Kochomon @ Kuttappayi v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 BAIL APPL. NO. 20 OF 2024 ``` ## **`CRIME NO.886/2023 OF Kayamkulam Police Station, Alappuzha PETITIONER/S:`** ``` KOCHUMON @ KUTTAPPAYI, AGED 39 YEARS S/O SHAHUL HAMEED, KAZHCHAKUNNIL HOUSE, KAYAMKULAM, ALAPPUZHA, KERALA, PIN - 690106 BY ADVS. M.R.SASITH REETHU JACOB ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SRI.C.S HRITHWIK, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024 ALONG WITH BA 21/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application Nos.20 and 21 of 2024 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 30[TH] DAY OF JANUARY 2024 / 10TH MAGHA, 1945 BAIL APPL. NO. 21 OF 2024 ``` ``` CRIME NO.476/2023 OF Kareelakulangara Police Station, ``` ## **`Alappuzha`** ## **`PETITIONER/S:`** ``` KOCHUMON @ KUTTAPPAYI, AGED 39 YEARS KOCHUMON @ KUTTAPPAYI, S/O SHAHUL HAMEED, KAZHCHAKUNNIL HOUSE, KAYAMKULAM, ALAPPUZHA, KERALA, PIN - 690106 BY ADVS. M.R.SASITH REETHU JACOB ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SMT.SEETHA.S, SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.01.2024 ALONG WITH BA 20/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 3 Bail Application Nos.20 and 21 of 2024 ## **C.S.DIAS,J** **======================** **Bail Application Nos.20 and 21 of 2024 -----------------------------------** ## **Dated this the 30[th ] day of January, 2024** ## **C O M M O N O R D E R** The applications are filed under Section 439 of the Code of Criminal Procedure, 1973 _(‘Code’, for short),_ to release the petitioner on bail. In BA No.20/2024, the petitioner is the fifth accused in crime No.886/2023 of the Kayamkulam Police Station, Alappuzha, and in BA No.21/2024, the petitioner is the fifth accused in crime No.476/2023 of the Kareelakulangara Police Station, Alappuzha. As the petitioner is same in both the bail applications, they are being consolidated and disposed of by this common order. 4 Bail Application Nos.20 and 21 of 2024 2. In BA No.20/2024, the gist of the prosecution case is that: on 24.8.2023 at about 4.30 a.m, the accused (five in number) had with an intention to rob money from the defacto complainant, kidnapped and wrongfully confined him. For the said purpose, they had gone to the defacto complainant who was sleeping in his car bearing registration No.KL 29/D 3040 and told him that they wanted to talk with him. At that time, the second accused reached there in another car and the first accused asked the defacto complainant whether he has any dispute with the second accused. The third accused also went in another car with a sword and threatened the defacto complainant. He grabbed the money which was kept at the back seat of his car. At that time, a staff of the defacto complainant went to rescue him. But the accused locked him in the back seat of the car and around 6.00 a.m, the first accused threatened the defacto complainant and asked him to drive the car. The accused 3 and 4 abused the defacto 5 Bail Application Nos.20 and 21 of 2024 complainant in vulgar language and they went to his shop and took an amount of Rs.24,000/- . Thus, the accused have committed the offences punishable under Secs.506(ii), 323, 342, 324, 365, 368, 395 and 294(b) of the Indian Penal Code. 3. The gist of the prosecution case in BA No.21/2024 is that: around 6.40 a.m on 24.8.2023, the accused (six in number) formed themselves into an unlawful assembly and in furtherance of their common intention attacked CWs1 and 2 who were on motor cycle with sickle in hands and caused injuries to CW1 and committed robbery and decoity. Thereafter, they concealed and destroyed the evidence by dismantling the motor cycle. Thus the accused have committed the offences punishable under Secs.341, 323, 324, 394, 395 and 201 read with Sec.34 of the Indian Penal Code. 6 Bail Application Nos.20 and 21 of 2024 4. Heard; Sri.Sasith M.R, the learned counsel appearing for the petitioner and Smt.Seetha.S and Sri.C.S Hrithwik, the learned Public Prosecutors. 5. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crimes by the Police due to their animosity towards him. In BA No.20/24, the petitioner’s arrest was recorded on 4.9.2023 and in BA No.21/2024, the petitioner’s arrest was recorded on 15.9.2023. The petitioner has been in judicial custody for the last 175 days. The investigation in the cases is complete and recovery has been effected. The petitioner’s further detention is unnecessary. The learned counsel relied on the decision of the Hon’ble Supreme Court in **Maulana Mohammed Amir Rashadi vs State of U.P and another** [2012 KHC 4031] to bolster his contention that merely because there is some criminal antecedents against an 7 Bail Application Nos.20 and 21 of 2024 applicant, the same cannot be taken as a ground to deny bail to the applicant, unless there is a possibility of the applicant fleeing from the jurisdiction of the Court. Hence, he prayed that the petitioner is entitled to bail. 6. The learned Public Prosecutors strenuously opposed the applications. The Investigating Officers have filed separate bail objection reports. They have reiterated the gist of the prosecution in both the cases. It is contended that the petitioner is a habitual offender. He is involved in three other criminal cases, namely, crime No.153/2006 of the Kayamkulam Police Station registered for committing the offence under Sec.25 of the Arms Act, crime No.476/2023 of the Kareelakulangara Police Station registered for committing the offences under Secs.341, 323, 324, 382, 394 and 34 of the Indian Penal Code and crime No.599/2023 of the Santhanpara Police Station registered for committing the offences under Secs. 143, 144, 147,148, 506, 323, 324, 333, 8 Bail Application Nos.20 and 21 of 2024 353, 307 and 149 of the Indian Penal Code. Therefore, the petitioner is a history sheeter. If the petitioner is let off on bail, he is certain to commit similar offences and cause unrest in the society. Hence, the bail applications may be dismissed. 7. On a scrutiny of the materials placed on record, it is evident that the predicate offence in both the crimes is Sec.394 of the Indian Penal Code. The bail objection report also shows that the petitioner is an accused in two other crimes for allegedly committing a similar offence. He is also an accused in crime No.599/2023 for allegedly committing the predicate offence under Sec.307 of the Indian Penal Code. Therefore, prima facie it shows that the petitioner is a history sheeter. 8. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Another [(2010) 14 SCC 496],** in paragraph 9, the Honourable Supreme Court has observed as follows: 9 Bail Application Nos.20 and 21 of 2024 “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation: (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and, (viii) danger, of course, of justice being thwarted by grant of bail.” 9 . Again, the Honourable Supreme Court in **Kalyan** ## **Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another** [AIR 2004 SC 1866] has held thus: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. See Ram Govind Upadhyay v. Sudarshan Singh 10 Bail Application Nos.20 and 21 of 2024 and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)” 10. On an anxious consideration of the materials placed on record, the rival submissions made across the Bar, going by the nature, seriousness and gravity of the offences alleged against the petitioner, that the petitioner is a person with criminal antecedents and if the petitioner is released on bail it may have a deleterious impact on the society, I am of the definite view that the petitioner is not entitled to be released on bail as there is a danger of justice being thwarted. The application is meritless and it is only to be dismissed. Resultantly, the application is dismissed. sd/- sks/30.1.2024 **C.S.DIAS, JUDGE**