Chinnu Darwin @ Chinnu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944 CRL.MC NO. 6371 OF 2021** **AGAINST THE ORDER IN CRLMC 2551/2021 OF I ADDITIONAL SESSIONS COURT, ERNAKULAM** ## **PETITIONER/DE FACTO COMPLAINANT:** CHINNU DARWIN @ CHINNU AGED 31 YEARS 'QUEEN', PALAM ROAD, VADUTHALA, COCHIN-682023. BY ADVS. N.J.MATHEWS V.S.BABU GIREESAN ## **STATE/INVESTIGATING OFFICER & ACCUSED:** 1 STATE OF KERALA REPRESENTED BY THE ASSISTANT PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERAKULAM-682031. 2 THE STATION HOUSE OFFICER, INFORPARK POLICE STATION, KAKKANAD, ERNAKULAM-680030. 3 FEIALOH FRANCIS, AGED 35 YEARS RESIDING AT ABJ REVIRINE APARTMENT, AROOKUTTY ROAD, AROOKUTTY, ALAPPUZHA, PIN-688535. Crl.M.C.No.6371/2021 -:2:- 4 HELEN FRANCIS, AGED 55 YEARS W/O.FRANCIS XAVIER, RESIDING AT -DO- -DO- BY ADVS. BASIL CHANDY VAVACHAN GEORGIE SIMON CHARUTHA BHAIJU BASIL SCARIA ABEY GEORGE ## **OTHER PRESENT:** SRI SANGEETHA RAJ-PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 8.06.2022, THE COURT ON 15.06.2022 PASSED THE FOLLOWING: Crl.M.C.No.6371/2021 ## -:3:- O R D E R Dated this the 15[th ] day of June, 2022 This Crl.M.C. has been filed to cancel the anticipatory bail granted by the First Additional Sessions Court, Ernakulam (for short, the court below) to the accused in Crime No.1384/2021 of Info Park Police Station. 2. The petitioner is the de facto complainant. The 3[rd] and 4[th] respondents are the accused in the crime mentioned above. The 4[th] respondent is the mother of the 3[rd] respondent. The crime was registered pursuant to a private complaint filed by the petitioner against the 3[rd] and 4[th] respondents at the Judicial First Class Magistrate Court, Kakkanad. 3. The 3[rd] and 4[th] respondents are alleged to have committed the offence punishable under Sections 406 and 379 r/w 34 of IPC. 4. The case of the prosecution in short is that on 7/11/2021, in between 3.00 p.m. and 7.00 p.m, the 3[rd] and 4[th] Crl.M.C.No.6371/2021 -:4:- respondents committed theft of 20 sovereigns of gold ornaments and other household utensils belonging to the petitioner which were kept in a flat at Kakkanad where the 3[rd] respondent and the petitioner were residing. 5. The 3[rd] and 4[th] respondents moved an application for anticipatory bail at the court below as Crl.M.C No.2551/2021. The petitioner herein got herself impleaded in the bail application. The court below after hearing both sides including the petitioner herein, granted anticipatory bail to the 3[rd] and 4[th] respondents as per the order dated 8[th] December, 2021. The said order is under challenge in this Crl.M.C. 6. I have heard Sri.V.S.Babu Gireesan, the learned counsel for the petitioner, Sri.Sangeetha Raj, the learned Public Prosecutor and Sri.Basil Chandy Vavachan, the learned counsel for the 3[rd] and 4[th] respondents. 7. The learned counsel for the petitioner submitted that the court below passed the impugned order and granted Crl.M.C.No.6371/2021 -:5:- anticipatory bail to the 3[rd] and 4[th] respondents without taking into consideration any of the contentions of the petitioner and without bearing in mind the relevant aspects to be considered in an application for anticipatory bail. According to the counsel, the impugned order suffers from serious perversity and would seriously affect the investigation resulting in serious miscarriage of justice to the petitioner. Per contra, the learned counsel for the 3[rd] and 4[th] respondents submitted that the court below did not commit any error as alleged by the petitioner and it was only after considering the entire facts, relevant records and on hearing the petitioner, passed the impugned order. 8. This is not a petition u/s 439(2) of Cr.P.C seeking cancellation of bail in the strict sense. It calls in question the legality of the order granting bail invoking S.482 of Cr.P.C. It is settled that the inherent power u/s 482 of Cr.P.C of the High Court is not affected by the provisions of S.439(2) of Cr.P.C as the power u/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. The Crl.M.C.No.6371/2021 -:6:- Apex Court in _**Puran v. Rambilas**_ (2001 KHC 640) has held that the High Court in the exercise of power u/s 482 can set aside the perverse order granting bail. This Court recently in _**xxxx v. State of Kerala**_ (2022 (3) KLT 463) has held that if the order granting bail by the Court of Sessions is patently perverse, illegal, unjustified, suffers from serious infirmities, resulting in miscarriage of justice or is vitiated by the arbitrary and wrong exercise of discretion by the court or if there is manifest impropriety, the same can be set at naught by the High Court u/s 482 of Cr.P.C. 9. Now let me examine whether the impugned order is perverse or is vitiated by the arbitrary and wrong exercise of discretion by the court below warranting interference by this court under the exercise of the power u/s 482 of Cr.P.C. Coming to the facts of the case, the 3[rd] respondent is the husband of the de facto complainant. They were residing together at a flat viz., Jewel Richmond Crest View at Kakkanad. The lease deed in respect of the said flat stands in the name of the 3[rd] respondent. Admittedly, the relationship between the Crl.M.C.No.6371/2021 -:7:- petitioner and the 3[rd] & 4[th] respondents is not cordial. Matrimonial dispute exists between the petitioner and the 3[rd] respondent. The case of the petitioner is that on 7/11/2021 between 3.00 p.m and 7.00 p.m., the 3[rd] and 4[th] respondents committed theft of 20 sovereigns of gold ornaments and household utensils kept at the flat. It is pertinent to note that the flat was taken on lease by the 3[rd] respondent from the landlord. The crime was registered pursuant to a private complaint filed by the petitioner. The petitioner has no consistent version regarding the alleged incident. Before the court below, in the impleading petition filed by the petitioner, she stated that the 3[rd] and 4[th] respondents took her and her child to the parental home at about 11.30 a.m. on the date of the incident and went back saying that his father was hospitalized. It is further stated that thereafter on finding that there is no move to take her and the child back to their separate residence, she reached the apartment and found that the gold ornaments of 20 sovereigns and household items were missing. However, the version of the petitioner in her complaint to the police is that on 7/11/2021, 3[rd] respondent came Crl.M.C.No.6371/2021 -:8:- to their flat with goonda and looted 20 sovereigns of gold ornaments. The police during the investigation questioned the witnesses and also examined the CCTV footage. The investigation further revealed that the household articles were taken on lease from one Sri.Nesvin Sacharia James and he stated that those household articles were returned to him. Further, even though the police directed the petitioner to produce the bill or documents to prove the ownership and possession of the gold ornaments and household articles allegedly stolen, she could not produce those documents. It was considering all these facts and circumstances, the court below granted anticipatory bail to the 3[rd] and 4[th] respondents. When the discretion of the court to grant bail has been exercised on relevant considerations and bail is granted, this court would not normally interfere with such discretion unless it is found that relevant factors which need to be taken into account while exercising such discretion are ignored or bypassed. There have to be very cogent and overwhelming circumstances that are necessary to interfere with discretion in granting the bail. There is nothing on record to suggest that the Crl.M.C.No.6371/2021 ## -:9:- impugned order granting bail to the 3[rd] and 4[th] respondents passed by the court below is perverse, unjustified, illegal or is vitiated by the arbitrary and wrong exercise of jurisdiction warranting interference by this court exercising jurisdiction u/s 482 of Cr.P.C. Accordingly, Crl.M.C stands dismissed. **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp** Crl.M.C.No.6371/2021 ## -:10:- ## **APPENDIX OF CRL.MC 6371/2021** PETITIONER ANNEXURES |Annexure A1|TRUE COPY OF THE CMP NO.1774/2021| |---|---| ||DATED12/11/2021 OF THE JUDICIAL FIRST| ||CLASS MAGISTRATE COURT, KAKKANAD.| |Annexure A2|TRUE COPY OF THE FIR DATED 22/11/2021 OF| ||THE INFORPARK POLICE STATION| |Annexure A3|TRUE COPY OF THE CMP NO.1876/2021 OF THE| ||JFMC, KAKKANAD| |Annexure A4|TRUE COPY OF THE REPORT OF THE 2ND| ||RESPONDENT FILED IN CMP NO.1876/2021 IN| ||CRIME NO.1384/2021 OF INFORPARK POLICE| ||STATION.| |Annexure A5|TRUE COPY OF THE CRL.M.C.NO.2551 OF 2021| ||OF THE 1ST ADDITIONAL SESSIONS COURT,| ||ERNAKULAM.| |Annexure A6|TRUE COPY OF THE CMP NO.2161/2021 IN| ||CRL.M.C.NO.2551/2021 OF THE 1ST| ||ADDITIONAL SESSIONS COURT, ERNAKULAM.| |Annexure A7|TRUE COPY OF THE CMP NO.2250/2021 IN| ||CRL.M.C.NO.2551/2021 OF THE 1ST| ||ADDITIONAL SESSIONS COURT, ERNAKULAM.| |Annexure A8|TRUE COPY OF THE ORDER IN| ||CRL.M.C.NO.2551/2021 OF THE 1ST| ||ADDITIONAL SESSIONS COURT, ERNAKULAM|