Sethu v. State of Kerala and Station House Officer, Yeroor Police Station, Kollam

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945** **BAIL APPL. NO. 1116 OF 2024** **CRIME NO.810/2023 OF Yeroor Police Station, Kollam AGAINST THE ORDER/JUDGMENT CRMP 194/2024 OF I ADDITIONAL DISTRICT COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM PETITIONER/S:** SETHU AGED 50 YEARS S/O.MADHAVANACHARI, SATHI BHAVAN, CHOZHIYAKODE P.O, KULATHUPUZHA VILLAGE, KOLLAM DISTRICT -, PIN - 691310 BY ADVS. K.SIJU ANJANA KANNATH MARIYA JOSE ASWATHY VIJAYAKUMAR ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER YEROOR POLICE STATION, KOLLAM -, PIN - 691312 ## **OTHER PRESENT:** PP SMT SHINY V O THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 1116 OF 2024 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.810/2023 of the Yeroor Police Station, Kollam, registered against him, for allegedly committing the offence punishable under Section 326A of the Indian Penal Code. The petitioner was arrested on 28.08.2023. 2. The crux of the prosecution case is that: the accused had poured red chilly water on the bodies of the children who are the relatives of the defacto complainant. Since the defacto complainant advised the victims to file a complaint before the Police, the petitioner turned inimical towards him. Accordingly, on 27.08.2023, at around 11 p.m,. the accused poured acid on the face of the defacto complainant and he lost his eye sight. Thus, the accused has committed the above offence. 3. Heard; Sri. K.Siju, the learned counsel appearing for the petitioner and Smt. Shiny V.O., the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner BAIL APPL. NO. 1116 OF 2024 3 submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner has been in judicial custody since 28.08.2023. The investigation in the case is complete and the final report has been laid. Although the petitioner had preferred an application before the Court of Session-I, Kollam, the same has been dismissed by Annexure A4 order on the finding that the petitioner cannot be released on bail. The said finding is erroneous and perverse. The petitioner's continued detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the petitioner has committed a heinous offence. The investigation has been completed and the final report has been laid. The learned Sessions Judge has rightly dismissed the application and directed the petitioner to face the trial as an under trial prisoner. Taking into account the gravity of offence, the petitioner shall not be released on bail. Hence, the application may be dismissed. BAIL APPL. NO. 1116 OF 2024 4 6. The prosecution allegation is that the petitioner had poured acid on the face of the defacto complainant and he lost his eye sight. 7. In **Prasanta Kumar Sarkar v. Ashis** **Chatterjee and Another** [(2010) 14 SCC 496], the Honourable Supreme Court has observed as follows: - “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 danger, of course, of justice being thwarted by grant of bail.” 8. Subsequently, in **Kalyan Chandra Sarkar** ’s case, the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of BAIL APPL. NO. 1116 OF 2024 5 the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the witnesses by the accused. ## 9. In **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], the Hon'ble Supreme Court has held thus: “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the BAIL APPL. NO. 1116 OF 2024 6 commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” ## 10. It is also worth recollecting the observations made by the Hon'ble Supreme Court in **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr** [(2012) 9 SCC 446] in the following lines: “30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.” BAIL APPL. NO. 1116 OF 2024 7 On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar and on comprehending the nature, gravity and seriousness of the accusations leveled against the petitioner and that if the petitioner is let off on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence, I am satisfied that the learned Sessions Judge has rightly held that the petitioner has to face the trial as an under trial prisoner. Therefore, I hold that the petitioner is not entitled to be released on bail because there is a danger of justice being thwarted and having a deleterious impact on the society. The application is meritless and is only liable to be dismissed. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** rkc/16.02.24 BAIL APPL. NO. 1116 OF 2024 8 ## **APPENDIX OF BAIL APPL. 1116/2024** PETITIONER ANNEXURES THE COPY OF FIR IN CRIME NO.810/2023 OF YEROOR POLICE STATION DATED 28.08.2023 Annexure A1 THE COPY OF FIR IN CRIME NO.810/2023 OF YEROOR POLICE STATION DATED 28.08.2023 Annexure A2 THE COPY OF ORDER IN CRL.M.C NO. 2017/2023 DATED 25.09.2023 ON THE FILE OF SESSIONS COURT, KOLLAM Annexure A3 THE COPY OF ORDER IN CRL.M.C NO.2240/2023 DATED 28.10.2023 ON THE FILE OF SESSIONS COURT, KOLLAM Annexure A4 THE COPY OF ORDER IN CRL.M.P NO.194/2024 DATED 01.02.2024 ON THE FILE OF ADDL. SESSIONS COURT-I, KOLLAM