Selvan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 5[TH] DAY OF JUNE 2024 / 15TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 2482 OF 2024 ``` ``` CRIME NO.460/2022 OF VITHURA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER DATED IN BAIL APPL. NO.384 OF 2024 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/FIRST ACCUSED:`** ``` SELVAN, AGED 46 YEARS S/O CHELLAPAN, RESIDING AT ATTARIKATHU VEEDU,THAVAYKKAL, VITHURA VILLAGE, THIRUVANANTHAPURAM, PIN - 695551 ``` ``` BY ADVS. M.R.SARIN PARVATHI KRISHNA SNEHA JOY SAUMYA.P.S ASHA MARY KURIAN M.R.SASITH ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SENIOR PUBLIC PROSECUTOR SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.2482 of 2024 ## -:2:- Dated this the 5[th] day of June, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime.No.460/2022 of the Vithura Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 294(b), 323, 324, 326, 452, 506(ii) and 307 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 18.05.2024. 2. The essence of the prosecution case is that: on 16.05.2022, at around 23.00 hours, the accused, in furtherance of their common intention and out of their previous animosity towards the defacto complainant, when the defacto complainant asked the accused to return his money, the accused trespassed to the house of the defacto complainant with an intention to murder him B.A.No.2482 of 2024 ## -:3:- and forced him to have alcohol, then the accused 1 and 2 uttered obscene words at him and then the first accused hit him with an iron rod, and the second accused manhandled him. Thus, the accused have committed the above offences. 3. Heard; Sri.M.R.Sarin., the learned counsel appearing for the petitioner and Smt. Seetha.S, the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. He has been falsely implicated in the crime out of the previous animosity of the Investigating Officer towards the petitioner. The petitioner has been in judicial custody for the last two the in the case is years, investigation practically complete, and the final report has been laid. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. B.A.No.2482 of 2024 -:4:- 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that the petitioner is a history sheeter since he is involved in eight other crimes of similar nature spanning from 2004 to 2022. In fact, the petitioner was enlarged on bail in Crime No.460/2022 of the very same police station. However, the Court of Session, Thiruvananthapuram, by order dated 03.01.2024 in Crl.M.C.No.3366/2023 has cancelled the bail granted to the petitioner due to his post bail conduct. If the petitioner is released on bail, there is every likelihood of him committing similar offences and causing unrest in society. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, he and the second accused, had an intention to murder the defcto complainant assaulted the defacto complainant on his head with an iron rod. Indisputably, B.A.No.2482 of 2024 ## -:5:- the petitioner has been in judicial custody since 18.05.2022. The materials on record clearly reveal that the petitioner is accused in the following crimes registered by the Vithura Police Station: 1. Crime No.161/2004, registered for allegedly committing the predicate offence under Section 326 of the IPC. 2. Crime No.262/2005, registered for allegedly committing the predicate offence under Section 379 of the IPC. 3. Crime No.461/2010, registered for allegedly committing the predicate offences under Sections 498 (A) and 306 of the IPC. 4. Crime No.219/2014, registered for allegedly committing the predicate offence under Section 307 of the IPC. 5. Crime No.442/2017, registered for allegedly committing the predicate offence under Section 308 of the IPC. 6. Crime No.637/2019, registered for allegedly committing the predicate offence under Section 452 of the IPC. 7. Crime No.945/2020, registered for allegedly committing the predicate offence under Section 307 of the IPC. 8. Crime No.409/2022, registered for allegedly committing the predicate offence under Section 447 of the IPC. B.A.No.2482 of 2024 -:6:- 7. Admittedly, the Court of Session Court, Thiruvananthapuram, by Annexure A3 order dated 04.03.2023 had cancelled the bail granted to the petitioner in Crime No.945/2020 due to his post bail conduct. 8. It is well settled by three Judges Bench of the Hon’ble Supreme Court in **P. V. State of Madhya Pradesh and others** (2022 (3) SCR 823) that the court may cancel the bail only when there are supervening circumstances due to the post bail conduct of the accused. ## 9. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled B.A.No.2482 of 2024 -:7:- 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”. ## 10. Similarly, in **Kalyan Chandra Sarkar v. Rajesh** ## **Ranjan,** [(2004) 7 SCC 528], the Honourable Supreme Court observed thus: “11.The law regarding 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 ## B.A.No.2482 of 2024 ## -:8:- 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 with 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 [(2002) 3 SCC 598] and uran v. Rambilas [(2001) 6 SCC 338.) 11. The law has thus crystalised that while deciding an application for bail under Section 439, the courts are obliged to look into the nature, gravity and seriousness of the crime, the potential severity of the punishment that is likely to be imposed, the character, behaviour and standing of the accused, the prosecution’s legitimate apprehension regarding the tampering of evidence, the flight risk that is involved and whether releasing the accused on bail would have a deleterious impact on the society. B.A.No.2482 of 2024 -:9:- 12. In the case on hand, the petitioner is alleged to have committed a predicate offence under Section 307 of the IPC. In the facts narrated supra, it is also evident that the petitioner has committed similar offences spanning over a decade of the very same police station. Even though the petitioner was enlarged on bail by the Court of Session, Thiruvananthapuram, the order was subsequently cancelled the bail as the petitioner misused the liberty. 13. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, and on comprehending the seriousness, gravity, and nature of the accusations leveled against the petitioner, the grave antecedents of the petitioner for involving in a series of crimes, and further that the Court of Session has already cancelled the bail granted to the petitioner in Crime No.945/2020, I am of the definite view that the petitioner is not B.A.No.2482 of 2024 ## -:10:- entitled to be released on bail since it would have a deleterious impact on society and send a wrong message to the people. Resultantly, the application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/05.06.24 B.A.No.2482 of 2024 ## -:11:- ## **`APPENDIX OF BAIL APPL. 2482/2024`** ``` PETITIONER ANNEXURES ANNEXURE A1THE TRUE COPY OF FIR IN CRIME NO 460/2022 OFVITHURAPOLICESTATION, THIRUVANANTHAPURAM RURAL ANNEXUREA 2THE TRUE COPY OF THE ORDER IN CRL.M.C 3366/2023 IN SC 2696/2022 IN CRIME NO 460/2022 OF VITHURA POLICE STATION, THIRUVANNATHAPURAM RURAL ON 3.01.2024 ANNEXURE A3THE TRUE COPY OF THE ORDER IN CRL.MP 2000/2022 IN CRL.MC .282/2021 DATED 4.03.2023 ANNEXURE A4ORDERDATED12-02-2024INBAIL APPL.384/2024 ON HIGH COURT ```