Midhun v. State of Kerala

**“C.R”** **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 21ST DAY OF MAY 2019 / 31ST VAISAKHA, 1941** **Crl.MC.No. 2874 of 2019** **CRL.MC. NO.486/2018 ON THE FILES OF THE DISTRICT COURT & SESSIONS COURT, THRISSUR DATED 20-03-2019 CRIME NO. 97/2018 OF IRINJALAKUDA POLICE STATION, THRISSUR** ## **PETITIONER/1ST ACCUSED:** **MIDHUN, AGED 33 YEARS, S/O. PHALGUNAN, PATHAZHAKKATTIL HOUSE, PADIYUR DESOM, PADIYUR VILLAGE, IRINJALAKUDA, THRISSUR.** **BY ADVS. SRI.SHABU SREEDHARAN SMT.RESHMA ABDUL RASHEED SRI.M.YOHANNAN** ## **RESPONDENTS/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY SR. PUBLIC PROSECUTOR SRI. C.K.SURESH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC:2874/2019 2 ## **ORDER** This petition under Section 482 of the Code of Criminal Procedure is directed against the order passed by the learned Sessions Judge, whereby the Court below invoking its powers under Section 439(2) of the Cr.P.C has cancelled the bail granted to the petitioner in Crime No. 97 of 2018 of the Irinjalakkuda Police Station. 2. The skeletal facts need to be stated first. On 28.01.2018 at about 5.45 p.m., Sri. Sujith, a 26 year old man, went to the Private Bus Stand at Irinjalakkuda and confronted the petitioner, who is an autorickshaw driver, and he was asked to refrain from harassing and pestering Meenu, who is Sujith’s cousin sister. This led to an altercation. The petitioner allegedly went on a rampage and after pushing Sujith down, inflicted serious injuries on his head. Sujith was rushed to the hospital, but by then, he had fallen into a coma. Crime No.97 of 2018 of the Irinjalakkuda Police Station was registered _inter alia_ under Sections 307, 324, 341 of the IPC. However, despite providing medical assistance, the life of the injured could not be saved. He breathed his last on 31.01.2018. Consequent to his death, a report was submitted deleting Section 307 of the IPC and adding Sections 302 and 212 of the IPC. CRL.MC:2874/2019 3 3. The petitioner was arrested on 05.02.2018 and by order dated 13.04.2018, he was released on bail by imposing stringent conditions. Among other conditions, he was ordered not to intimidate or influence the witnesses, who are likely to give evidence before the court, and to co-operate with the trial. The petitioner was also ordered not to get involved in any offence. 4. According to the prosecution, after being enlarged on bail, the petitioner started threatening and harassing Meenu, the cousin of the deceased. She was the star witness cited by the prosecution to prove its case. He posted messages in his facebook account and continuously stalked the girl, virtually and physically. The girl was working in the Elite Hospital as a nurse and she found it difficult to carry on with her avocation. Her father complained to the investigating officer, who, in turn, summoned the petitioner and warned him. When there was no respite, Crime No.868 of 2018 was registered at the Irinjalakkuda Police Station under Section 354D of the IPC. 5. It is also the case of the prosecution that Crime No.866 of 2018 of Irinjalakkuda Police Station was registered against the petitioner for intimidating Sri. Vidya Madhavan, a near friend of the deceased, for putting up a facebook post calling upon eye witnesses to CRL.MC:2874/2019 4 come forward and disclose the incident which took place on the fateful day. According to the prosecution, the petitioner followed Sri. Vidya Madhavan in his autorickshaw and after intercepting him, threatened him with dire consequences, if he were to move against him. 6. Alleging that the petitioner had tampered and threatened the witnesses and that he had violated the bail conditions, the investigating officer filed a petition seeking cancellation, which was allowed by the learned Sessions Judge. 7. Sri.Shabu Sreedharan, the learned counsel appearing for the petitioner, submitted that the registration of the crimes is clearly a game plan of the investigating officer, who had an axe to grind against the petitioner. He would contend that though the first crime had allegedly occurred on 11.12.2018 and the second on 14.12.2018, both the crimes were registered simultaneously on 14.12.2018. According to the learned counsel, the petitioner was having an affair with the aforesaid Meenu and her parents were totally against the said relationship. He had no occasion to either stalk the witness or to intimidate her. He would urge that the materials which were relied on by the learned Sessions Judge to cancel the bail granted to the petitioner are trivial in nature and in that view of the matter, this Court CRL.MC:2874/2019 5 will be well justified in interfering with the order in exercise of powers under Section 482 of the Code. 8. The learned Senior Public Prosecutor has opposed the prayer with much vehemence. It is contended that Meenu is a prime witness of the prosecution and the statement given by the lady to the learned Magistrate under Section 164 of the Cr.P.C. would clearly show that the petitioner herein persistently followed her with a view to harass and intimidate her. Sujith, in fact, was murdered when he had questioned the petitioner for persistently harassing Meenu. In that view of the matter, the act of the petitioner will have to be viewed with utmost seriousness. He would also refer to the registration of the FIR in Crime No.866 of 2018 and it is submitted that final report has already been laid in the said case after investigation. The learned Senior Public Prosecutor would also refer to the order passed by the learned Sessions Judge and it is submitted that the petitioner having violated the bail conditions, it would no longer be conducive to a fair trial to allow the petitioner to retain his freedom by enjoying the concession of bail. All these aspects were meticulously considered by the learned Sessions Judge and there is absolutely no reason to interfere, submits the learned Senior Public Prosecutor. CRL.MC:2874/2019 6 9. I have considered the submissions advanced and have gone through the materials made available. 10. It is by now settled that rejection of a bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. The said power is invoked in cases where the accused is found tampering with the evidence, either during the investigation or during the trial, when the person on bail commits similar offence or any heinous offence during the period of bail, when the accused had absconded, if the superior court finds that the lower court has exercised its discretion in an improper manner, or in cases where the accused has misused the privilege of bail. These grounds are not exhaustive and have only illustrative. It is also settled that bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. (See **Central Bureau of Investigation, Hyderabad v. Subramani Gopalakrishnan** [(2011) 5 SCC 296]; **Dataram Singh v State of Uttar Pradesh** [(2018) 3 SCC 22)], **X v. State of Telangana** [2018 CRL.MC:2874/2019 7 ## (4) SCALE 494]. 11. In the instant case, Sujith was allegedly murdered when he questioned the petitioner and asked him to refrain from pestering and harassing his cousin sister. The allegation in Crime No.868 of 2018 would show that the petitioner had continued with his acts. The victim has given a statement under Section 164 of the Cr.P.C. reiterating the allegations. Furthermore, yet another crime has been registered against him for restraining and criminally intimidating Mr. Vidhya Madhavan, a close friend of the deceased. The court below has concluded that the supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. ## 12. In **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu and** **Anr.** [(2012) 9 SCC 446], the Apex Court has occasion to hold that the liberty of the individual cannot be accentuated to such an extent which would bring disorder in the society. It was observed as follows: “It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a CRL.MC:2874/2019 8 civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires.” 13. Having perused the records, I am of the considered view that the learned Sessions Judge has considered all the relevant factors while arriving at a decision to cancel the bail. I find no reason to interfere with the said order under Section 482 of the Cr.P.C. This petition will stand dismissed. However, it is made clear that the dismissal of this petition shall not preclude the petitioner from moving a fresh application for bail and if he chooses to do so, the same shall be considered by the court below and disposed of in accordance with law. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** KRJ CRL.MC:2874/2019 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 THE TRUE COPY OF THE FIR WITH THE FIS DATED 29-12018 IN CRIME NO. 97/2018 OF IRINJALAKKUDA POLICE STATION** **ANNEXURE 2 THE TRUE COPY OF THE ADDITIONAL STATEMENT OF CW1 DATED 29-01-2018** - **ANNEXURE 3 THE TRUE COPY OF INQUEST REPORT DATED 31-1-2018 ANNEXURE 4 THE TRUE COPY OF THE WOUND CERTIFICATE ISSUED FROM THE JUBILEE MISSION MEDICAL COLLEGE & RESEARCH INSTITUTE DATED 3-2-2018** - **ANNEXURE 5 THE TRUE COPY OF THE CHARGE SHEET DATED 31-3-2018 IN CRIME NO. 97/2018 OF IRINJALAKKUDA POLICE STATION.** - **ANNEXURE 6 THE TRUE COPY OF THE ORDER OF THE SESSIONS COURT, THRISSUR IN CRL.M.C NO. 486/2018 DATED 13-4-2018** - **ANNEXURE 7 THE TRUE COPY OF THE FIR WITH THE COMPLAINT DATED 14-12-2018 IN CRIME NO 866/2018 OF IRINJALAKKUDA POLICE STATION** - **ANNEXURE 8 THE TRUE COPY OF THE ADDITIONAL STATEMENT OF VIDYAMADHAVAN DATED 15-12-2018** - **ANNEXURE 9 THE TRUE COPY OF THE CHARGE SHEET DATED 24-12-2018 IN CRIME NO. 866/2018 OF IRINJALAKKUDA POLICE STATION.** - **ANNEXURE 10 THE TRUE COPY OF THE FIR WITH THE COMPLAINT DATED 14-12-2018 IN CRIME NO. 868/2018 OF IRINJALAKKUDA POLICE STATION** - **ANNEXURE 11 THE TRUE COPY OF THE CRL MP NO. 809/2019 IN CRL MC NO. 486/2018 BEFORE THE SESSIONS COURT, THRISSUR DATED 27-2-2019** - **ANNEXURE 12 THE TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER TO CRL MP NO. 809/2019 IN CRL MC NO. 486/2018 DATED 15-3-2019** - **ANNEXURE 13 THE FREE COPY OF THE ORDER OF THE SESSIONS COURT, THRISSUR IN CRL MP NO. 809/2019 IN CRL MC NO. 486/2018 DATED 20-03-2019.**