing in between two groups, arrest and custodial interrogation are not necessary, and meaningful investigation is possible by directing the petitioners to subject themselves for interrogation and to aid the investigation. Hence, I am inclined to grant anticipatory bail to the petitioners herein, on conditions, and with specific direction to ``` BAIL APPL. NO. 1278 OF 2023 ``` ``` 7 ``` them to subject themselves for interrogation for the purpose of investigation and recovery of weapon, if any, at their instance. Accordingly, the bail application stands allowed and the petitioners can be enlarged on bail, on the following conditions: - i. The petitioners shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioners and can recover the weapons, if any, at their instance. In the event of arrest of the petitioners, the Investigating Officer shall produce the petitioners before the jurisdictional court on the date of arrest itself. - ii. On such production, the jurisdictional court shall release the petitioners on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only) each by themselves and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court. - iii. The petitioners shall co-operate with investigation and shall be made available for interrogation and ``` BAIL APPL. NO. 1278 OF 2023 ``` ``` 8 ``` for the purpose of investigation, as and when the Investigating Officer directs so. Further they shall appear before the Investigating Officer on all Wednesdays between 9 am and 10 am for six weeks from the date of their surrender. - iv. The petitioners shall not intimidate the witnesses or interfere with the investigation in any manner. - v. The petitioners shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted. ## **Sd/-** **A. BADHARUDEEN** **JUDGE** nkr ``` 9 ``` ## **`BAIL APPL. NO. 1278 OF 2023`** ## **`APPENDIX OF BAIL APPL. 1278/2023`** ``` PETITIONER ANNEXURES Annexure-A1TRUE COPY OF THE ORDER DATED 06.02.2023 BY THE I ADDITIONAL SESSIONS JUDGE (SESSIONS JUDGE-IN-CHARGE), THRISSUR Annexure-A2A TRUE COPY OF THE COMMUNICATION DATED 10.01.2023 RECEIVED FROM THE CWC IN RESPONSE TO AN RTI ENQUIRY Annexure-A3A TRUE COPY OF THE COMPLAINT DATED 05.01.2023 FILED BEFORE SHO, ALOOR POLICE STATION ``` - **`Annexure-A4 A TRUE COPY OF THE COMPLAINT DATED 09.01.2023 FILED BEFORE THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM`** - **`Annexure-A5 A TRUE COPY OF THE FIR FILED BY THE DEFACTO COMPLAINANT (FIR NO. 21/23) ON THE FILES OF ALOOR POLICE STATION AGAINST THE PETITIONERS DATED 06.01.2023`** - **`Annexure-A6 A TRUE COPY OF THE FIR FILED BY MRS.BINU VARGHESE AND HER MINOR DAUGHTER DATED 06.01.2023`**