Nikhil T.P. v. Sivasankar T.P. @ Sivaji, State of Kerala, and Station House Officer, Nallalam Police Station, Kozhikode

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY, THE 29[TH] DAY OF SEPTEMBER 2022 / 7TH ASWINA, 1944 ``` ``` CRL.MC NO. 4055 OF 2022 ``` ``` [AGAINST THE ORDER DATED 13.6.2022 IN CRL.MC NO.896/2022 ON THE FILE OF THE COURT OF SESSION, KOZHIKODE] CRIME NO.164/2022 OF NALLALAM POLICE STATION, KOZHIKODE ``` ## `PETITIONER/DEFACTO COMPLAINANT:` ``` NIKHIL T.P AGED 31 YEARS SON OF ( LATE ) CHANDRAHASAN, THAZHATHEPURAYIL HOUSE, CHERUVANNOOR, FEROKE P O, KOZHIKODE, , PIN – 673631 BY ADV P.U.SHAILAJAN ``` ## `RESPONDENTS/ACCUSED, STATE & INVESTIGATION OFFICER:` ``` 1SIVASANKARAN T.P. @ SIVAJI, AGED 55 YEARS SON OF LATE SUKUMARAN, THAZHATHEPURAYIL HOUSE, CHERUVANNOOR, FEROKE P O, KOZHIKODE, PIN 673631. 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 3STATION HOUSE OFFICER, NALLALAM POLICE STATION, NALLALAM P O, KOZHIKODE DISTRICT, PIN PIN - 673027 BY ADVS. FOR R1 BY ADV. ADITHYA RAJEEV FOR R2 AND R3 BY SMT. SEENA C., PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.07.2022, THE COURT ON 29.09.2022 PASSED THE FOLLOWING: ``` CRL.MC No.4055 of 2022 2 ## `O R D E R` ``` The petitioner is the defacto complainant in Crime No.164/2022 of Nallalam Police Station. The 1[st] respondent is the accused. The aforesaid case is registered against the 1[st] respondent for the offences punishable under Section 302 of the Indian Penal Code (IPC). ``` ``` 2.The prosecution case is that, on 29.4.2022 at 8 a.m., the 1[st] respondent, the brother of the petitioner’s father, attacked the petitioner's father on his head with a wooden stick and caused severe injuries to him. Consequent to the same, he was admitted to the hospital and while undergoing treatment, he died on 1.5.2022. The crime was initially ``` ``` registered for the offence punishable under Section 307 of IPC, and the police arrested the ``` CRL.MC No.4055 of 2022 3 ``` 1st respondent on 29.4.2022, i.e. the date of ``` ``` occurrence of the incident itself. After the ``` ``` death of the father of the petitioner on ``` ``` 1.5.2022, the police submitted a further report ``` ``` incorporating the offence under Section 302 IPC. Thereafter, as per Annexure-II order passed by the Sessions Court, Kozhikode in ``` ``` Crl.M.C. No.896/2022, the 1[st] respondent was granted bail on 13.6.2022. This Crl.M.C. is filed by the petitioner challenging the ``` ``` aforesaid order. ``` ``` 3.Heard Sri. P.U.Shailajan, the learned counsel for the petitioner, Sri. Adithya Rajeev, the learned counsel for the 1[st] ``` ``` respondent and Smt. Seena C., the learned ``` ``` Public Prosecutor for the State. ``` ``` 4.The contention of the learned counsel ``` ``` for the petitioner is that, the Annexure-II ``` ``` order passed by the learned Sessions Judge was ``` CRL.MC No.4055 of 2022 4 ``` not in tune with the legal principles relating to the circumstances under which the discretionary powers of the court under Section 439 of the Code of Criminal Procedure (Cr.PC) can be exercised. It is the specific case of the petitioner that, in Annexure-II order, no detailed discussions are seen made by the learned Sessions Judge as to the gravity of the offence, materials produced by the prosecution and the consequences of the release of the accused on bail against whom very serious allegations of committing murder of a person are alleged. The learned counsel contends that, when the discretion vested upon the court in the matter of granting bail was exercised improperly and without sufficient reason, the same can be set aside by this Court by exercising the powers under Section 482 Cr.PC. The petitioner also points out by placing ``` CRL.MC No.4055 of 2022 5 ``` reliance upon Annexure-III complaint that there ``` ``` was a threat on the part of the relatives of the accused person against the petitioner herein and hence the release of the accused would cause serious prejudice to them. The learned counsel for the petitioner places reliance upon the decisions inKalyan Chandra Sarkar v. Rajesh Ranjan [(2004)7 SCC 528], Brij Nandan Jaiswal v. Munna @ Munna Jaiswal and Another [(2009)1 SCC 678], Mahipal v. Rajesh Kumar @ Polia and Another [(2020)2 SCC 118] and Deepak Yadav v. State of U.P. and another[(2022) SCC OnLine SC 672]. ``` ``` 5.On the other hand, the learned Public ``` ``` Prosecutor would point out that, consequent to ``` ``` the order of the bail passed by the Sessions ``` ``` Court, he was released, upon complying with the ``` ``` conditions imposed thereon and the 1[st] ``` ``` respondent is complying with all the bail conditions imposed by the court and it is also ``` CRL.MC No.4055 of 2022 6 ``` submitted that, in case, the accused acts in contrary to the bail conditions, an application will be moved before the court for cancellation ``` ``` of the bail. ``` ``` 6.The learned counsel for the 1[st] ``` ``` respondent would seriously oppose the prayer sought by the petitioner. It was pointed out that, the learned Sessions Judge, while passing the order impugned in this case, specifically took into account the contents of the case ``` ``` diary and arrived at a conclusion that this is ``` ``` a case in which the accused can be released on ``` ``` bail by exercising the powers vested upon the court under Section 439 of Cr.PC. Since the court has already exercised its discretion based on materials placed before it, no ``` ``` interference needs to be made. It was also ``` ``` contended that the order granting bail could not be interfered with, in a routine manner ``` CRL.MC No.4055 of 2022 7 ``` unless there are cogent reasons warranting such interference. ``` ``` 7.The principles that must be considered while granting bail have been clearly mentioned inKalyan Chandra Sarkar’s case (supra). The ``` ``` factors which have to be taken at the time of granting bail have been laid down by the ``` ``` Hon’ble Supreme Court as follows: ``` ``` “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 etc..” ``` ``` It is also held in the said decision that while ``` ``` granting bail, the court should exercise its discretion in a judicious manner. InNeeru ``` ``` Yadav v. State of Uttar Pradesh and Another ``` ``` [(2014)16 SCC 508], it was observed as follows: ``` ``` “It is well settled in law that cancellation of bail after it is granted because the ``` ## CRL.MC No.4055 of 2022 8 ``` accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court”. ``` ``` InMahipal’s case (supra), it was held that ``` ``` when the court is considering an application of ``` ``` bail failed to consider relevant factors, an appellate court may justifiably set aside the order granting bail. The appellate court is thus required to consider whether the order ``` ``` granting bail suffers from non-application of ``` CRL.MC No.4055 of 2022 9 ``` mind or is not borne out from a prima facie view of the evidence on record. ``` ``` 8.Therefore, the question, in this case, is whether the learned Sessions Judge has complied with the aforesaid principles while granting bail as per Annexure-II order. It is true that, on going through Annexure-II order, it can be seen that, it is a very small order without much discussion on the facts of the case and the materials placed on record. However, it is discernible therefrom that the learned Sessions Judge examined the case diary before arriving at a decision on the matter. Apparently, the reason which prompted the learned Sessions Judge to grant bail was that the death of the deceased occurred due to the injuries on account of the assault allegedly made by the accused with a wooden stick. It is also evident from the ``` CRL.MC No.4055 of 2022 10 ``` records that, the deceased and the accused were brothers, and there were some property disputes between them. After perusing the contents of the case diary, the learned Sessions Judge concluded that the investigation in the said case was almost completed and no recovery was to be affected from the petitioner. Therefore, it was found that, further incarceration of the accused was not necessary and the order to release the petitioner on bail was granted in such circumstances. ``` ``` 9.After perusing the records, I am of the ``` ``` view that, even though the learned Sessions Judge did not make a detailed discussion with regard to the facts of the case, I do not find any necessity to interfere with the said order. As mentioned above, the incident occurred during a quarrel between the brothers about some property disputes that existed between ``` CRL.MC No.4055 of 2022 11 ``` them. The aforesaid fact is admitted. The question whether the aforementioned injuries inflicted by the 1[st] respondent/accused were with the intention to commit murder of the deceased or not, is a matter to be established during the course of the trial. The accused was released on bail after 46 days of incarceration. ``` ``` 10.As far as the interference in an order of bail is concerned, it is a well settled position of law that, since it is a matter interfering with the personal liberty of an individual, the said power has to be resorted tosparinglyandunderexceptional circumstances. Of course, if the order granting ``` ``` bail suffers from reasons which are perverse in ``` ``` nature or if the jurisdiction was exercised in an improper manner, nothing precludes this Court from interfering with the order of bail ``` CRL.MC No.4055 of 2022 12 ``` granted by the Sessions Court by invoking the powers under Section 482 of Cr.PC. ``` ``` 11.However, in this case, after going through the entire materials on record, I do ``` ``` not find any material indicating exceptional ``` ``` circumstances warranting interference in the order. It is true that, the petitioner has a case that, the release of the accused would cause a serious threat to them as according to him, the relatives of the accused have openly ``` ``` threatenedthepetitionerwithdire ``` ``` consequences, if they proceed with the case as against the accused herein. However, it is to be noted that, the aforesaid allegation is raised by the petitioner based on an incident which is highlighted by him in Annexure-III ``` ``` complaint submitted before the Police. On ``` ``` perusal of Annexure-III, it is seen that, the ``` ``` said incident allegedly occurred at a time when ``` CRL.MC No.4055 of 2022 13 ``` the accused was in judicial custody. The ``` ``` persons shown as responsible for making threats ``` ``` in Annexure-III are some of the relatives of ``` ``` the accused. Since the accused was in custody at the relevant time, under no circumstances the same can be treated as an incident which ``` ``` necessitates interference in the order of bail ``` ``` granted to the accused. ``` ``` 12.Now, the fact remains that the ``` ``` petitioner is already released on bail, and he has complied with all the conditions imposed by the learned Sessions Judge. Even according to the prosecution, no further recovery is to be effected as part of the investigation and the incarceration of the petitioner is not ``` ``` necessary for any purposes. Therefore, I am of ``` ``` the view that, no interference is warranted in Annexure-II order passed by the learned Sessions Judge. ``` CRL.MC No.4055 of 2022 14 ``` In such circumstances, this Crl.M.C. is ``` ``` dismissed as I do not find any merits therein. ``` ``` Sd/- ``` ``` ZIYAD RAHMAN A.A. JUDGE ``` ``` pkk ``` CRL.MC No.4055 of 2022 15 ## `APPENDIX OF CRL.MC 4055/2022` ``` PETITIONER’S ANNEXURES ``` ``` ANNEXURE ITHE TRUE COPY OF THE F.I.R. IN CRIME NO.164/2022 OF NALLALAM POLICE STATION, KOZHIKODE DISTRICT DATED 29.4.2022 ANNEXURE IITHE TRUE COPY OF THE ORDER IN CRL.M.C. NO.896/2022 DATED 13.6.2022 PASSED BY THE SESSIONS COURT, KOZHIKODE ALONG WITH TRUE TYPED COPY ANNEXURE IIITHE TRUE COPY OF THE COMPLAINT DATED 1.5.2022 ALONG WITH RECEIPT DATED 1.5.2022 ISSUED BY SUB INSPECTOR OF POLICE, NALLALAM POLICE STATION, KOZHIKODE CITY ```