J. Jacob Kallummoodan v. State of Kerala and Jerin

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 16[TH] DAY OF AUGUST 2023/25TH SRAVANA, 1945** ## **CRL.MC NO. 4867 OF 2017** **AGAINST THE ORDER/JUDGMENT IN CMP 4599/2017 OF JUDICIAL MAGISTRATE** **OF FIRST CLASS -II, KOLLAM** ## **PETITIONER/DEFACTO COMPLAINANT:** **J.JACOB KALLUMMOODAN AGED 58 YEARS, S/O.JOSEPH KALLUMMOODEN, JOY VILLA, SAKTI KULANGARA P.O, KOLLAM** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.D.FEROZE SRI.V.VINAY** ## **RESPONDENTS/ACCUSED:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM - 682 031 (CRIME NO. 1412/2014 OF SHAKTIKULANGARA POLICE STATION, KOLLAM DISTRICT)** **2 JERIN AGED 29 YEARS, S/O.JERON, KADAPPURATH VEEDU, SHAKTIKULANGARA VILLAGE, SHAKTHIKULANGARA CHERY, KOLLAM DISTRICT - 69 1103** **BY ADVS. SRI.RENJIT GEORGE SRI.RENJIT GEORGE SRI.S.SUNIL NARAYANAN SRI.K.SHAJ** **SRI.P.G.MANU, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.08.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.MC NO. 4867 OF 2017** **2** ## **O R D E R** Dated this the 16[th] day of August, 2023 This Crl.M.C. has been filed by the defacto complainant in Crime No.1412/2014 of Shaktikulangara police station, where prosecution alleges commission of offences punishable under Sections 143, 147, 294(b), 326, 506(i) and 307 read with Section 149 of IPC and under Section 27 of the Arms Act. 2. The accused in the above crime is the 2[nd] respondent herein. The first respondent is the State of Kerala represented by the learned Public Prosecutor. 3. According to the petitioner, the order granting bail to the accused vide order in CMP No.4599/2017 dated 24.06.2017 is illegal since the order does not depict the reason for granting bail. Further it is argued that Annexure VII order, which is under challenge in this petition, was passed without assigning any reason and also on the 6[th] day of arrest holding that 'no custody application filed within 6 days'. Therefore, the order is _per se_ illegal and as such, the same requires interference of the hands **CRL.MC NO. 4867 OF 2017** **3** of this Court. 5. The learned counsel for the 2[nd] respondent submitted that after release of the accused, the accused executed bond and in obedience to the bail order, he has been appearing for the trial court on each posting days without fail and therefore, his bail may not be cancelled, after 5 years, particularly when he is available for trial. 6. The learned Public Prosecutor also conceded that the order lacks reasons and also the opportunity of the prosecution to file custody application within 15 days time has been denied by the learned Magistrate in a serious case involving offences punishable under Sections 326 and 307 of IPC and Section 27 of the Arms Act among other offences. 7. In order to address the contentions raised by both sides, I am inclined to extract Annexure VII order as such. **“IN THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASSII, KOLLAM** ## **Present:- xxxx, B.A., LL.B, M.B.L, Judicial Magistrate of the First Class-II, Kollam** Dated this, the 24[th] day of June, 2017 **CRL.MC NO. 4867 OF 2017** **4** ## **ORDER IN C.M.P.No.4599/2017 IN CRIME NO.1412/2014 OF** ## **SAKTHIKULANGARA POLICE STATION** Petitioner/Accused : Jerin(29), S/o.Jeron, Kadappurathu Veedu Sakthikulangara Village, Sakthikulangara Chery (By Adv.Latheesh R Prasad) Counter Petitioner : State – represented by the Sub Inspector of Police, Sakthikulangara Police Station (By A.P.P., Gr.II, Kollam) Offence : Punishable under sections 143, 147, 294(b), 326, 506(i), 307, 149 IPC 27 of Arms Act., Order : Bail application granted. This petition came up for hearing today and the court delivered the following: ## _**O R D E R**_ This is an application filed u/s.437 of Cr.p.C on behalf of the counsel of 1[st] accused involved in Crime No.1412/2014 of Sakthikulangara police station. Ist accused has been in prison for the last 6 days. Matter of of 2014. So far no police custody application filed. Hence bail granted to first accused on conditions. - 1 Execute bond for Rs.25,000/- with two solvent sureties. - 2 Appear before the Investigating officer in all he alternative Fridays at 10 A.M. for 1 month. - 3 Cooperate with investigation. Pronounced in open Court on this the 24[th] day of June, 2017 ## **Judicial Magistrate of the Ist Class-II, Kollam”** 8. On perusal of the order, it could be gathered that the Magistrate, without assigning any valid reasons granted bail to **CRL.MC NO. 4867 OF 2017** **5** an accused involved in a very serious crime, where custodial interrogation is necessary, before the expiry of 15 days of detention. It is stated in the order that even after expiry of 6 days, no custody application filed and therefore, the accused was granted bail on condition. 9. Before addressing the challenge, it is relevant to note the provisions under Section 167(2)(a) of Cr.P.C, which is as under: - “(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding- - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; - (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter” **CRL.MC NO. 4867 OF 2017** **6** 10. Therefore, the police has power to file custody application within a period of 15 days and police custody cannot be given beyond the period of 15 days. If so, non-filing of custody application for a period of 6 days by itself is not a ground for granting regular bail. Apart from the observation, the order does not say any reasons to grant bail. 11. In the decision reported in **Mansab Ali v. Irsan (2003 KHC 781 : 2003(1) SCC 632 : AIR 2003 SC 707 : 2003 SCC (Cri) 399 : 2003 Cri.LJ 871),** the Apex Court held that in granting or refusing the bail, the Courts are required to indicate, may be very briefly, the reasons for grant or refusal of bail. In this matter, the order was passed without assigning sufficient reasons. 12. It is to be noted that the prosecution has 15 days' time to file custody application and the Magistrate is not expected to grant bail for non-filing of custody application after 6 days of custody. Further, the Magistrate is duty bound to give reasons for grant of bail after 6 days of arrest of the accused **CRL.MC NO. 4867 OF 2017** **7** when the offences are very serious, as already extracted herein above. Thus, it appears that the Magistrate did not apply his mind or pass any order on merits. Therefore, the order passed was without any reasons. 13. Since the accused has been enjoying the benefit of bail, with effect from 24.06.2017 and there is no complaint for the prosecution that he disobeyed the bail conditions, cancellation of bail, after 5 years, cannot be considered. It is submitted by the learned Public Prosecutor as well as the learned counsel appearing for the petitioner/defacto complainant and the second respondent/accused that the matter has been pending as CP 97/2020 before the Judicial First Class Magistrate Court-II, Kollam. Therefore, there shall be a direction to the learned Magistrate to complete the committal proceedings within a period of four weeks from today so as to facilitate trial of the matter without fail. In the result, this Crl.M.C. stands disposed of as indicated above. **CRL.MC NO. 4867 OF 2017** **8** Registry is directed to forward a copy of this order to the court below for information and compliance. **Sd/A. BADHARUDEEN JUDGE** nkr **CRL.MC NO. 4867 OF 2017** **9** ## **APPENDIX OF CRL.MC 4867/2017** **PETITIONER ANNEXURES** ## **ANNEXURE 1** **TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 1412/2014 OF SHAKTIKULANGARA POLICE STATION ALONG WITH THE FIRST INFORMATION STATEMENT.** ## **ANNEXURE II** **TRUE COPY OF THE DISCHARGE SUMMARY ALONG WITH TREATMENT CERTIFICATE ISSUED FROM KIMS HOSPITAL, THIRUVANANTHAPURAM.** ## **ANNEXURE III** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 14.05.2016 BEFORE THE CITY POLICE COMMISSIONER ALONG WITH RECEIPT.** - **ANNEXURE IV TRUE COPY OF THE COMPLAINT SUBMITTED BY THE PETITIONER TO THE CITY POLICE COMMISSIONER ON 07.04.2016 ALONG WITH RECEIPT.** ## **ANNEXURE V** **TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER ON 260.7.2016 BEFORE THE CITY POLICE COMMISSIONER ALONG WITH RECEIPT** **ANNEXURE VI TRUE COPY OF THE REMAND APPLICATION DATED 18.06.2017** **ANNEXURE V11** **CERTIFIED COPY OF THE ORDER DATED 24.06.2017 IN CMP NO. 4599/2017 IN CRIME NO. 1412/2014 OF SHAKTHIKULANGARA POLICE STATION**