Jollyamma Joseph @ Jolly v. State of Kerala

B.A.1607/2020 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 20TH DAY OF MARCH 2020 / 30TH PHALGUNA, 1941** **Bail Appl..No.1607 OF 2020** **AGAINST THE ORDER IN CP 1/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THAMARASSERY** **CRIME NO.189/2011 OF Kodenchery Police Station, Kozhikode** ## **PETITIONER/ACCUSED NO.1:** **JOLLYAMMA JOSEPH @ JOLLY AGED 47 YEARS OCC. HOUSEWIFE W/O. SHAJU ZACHARIAS, POONAMATTAM VEEDU, KOODATHAI BAZAR, THAMARASERRY, KOZHIKODE DISTRICT.** **BY ADVS. SRIBIJU ANTONY ALOOR SRI.K.P.PRASANTH SRI.VISHNU DILEEP SHRI.SHAFIN AHAMMED SHRI.HIJAS T.T. SHRI.ARUNRAJ S. SMT.MEENU THAMPI** ## **RESPONDENT/COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **2 DEPUTY SUPERINTENDENT OF POLICE, DISTRICT CRIME BRANCH, KOZHIKODE DISTRICT 673 004.** **R1-2 BY SRI.SUMAN CHAKRAVARTHY, SENIOR PP** ## **OTHER PRESENT:** ## **SR PP SUMAN CHAKRAVARTHY** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 20.03.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.1607/2020 2 ## **ORDER** ## **Dated this the 20th day of March 2020** The petitioner, the 1[st] accused in Crime 189 of 2011 of Kodenchery Police Station registered for the offences punishable under Sections 110, 120B, 465, 467, 468, 471, 474, 302, 201, read with Section 34 of the Indian Penal Code and Section 2 read with Section 6(2) of The Poisons Act, 1919, is before this Court with this application for regular bail. 2. The prosecution case in a brief outline is that this petitioner was married to Roy Thomas (now deceased) on 14.07.1997 and they resided together as husband and wife at his residence namely Ponnamattam House, Koodathayi, Thamarassery. Two children were born to them in the wedlock. On 30.09.2011 Roy Thomas was found lying in the toilet of the said house in an unconscious stage and from there he was immediately rushed to a hospital, where he was declared dead. FIR was registered B.A.1607/2020 3 under Section 174 of Cr.P.C. at 21.00 hours on 30.09.2011 on the complainant of one Joseph a close relative of the deceased. Postmortem examination was conducted and it was revealed that he died due to Cyanide poisoning. The case was closed as a case of suicide. Later a complaint was lodged by Rojo Thomas, the brother of deceased, before the District Police Chief, Kozhikode on 20.06.2019.In the complaint, Rojo Thomas raised suspicion about the untimely and mysterious death of six persons in his family including his brother Roy Thomas, the deceased, his mother Annamma Thomas, father Tom Thomas, uncle Manchadiyil Mathew, close relative Sili Shaju and her 1 ½ year old child Alfine Shaju. He raised suspicion about the mysterious circumstances in which the deaths occurred and suspected all the deaths as murders. On the basis of the complaint lodged, the District Police Chief Kozhikode had conducted primary enquiry and filed report before the Deputy Inspector General of Police Kannur Range, Kannur and re-opened the case. Thereafter, a Special Investigating Team B.A.1607/2020 4 investigated the case from 19.08.2019 which includes exhumation of the dead body and chemical examination of the remnants. 3. On investigation, it was revealed by the investigating agency that the death of Roy Thomas was due to cyanide poisoning by this petitioner who collected the same from the 2[nd] accused with whom she had illegal relationship. The 2[nd] accused had collected it from the 3[rd] accused engaged in jewellery works with whom he had close acquaintance and the 1[st] accused, the petitioner, had administered cyanide by mixing it with food and served to Roy Thomas, her husband with the intention to kill him and thus killed him by poisoning with definite motive. The relationship of the petitioner and the deceased was strained. She had illicit relations and was desirous of grabbing his family property. She also entertained a desire to marry a financially sound person with permanent job and income. Therefore, she carried out the gruesome act of killing him, is the prosecution case. B.A.1607/2020 5 4. This petitioner was taken into custody on 05.10.2019. Now investigation has completed and charge sheet has been filed against the four accused before the Judicial First Class Magistrate Court-11, Thamarassery. Her earlier bail application was dismissed by the learned Sessions Judge, Kozhikode. 5. Sri. B.A. Aloor, the learned counsel appearing for the petitioner has submitted that in fact a civil dispute between this petitioner and the brother of deceased Roy Thomas had culminated in foisting this false case of cyanide poisoning by the 1[st] petitioner to her husband with the help of accused Nos. 2 and 3. In fact she is innocent but she has been falsely implicated in the case by the investigating agency. It was also argued by the learned counsel for the petitioner that she is languishing in jail for the last five months for no reason and hence,she is entitled to be released on bail is the stand taken by the learned counsel. 6. Sri. Suman Chakravarthy, the learned Public Prosecutor vehemently opposed the application and B.A.1607/2020 6 contended that though the investigation of the case is over and charge sheet has been filed against the accused and the case is pending as C.P. No. 1 of 2020 for committal proceedings, she is not entitled to be released on bail as custodial trial is absolutely necessary. It was also argued by the learned Public Prosecutor that apart from this case, she is the accused in five other cases in which she has been charged for murder of her close relatives by cyanide poisoning. The learned Public Prosecutor also stressed on the point that all the murders were committed in a very planned manner with crooked dedication, applying exact time interval and if she is released on bail, she will definitely influence and threaten the important witnesses and thus tamper with the evidence. It was also submitted that in the light of the peculiar circumstances, there exists no justifiable ground to grant bail to this petitioner. 7. Heard both sides. Perused the records. 8. The learned counsel for the petitioner argued for her release on bail mainly on four B.A.1607/2020 7 grounds, (i) as the investigation has been completed, further detention is not at all required. (ii) she is ready to co-operate with the trial of the case, (iii) she will not hamper the trial of the case in any manner, (iv) she will not endanger her life if enlarged on bail. The learned counsel for the petitioner had even the audacity to submit that if she is released on bail, the first thing that she intends to do, is to seek for police protection, as though the police force has no other job. I am not sure whether the petitioner had instructed the learned counsel to make such a submission. The learned counsel relies on the decision in **Dataram Singh** v. **State of U.P. and others** (AIR 2018 SC 980) where it was observed that the fundamental postulate of criminal jurisprudence is the presumption innocence, meaning thereby that a person is believed to be innocent until found guilty. He also relies on the decision of the Apex Court in **Shri. P. Chidambaram** v. **Central Bureau of Investigation** (AIR 2019 SC 5272) to substantiate his case that she is entitled to be B.A.1607/2020 8 released on bail. In **Chidambaram's case** , the Apex Court has considered the jurisdiction to grant bail in paragraph No.22 which reads as follows: “22. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;(iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondance; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280::2001 ICI 222). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an B.A.1607/2020 9 arbitrary manner. At this stage itself, it is necessary for us to indicate that we are unable to accept the contention of the learned Solicitor General that “flight risk” of economic offenders should be looked at as a national phenomenon and be dealt with in that manner merely because certain other offenders have flown out of the country. The same cannot, in our view, be put in a straightjacket formula so as to deny bail to the one who is before the Court, due to the conduct of other offenders, if the person under consideration is otherwise entitled to bail on the merits of his own case. Hence, in our view, such consideration including as to :flight risk” is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved.” 9. Per contra, the learned Public Prosecutor to buttress his argument that the petitioner is not entitled to be released on bail though charge sheet has been filed, placed reliance on the decision in **Kalyan Chandra Sarkar** v. **Rajesh Ranjan** [(2004) 7 SCC 528] where the Apex Court has set aside the order of the High Court concerned B.A.1607/2020 10 granting bail and observed in paragraph 14 as under: “14. ...... In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail.” 10. The learned Public Prosecutor further relies on the following decisions so as to argue that granting of bail in this case will be against the principle laid down by the Apex Court in cases where the gravity of the offences are severe and the possibility of the witnesses being tampered with, while on bail. B.A.1607/2020 11 **[** See **State of U.P.** v. **Amarmani Tripathi** [(2005) 8 SCC 21], **Rajesh Ranjan Yadav alias Pappu Yadav** v. **CBI through its Director** [(2007) 1 SCC 70] and **Gobarbhai Naranbhai Singala** v. **State of Gujarat** [(2008) 3 SCC 775] **]** The decision in **Chandrakeshwar Prasad alias Chandu** **Babu** v. **State of Bihar** [(2016) 9 SCC 443) is also relied on by the learned learned public prosecutor to assert his argument that the petitioner is not entitled to be released on bail during trial of the case where the settled position that applying discretion by the court in granting bail, must be in a judicious manner not as a matter of course, has reiterated. 11. The matters to be looked into by the court while considering grant of bail have again been reiterated by the Apex Court in **Anil Kumar Yadav** v. **State (NCT of Delhi) and another** [(2018) 12 SCC 129] and it has been further observed by the Apex Court in paragraph 29 as follows: “29. In the present case, the trial is at a very crucial stage. The trial court is yet to B.A.1607/2020 12 record the testimony of material witnesses including the complainant as well as all the material witnesses. The trial has commenced and the trial is said to be posted for 4.12.2017. For ensuring the fair trial, witnesses must be in a position to freely depose without fear. In the facts and circumstances of the case, we are convinced that a fair trial can be ensured only if the appellants are not enlarged on bail.” 12. As referred above, it is well settled by a catena of decisions that the discretionary power of the court in granting bail has to be exercised in a most judicious manner and there exists no straight jacket formula to allow or reject an application for bail. Whether,an accused is entitled for bail depends on so many important and relevant factors such as; the nature and gravity of the offence committed, the criminal antecedents of the accused,reasonable chance to flee from justice upsetting the trial of the case, apprehension of raising threat towards witnesses or influencing the witnesses, likelihood of the offence being B.A.1607/2020 13 repeated because of the criminal antecedents, the severity of the punishment etc. It is equally well settled that while considering a bail application, the court should not go into the details of the evidence meticulously and the other facts involved in the case as it is not relevant consideration and it may cause prejudice to the accused. Elaborate evaluation of each and every facts involved, on merits can not be taken into consideration at this stage and no doubt it is a matter for trial. But it is needless to say that while dealing with a bail application, a prima facie satisfaction of the court in support of charge and involvement of the accused are the important and integral elements. Here, the materials collected by the investigating agency would indicate prima facie that a heinous crime was committed by the petitioner with the aid of the other accused and managed to conceal the same for years. 13. Of course, the investigation is over and charge sheet has been filed against the accused. B.A.1607/2020 14 In fact, 248 witnesses have been cited by the prosecution to prove the allegations against the petitioner as well the co-accused and to establish the prosecution case. Out of the 248 witnesses, some material witnesses are close relatives of the deceased and close relatives of this petitioner. The death of Roy Thomas was on 30.09.2011 and the case was re-opened in the year 2019 on the complaint of CW 2, the brother of the deceased. CW 1 is the sister of the deceased and CWs 3 and 4 are the children of the deceased and the 1[st] accused/petitioner. CW1 to 4 are material witness apart from the other material witnesses. CW3 is aged only 20 years and CW 4 is a minor aged only 15 years. The petitioner is none other than their own mother, having much influence and domination over them. They were residing together with the deceased and the petitioner at the time of the alleged incident. They have to depose freely before the trial court about the matters that transpired in the family before his death. If the petitioner is enlarged on bail there is every B.A.1607/2020 15 possibility of winning over or terrorizing them by her influence as the mother of her children. The mindset of the petitioner appears to be so,from the materials available before the court. To ensure a free and fair trial, definitely further custody of this petitioner appears to be inevitable. Since witness Nos. 3 and 4 are material witnesses of prosecution like CWs 1 and 2, they have to give evidence before the court without any kind of fear, pressure or influence from the side of the petitioner and that too with confidence to attain justice. Being the children of the petitioner/1[st] accused, there is every possibility to intimidate them or putting them under threat and if that be so, a fair trial will not be possible. Further more, some of the other witnesses cited by the prosecution are also immediate neighbors of the 1[st] petitioner while she was residing with the deceased in Ponnamattom House, Koodathayi. Considering the peculiar nature of this case and circumstances involved they must able to depose the true and real facts before the court with out B.A.1607/2020 16 any pressure or influence or fear, for ensuring a fair trial, without any obstruction to justice. The apprehension expressed by the learned Public Prosecutor appears to be genuine, sound and reasonable considering the nature of the accusation levelled against this petitioner and the gravity of the offences alleged against her and the manner in which she committed the offence in this case as well in the other murder cases in which she is arraigned as the prime accused. 14. Deprivation of freedom by refusal of bail is of - course not for punitive purpose, but prima facie when there are reasonable grounds to believe that the petitioner had committed the offence and seriousness and the gravity of the offences alleged against her is quite obvious, while exercising the discretion in a judicious manner, this court can only reject her request to enlarge her on bail. In fact there are no circumstances justifying her release on bail, at this stage. She is the prime accused in five other murder cases. The deceased in all the cases were close relatives B.A.1607/2020 17 rather members of the very same family. Release of her on bail where charge is not even framed would shake the confidence of the public/ society in judicial system. To ensure a fair trial, I find that the discretion of this court cannot be exercised in favor of this petitioner, just considering the fact that she is a lady undergoing incarceration for the last more than five months. Dismissed. **Sd/-** **SHIRCY V.** **JUDGE** **sb**