Johny Thomas v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 BAIL APPL. NO. 1644 OF 2024 ``` ``` CRIME NO.643/2023 OF ANCHUTHENGU POLICE STATION, ``` ``` THIRUVANANTHAPURAM ``` ``` AGAINST THE ORDER/JUDGMENT DATED 23.02.2024 IN CRMC NO.451 OF 2024 OF DISTRICT COURT & SESSIONS COURT, THIRUVANANTHAPURAM PETITIONER/FIRST ACCUSED: ``` ``` JOHNY THOMAS AGED 38 YEARS S/O. TERRENCE RESIDING AT PUTHUVEL VEEDU, THAZHAMPALLY, ANJUTHENGU.P.O, CHIRAYINKEEZHU TALUK, THIRUVANANTHAPURAM DISTRICT., PIN - 695309 ``` ``` BY ADVS. SASTHAMANGALAM S. AJITHKUMAR V.S.THOSHIN SATHEESH MOHANAN SREEJITH S. NAIR AKHIL SUSEENDRAN MAHIMA ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PUBLIC PROSECUTOR SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.1644 of 2024** ``` 2 ``` ## **Dated this the 13[th] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.643/2023 of the Anchuthengu Police Station, Thiruvananthapuram, registered against the accused (8 in number) for allegedly committing the offences under Sections 143, 147, 148, 341, 294(b), 323, 324, 427, 506(ii), 392 r/w Section 149 of the Indian Penal Code, Section 27 of the Arms Act, Section 3(a) of the Explosive Substance Act and Sections 3 and 5 of the Kerala Prevention of Damage to Private Property and Payment of Compensation Act. The petitioner was arrested on **B.A. No.1644 of 2024** ``` 3 ``` 17.1.2024. 2. The crux of the prosecution case, is that; on 7.10.2023, at around 00.30 hours, while a negotiation regarding the sale of a motor vehicle was taking place between the de facto complainant and the accused, the first accused struck the de facto complainant with a sword and, later, the accused 1 and 3 hurled a petrol bomb at the scene of occurrence and caused a terrifying atmosphere. The first accused threatened to murder the de facto complainant, and the other accused caused damage to the car causing a loss of Rs.2,50,000/- to the de facto complainant. Further more, the first accused robbed the de fecto complainant’s mobile phone valued at Rs.30,000/- Thus, the accused have committed the above offences. 3. Heard Sri. Sasthamangalam S. Ajithkumar, learned Senior Counsel appearing for the petitioner and **B.A. No.1644 of 2024** ``` 4 ``` Smt. Seetha S, the learned Senior Public Prosecutor. 4. The learned Senior Counsel appearing for the petitioner strenuously argued that the petitioner has been falsely implicated in the crime. The Investigating Officer has deliberately incorporated non-bailable offences only to ensure that the petitioner is detained in judicial custody. The petitioner is a cardiac patient. The prosecution case is fabricated and concocted. Actually, the petitioner is the owner of a fish transporting company. The de facto complainant and his friends had attempted to do away with the life of the petitioner. It is this incident that has been framed against the petitioner. Similarly, the allegations that the petitioner has criminal antecedents, is also incorrect, because most of the cases are prior to the year 2020, and the petitioner has already been acquitted in most of the cases. The petitioner’s life is in imminent danger due to his cardiac disease. The ``` 5 ``` ## **B.A. No.1644 of 2024** petitioner had cardiac problems while in judicial custody and was treated at the Medical College Hospital, Thiruvananthapuram. The investigation in the case is complete and recovery has been effected. If the petitioner is detained in jail, there is every likelihood of him getting infections and developing medical complications. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that the petitioner and his hirelings have committed a very heinous crime. The petitioner is a hardcore criminal as he is involved in 16 other cases of similar nature. If the petitioner is enlarged on bail, he is certain to sabotage the investigation and intimidate the witnesses. Also, his release would send a wrong message to the society. Hence, the application **B.A. No.1644 of 2024** ``` 6 ``` may be dismissed. 6. When the application came up for consideration on 5.3.2024, this Court directed the Jail Superintendent to ascertain as to whether the petitioner is a cardiac patient and was treated at the intensive care unit of the Medical College Hospital, Thiruvananthapuram, as submitted by his Counsel. 7. Pursuant to the above order, the Jail Superintendent, by communication dated 11.3.2024, has reported that the petitioner was remanded to the Sub Jail, Attingal on 17.01.2024. Subsequently, on 14.2.2024, he was transferred to the Central Prison & Correctional Home, Thiruvananthapuram, on medical grounds to facilitate his medical treatment, as per the order dated 13.02.2024 of the Deputy Inspector General of Prisons (SZ), Thiruvananthapuram. The medical records reveal that the petitioner has a history of Atrial Septal Defect **B.A. No.1644 of 2024** ``` 7 ``` (ASD). The petitioner was referred to the Government Medical College Hospital, Thiruvananthapuram, in view of his respiratory symptoms on 14.02.2024. During the course of his treatment, he was shifted to the Medical Intensive Care and shifted back to the ward on 19.02.2024. Thereafter, he was discharged from the hospital on 21.02.2024. However, he was again taken to the casualty on 23.02.2024 and he underwent a Echocardiography on 27.02.2024. An ultrasound scan is scheduled on 16.3.2024 with a review in the Respiratory Medicine Department on 23.3.2024, to assess his progress. As of now, there are no significant complaints and the petitioner is reported to be stable. 8. The gravamen of the prosecution allegation is that, the accused in prosecution of their common intention, had assaulted the de facto complainant and caused grievous injuries to him with a sword. Thereafter, they ``` 8 ``` ## **B.A. No.1644 of 2024** exploded a bomb, and then caused damage to the de facto complainant’s car and also robbed his mobile phone. 9. The petitioner had filed a similar application before the Court of Session, Thiruvananathapuram as Crl.M.C No.451/2024. By Annexure A5 order dated 23.2.2024, the learned Sessions Judge, dismissed the application, principally on the ground that the petitioner has criminal antecedents and there is every likelihood of him tampering with evidence and committing similar offences. 10. The prosecution asserts that the petitioner is involved in 16 other crimes. On a perusal of the materials on record, it is established that out of the 16 crimes, the petitioner has been acquitted in eight crimes and the proceedings in three crimes have been closed. Therefore, out of the 16 cases, 11 cases have been closed. As of ``` 9 ``` ## **B.A. No.1644 of 2024** now, there are five cases pending against the petitioner. Out of the five cases, one case is pending before the Assistant Sessions Judge, Attingal and the others are pending before the jurisdictional Magistrate at Varkala. 11. In **Sanjay Chandra v. CBI,** [2012 1 SCC 40], the Honourable Supreme Court has categorically held that the fundamental postulate of criminal jurisprudence is the presumption of innocence until a person is found guilty. Any imprisonment prior to conviction is to be considered as punitive and it would be improper on the part of the Court to refuse bail solely on the ground of former conduct. 12. In **Dataram Singh v. State of U.P** ., [(2018) 3 SCC 22] the Honourable Supreme Court observed that grant of bail is a rule and putting a person in jail is an exception. Even though the grant of bail is entirely the discretion of the court, it has to be evaluated based on ## **B.A. No.1644 of 2024** ## **`10`** the facts and circumstances of each case and the discretion has to be exercised in a judicious and compassionate manner. 13.In **State of Kerala v. Raneef** , [(2011) 1 SCC 784], the Honourable Supreme Court has declared that undertrial prisoners detained in jail for indefinite periods, without any sufficient reason or due to the delay in concluding the trial, will tantamount to infringement of their right to life guaranteed under Article 21 of the Constitution. 14. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, the materials placed on record, and especially taking into account the fact that the petitioner has been in judicial custody since 17.01.2024, which is nearly two months, that the investigation in the case is practically complete and recovery has been effected, and further on ``` 11 ``` ## **B.A. No.1644 of 2024** comprehending the fact that the petitioner has suffered cardiac problems while he is in custody, and has been advised to have follow up treatment, and the antecedents alleged against the petitioner are not fully correct, I am of the firm view that the petitioner is entitled to be released on bail. Hence, I am inclined to allow the bail application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: - (i) The petitioner shall appear before the Investigating Officer on every Tuesday and Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and ``` 12 ``` ## **B.A. No.1644 of 2024** when required; - (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; - (v) The petitioner shall not leave the territorial ## **B.A. No.1644 of 2024** ## **`13`** jurisdiction of the Court of Session, Thiruvananthapuram, without the permission of the jurisdictional court. (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme ``` 14 ``` ## **B.A. No.1644 of 2024** Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** ``` SD/- ``` rmm/13/3/2024 **C.S.DIAS, JUDGE** **B.A. No.1644 of 2024** ``` 15 ``` ## **`APPENDIX OF BAIL APPL. 1644/2024`** ## **`PETITIONER ANNEXURES`** |**`Annexure`**|**`1`**|**`THE TRUE COPY OF THE FIR IN CR.NO.643/23`**| |---|---|---| |||**`OF`**<br>**`ANCHUTHENGU`**<br>**`POLICE`**<br>**`STATION,`**| |||**`THIRUVANANTHAPURAM DISTRICT`**| |**`Annexure`**|**`2`**|**`TRUE COPY OF THE CMP NO.11010/2023 BEFORE`**| |||**`THE JFCM-1, VARKALA`**| |**`Annexure`**|**`3`**|**`TRUE COPY OF FIR IN CR.NO. 779/23 OF`**| |||**`ANCHUTHENGU`**<br>**`POLICE`**<br>**`STATION,`**| |||**`THIRUVANANTHAPURAM DISTRICT U/S.504 & 506`**| |||**`IPC`**| |**`Annexure`**|**`4`**|**`TRUE COPY OF THE REMAND REPORT IN`**| |||**`CR.NO.643/23 OF ANCHUTHENGU POLICE`**| |||**`STATION, THIRUVANANTHAPURAM DISTRICT`**| |**`Annexure`**|**`5`**|**`CERTIFIED`**<br>**`COPY`**<br>**`OF`**<br>**`ORDER`**<br>**`IN`**| |||**`CRL.M.C.NO.451/2024`**<br>**`LEARNED`**<br>**`SESSIONS`**| |||**`JUDGE THIRUVANTHAPURAM`**| |**`Annexure`**|**`6`**|**`THE TRUE COPY OF MEDICAL REPORT OF THE`**| |||**`PETITIONER`**|