Binu @ Abu and Ratheesh V.V. @ Bagan v. State of Kerala and Inspector of Police, Vattiyoorkavu Police Station

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945** **CRL.MC NO. 1619 OF 2023** **AGAINST C.M.P. NO.2564/2022 IN CC 2110/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEDUMANGAD CRIME NO.1177/2020 OF VATTIYOORKAVU POLICE STATION** ## **PETITIONERS/RESPONDENTS/ACCUSED 1 AND 2:** **1 BINU @ ABU AGED 42 YEARS, S/O HYDROSE @ BABY, RESIDING AT T.C. NO: 7/215(1), ANU ANANTHALAYAM VEEDU, V.K.P. NAGAR, KANJIRAMPARA, SASTHAMANGALAM, THIRUVANANTHAPURAM DISTRICT, PIN - 695010** **2 RATHEESH V.V. @ BAGAN AGED 40 YEARS, S/O VIJAYAN, RESIDING AT T.C. NO: 7/450, ASHA BHAVAN, V.K.P. NAGAR, KANJIRAMPARA, SASTHAMANGALAM, THIRUVANANTHAPURAM DISTRICT, PIN - 695010** **BY ADVS. SRI.J.R.PREM NAVAZ ADV.SUMEEN S. SRI.S.DILEEP SATHYAN SRI.MUHAMMED SWADIQ** ## **RESPONDENTS/PETITIONER/COMPLAINANT & STATE:** **1 STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN - 682031** **2 INSPECTOR OF POLICE VATTIYOORKAVU POLICE STATION** Crl.M.C. No.1619/23 ## **-:2:-** **THIRUVANANTHAPURAM DISTRICT, PIN - 695013** **BY SMT.SREEJA V., PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.03.2023, THE COURT ON 04.04.2023 PASSED THE FOLLOWING:** **-:3:-** Crl.M.C. No.1619/23 ## **BECHU KURIAN THOMAS, J. -------------------------------Crl.M.C No.1619 of 2023** **---------------------------------** Dated this the 4[th] day of April, 2023 ## **ORDER** Petitioners are accused in Crime No.1177 of 2020 of Vattiyoorkavu Police Station. They were released on bail by order of the learned Judicial First Class Magistrate's Court-II, Nedumangad in C.M.P. No.2935 of 2020 dated 21.12.2020. One of the conditions while granting bail was that petitioners shall not involve in any other crime. Alleging that in violation of the conditions of bail, petitioners have involved in another crime registered as Crime No.307 of 2022 of the same police station, the learned Magistrate has cancelled the bail granted to the petitioners by the impugned order dated 02.02.2023. In this petition, under section 482 of the Cr.P.C, petitioners challenge the order cancelling their bail. 2. Crime No.1177 of 2020 is now pending as C.C. No.2110 of 2021. The defacto complainant in the said crime is one Vishnudev. The offences alleged in the said crime are under sections 143, 147, 148, 323, 324, 342 and 326 r/w section 149 Crl.M.C. No.1619/23 **-:4:-** of Indian Penal Code, 1860. After the accused were granted bail on 21.12.2020, both of them are alleged to have brutally assaulted the very same defacto complainant for which Crime No.307 of 2022 is registered on 26.3.2022. A perusal of the wound certificate of the defacto complainant in the subsequent crime, which was handed over by the learned Public Prosecutor at the request of this Court, reveals that there was near total amputation of the right lower limb at the level of knee, pursuant to the assault by the accused. The very same defacto complainant, who was assaulted by the petitioners in Crime No.1177 of 2020, has been subjected to severe assault leading to the offence of attempt to murder in Crime No.307 of 2022. 3. Sri.J.R.Prem Navaz, the learned counsel for the petitioners vehemently contended that the order of cancellation of bail is perverse and liable to be interfered with. It was submitted that the defacto complainant had assaulted the children of the first petitioner and therefore, even if the allegations are assumed to be correct, the defacto complainant having been the aggressor and even contributed to the commission of the alleged offence, the bail granted to the petitioners ought not to be cancelled. It was further submitted Crl.M.C. No.1619/23 **-:5:-** that the lapse of time from the grant of bail and the subsequent offence was not reckoned by the learned Magistrate and hence the impugned order is liable to be set aside. 4. Smt. Sreeja V. the learned public prosecutor, on the other hand, opposed the contentions and submitted that petitioners had brutally attacked the defacto complainant resulting in serious injuries and therefore they had violated the conditions of bail. It was also submitted that the impugned order calls for no interference 5. Petitioners were granted bail on 21.12.2020 in Crime No. 1177 of 2020. One of the conditions for the grant of bail was that petitioners should not involve in any other offences. In violation of the said condition, petitioners are alleged to have brutally attacked the defacto complainant. Crime No. 307/2022 of Vattiyoorkavu police station has been registered against them. 6. The defacto complainant in the subsequent crime is the very same defacto complainant as in the earlier crime. The injury as noticed from the wound certificate in the subsequent crime reveals that there was a near total amputation of the right lower limb. Even though the subsequent offence was committed almost after two years of the commission of the earlier offence, since Crl.M.C. No.1619/23 ## **-:6:-** the very same defacto complainant has been attacked, it cannot be stated that the subsequent crime is insignificant. Since the very same defacto complainant was attacked one other condition of bail - that the witnesses shall not be threatened, has also been violated. 7. The contention that the defacto complainant was the person who provoked the attack or that he contributed to the commission of the offence is of no avail as the petitioners while enjoying their liberty under an order of bail cannot take the law into their hands, irrespective of any provocation. 8. In the decision in **Godson and Another v. State of Kerala** [2022 KHC Online 672] this court had held that mere violation of conditions alone is not sufficient to cancel the bail granted and that there must be very cogent and overwhelming circumstances necessary for cancelling the bail already granted. One of the considerations would be whether the supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail. In the decision in **Renjith v. State of Kerala** [(2023) 2 KHC 310] it was observed that the nature of the subsequent offence and the persons against whom the offence is Crl.M.C. No.1619/23 **-:7:-** alleged to have been committed, the stage of the case where cancellation is sought, are all factors that require appreciation. 9. Considering the aforesaid legal propositions, it can be concluded that the order cancelling the bail granted to the petitioners does not call for any interference. The brutal attack on the very same defacto complainant, causing near total amputation of one of his lower limbs has clearly resulted in the violation of the conditions of bail. The supervening circumstances have actually rendered it no longer conducive to a fair trial. In the above circumstances, I find no reason to interfere with the impugned order. 10. Notwithstanding the above, the petitioners shall not be precluded from seeking regular bail. In the event of any such application being filed, the same shall be considered by the appropriate court on its own merits and shall not be influenced by this order. This criminal miscellaneous petition is dismissed. Sd/- **BECHU KURIAN THOMAS JUDGE** vps Crl.M.C. No.1619/23 ## **-:8:-** ## **APPENDIX OF CRL.MC 1619/2023** ## **PETITIONER'S/S' ANNEXURES** - **ANNEXURE A1 THE TRUE COPY OF THE FIR IN CRIME NO: 1177 OF 2020 OF VATTIYOORKAVU POLICE STATION THIRUVANANTHAPURAM DISTRICT** - **ANNEXURE A2 THE TRUE COPY OF THE APPLICATION FILED BY THE 2ND RESPONDENT SEEKING CANCELLATION OF BAIL TO THE 1ST PETITIONER** - **ANNEXURE A2 (a) THE TRUE COPY OF THE APPLICATION FILED BY THE 2ND RESPONDENT SEEKING CANCELLATION OF BAIL TO THE 2ND PETITIONER** - **ANNEXURE A3 THE TRUE COPY OF THE NOTICE ISSUED TO THE COUNCIL FOR THE PETITIONERS IN CC NO: 2110 OF 2021 FROM THE OFFICE OF THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, NEDUMANGAD DATED 26.10.2022** - **ANNEXURE A4 THE TRUE COPY OF THE OBJECTION FILED BY THE 1ST PETITIONER BEFORE THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, NEDUMANGAD** - **ANNEXURE A5 THE TRUE COPY OF THE OBJECTION FILED BY THE 2ND PETITIONER BEFORE THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, NEDUMANGAD** - **ANNEXURE A6 THE CERTIFIED COPY OF THE ORDER DATED 02.02.2023 IN C.M.P. NO: 2564/2022 IN CC NO: 2110 OF 2021 PASSED BY THE COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, NEDUMANGAD IN THIRUVANANTHAPURAM DISTRICT** - **ANNEXURE A7 THE TRUE COPY OF THE COMPLAINT FILED BY THE WIFE OF THE 1ST PETITIONER BEFORE THE 2ND RESPONDENT DATED 27.03.2022** Crl.M.C. No.1619/23 ## **-:9:-** - **ANNEXURE A8** - **THE TRUE COPY OF THE O.P. TICKET ISSUED TO THE SON OF THE 1ST PETITIONER** **ANNEXURE A9** - **THE TRUE COPY OF THE COMPLAINT FILED BY THE 1ST PETITIONER AGAINST THE DEFACTO COMPLAINANT BEFORE THE 2ND RESPONDENT DATED 05.11.2021** - **ANNEXURE A10 THE TRUE COPY OF THE ACKNOWLEDGEMENT RECEIPT ISSUED BY THE WIFE OF THE 1ST PETITIONER BY THE 2ND RESPONDENT DATED 07.04.2022** - **ANNEXURE A11 THE TRUE COPY OF THE COMPLAINT FILED BY THE WIFE OF THE 1ST PETITIONER BEFORE THE VANITHA CELL THIRUVANANTHAPURAM DATED 02.04.2022** - **ANNEXURE A12 THE TRUE COPY OF THE FIR IN CRIME NO. 1186 OF 2020 OF VATTIYOORKAVU POLICE STATION THIRUVANANTHAPURAM DISTRICT** - **ANNEXURE A13 THE TRUE COPY OF THE FIR IN CRIME NO. 1396 OF 2021 OF VATTIYOORKAVU POLICE STATION THIRUVANANTHAPURAM DISTRICT** - **ANNEXURE A14 THE TRUE COPY OF THE FIR IN CRIME NO. 2137 OF 2019 OF VATTIYOORKAVU POLICE STATION THIRUVANANTHAPURAM DISTRICT**