Jolly Stephen v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944 BAIL APPL. NO. 4310 OF 2022** ## **PETITIONER/ACCUSED** JOLLY STEPHEN AGED 55 YEARS RANNIMUDI ESTATE, NEAR MASCO TEA FACTORY, VAGAMON, PIN - 685503 BY ADVS. S.JUSTUS M.N.VEDARAJ ## **RESPONDENT** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 SRI A RAJESH, PP (Sr.) **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.4310/22 2 K.BABU, J. -----------------B.A.4310 of 2022 ----------------------Dated : 5[th] July, 2022 ## ORDER 1. This is an application filed under Section 438, Cr.P.C. The petitioner is accused No.1 in VC.3/2019 of VACB, Idukki. The offences alleged against the petitioner are punishable under Sections 13(1)(d) r/w 13(2) of PC Act and Sections 465, 468 and 120(B) IPC. 2. The prosecution case is that the petitioner hatched a criminal conspiracy along with the other accused and got assigned an extent of 3.30 acres of land in Survey No.724 of Vagamon Village by means of a bogus patta and thereby the petitioner acquired possession of the land. The case of the petitioner is that he is innocent and he has not committed any offence as alleged. 3. Heard the learned counsel for the petitioner Sri.S.Justus and Sri.A.Rajesh, the learned Special Government Pleader appearing for the respondent. 4. On 23.6.2022 the petitioner was directed to appear B.A.4310/22 3 before the Investigating Officer for a period of three days from 27.6.2022 to 29.6.2022 for interrogation. When the matter was taken up on 30.6.2022, the learned Special Government Pleader submitted that the petitioner had not appeared before the Investigating Officer as per the directions of this Court. In response to that submission, the learned counsel for the petitioner submitted a document wherein it was mentioned that the petitioner tested positive for COVID. On perusal of that document, the learned Special Government Pleader raised doubt on the genuineness of it. Therefore, the petitioner was directed to produce a certificate from the competent authority to show the genuineness of the document. 5. The petitioner could not produce any evidence to show the genuineness of the document produced. The learned Special Government Pleader submitted, on instructions, that on verification of the ICMR Website, the details of any documents produced from the side of the petitioner were not found. 6. On 4.7.2022, the petitioner produced a certificate issued from the Ernakulam Medical Centre signed by Dr.Anne B.A.4310/22 4 Maria Josey for and on behalf of Dr.John Joshy. The certificate did not contain the seal of the hospital. The learned Special Government Pleader submitted, on instructions, that Dr.John Joshy had not authorized anybody to issue a certificate as produced by the petitioner. Moreover, the certificate does not contain IP/OP number. 7. The learned Special Government Pleader submitted a report prepared by the Inspector of Police, VACB, Idukki, stating that the petitioner was neither in-patient nor an out-patient of the hospital and the certificate was issued not as per the instructions of Dr.John Joshy and the same was signed by Dr.Anne Maria Josey, who is none other than the niece of the petitioner. The Inspector of Police further reported that Dr.Anne Maria Josey had stated to him that the petitioner had not visited the hospital for treatment. 8. The learned Special Government Pleader submitted a report filed by the Inspector of Police, VACB, Idukki objecting the reliefs prayed for. In the report it is stated that the petitioner was also accused in Crime B.A.4310/22 5 No.140/2019 of Vagamon police station alleging offences punishable under Sections 465 and 420 IPC and he was granted bail by this Court in B.A.4486/2019 on conditions. The conditions imposed by this Court in B.A.4486/2019 _inter alia_ includes a direction that he shall report before the Investigating Officer as and when required. It is stated that the petitioner has not appeared before the Investigating Officer when required in that case also. 9. The learned Special Government Pleader submitted that custodial interrogation of the petitioner is highly required in view of the allegations levelled against him. 10. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: 1) The nature and gravity of the accusation and the exact role of the Accused must be properly comprehended before arrest is made; 2) The antecedents of the applicant including the fact as to whether the Accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; 3) The possibility of the applicant to flee from B.A.4310/22 6 ## justice; 4) The possibility of the accused's likelihood to repeat similar or the other offences. 5) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. 6) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. 7) The courts must evaluate the entire available material against the Accused very carefully. The court must also clearly comprehend the exact role of the Accused in the case. The cases in which Accused is implicated with the help of Sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; 8) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and B.A.4310/22 7 ## unjustified detention of the Accused; 9) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; 10) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the Accused is entitled to an order of bail. **(Vide : Gurbaksh Singh Sibbia and Ors.** v. **State of Punjab [(1980) 2 SCC 565] and Sushila Aggarwal and Ors.** v. **State (NCT of Delhi) and Ors. [(2020) 5 SCC 1]** 11. While analyzing the facts of this case in the context of the afore-principles, I am of the view that the petitioner has failed to establish a _prima facie_ case for getting the benefits contemplated in Section 438 Cr.P.C. Granting pre-arrest bail to the petitioner will definitely affect the progress of the investigation. Moreover, the conduct of the petitioner in not complying with the directions of this Court is a relevant ground to be B.A.4310/22 8 considered while deciding the question of granting prearrest bail. Having regard to the entire circumstances, this Court is of the view that the petitioner is not entitled to anticipatory bail. The Application lacks merits. The Bail Application is dismissed. Sd/- **K.BABU , Judge** Mrcs