Shaju P. v. Thampi and Sathyan and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Annie John
Judgment Date: 2019-04-05
Court Decision / Holding: The petition is dismissed; the bail granted to respondents 1 and 2 stands and the proceedings do not warrant cancellation of bail under Section 439(2) Cr.P.C.
Final Disposition: Petition dismissed; bail remains in force for the respondents

Parties to the Case

Appellants / Petitioners

Shaju P.

Respondents

Thampi
Sathyan
State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Gopakumar R. Thaliyal
• R.B. Rajesh

Counsels for Respondents

• Amina Banu
• Anzar Basheer
• Babu Cherukara
• K.S. Gireesan
• P.A. Salim
• Sevi Varghese

Case Synopsis & Summary

Shaju P., the de facto complainant in Crime No. 1665/2014 of Nemom Police Station, approached the Kerala High Court by filing Crl.MC No. 407 of 2015 challenging the bail order dated 18.11.2014 passed by the Judicial First Class Magistrate-I, Neyyattinkara in CMP No. 7917/2014. The petition argued that the respondents 1 and 2, Thampi and Sathyan, were granted bail in a case involving serious offences (Sections 308 and 326 r/w 34 IPC) despite the victim sustaining severe injuries including head trauma and loss of a tooth; the order was passed without application of mind and violated the seriousness of the offences. It was contended that after release on bail the respondents threatened witnesses and the de facto complainant, undermining the prosecution. The prosecution reported that, on investigation, the accused had, so far, not engaged in activities violating the bail conditions, and no further complaints had been received. The High Court, while noting the bail order and the defense arguments, discussed two Supreme Court authorities, Kanwar Singh Meena v. State of Rajasthan and Puran v. Ramvilas, to illustrate the power of a superior court under Section 439(2) Cr.P.C. to cancel bail for serious infirmities. On the facts, however, the court found no ground to cancel bail, dismissed the petition, and preserved the bail conditions.

Provisions of Law Cited

IPC 308IPC 326 r/w 34Cr.P.C. 439(2)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that granting bail to the respondents in a heinous offence, with serious injuries to the de facto complainant, was erroneous and suffered from lack of reasoned application of mind. He seeks cancellation of bail under Section 439(2) Cr.P.C., citing authorities that misuses or infirmities in bail orders can be corrected by higher courts and that threats to witnesses post-bail indicate miscarriage of justice.

Contentions of Respondents

The respondents argue that the bail order was passed after due process and subject to conditions; there is no evidence of continued violation of bail conditions or intimidation of witnesses as per the latest police report; hence there is no basis to cancel bail.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Kanwar Singh Meena v. State of Rajasthan	2012 (4) KLT SN 105	Mentioned Only	Cited to illustrate the proposition that the High Court or Sessions Court can cancel bail for serious infirmities, but the present case does not apply that principle.
Puran v. Ramvilas	2001(2) KLT SN 80	Mentioned Only	Cited to indicate that arbitrary or wrong exercise of discretion can be corrected by superior courts; not directly applied to cancel bail in this case.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **FRIDAY, THE 05TH DAY OF APRIL 2019 / 15TH CHAITHRA, 1941** ## **Crl.MC.No. 407 of 2015** **AGAINST THE ORDERMENT IN CMP 7917/2014 of JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEYYATINKARA DATED 18-11-2014 CRIME NO. 1665/2014 OF Nemom Police Station , Thiruvananthapuram** ## **PETITIONER/S:** **SHAJU P, AGED 33 YEARS S/O.PARAMESWARAN, VARUVILAPUTHEN VEEDU, PAMAMCODE, ESTATE (P.O.), THIRUVANANTHAPURAM.** **BY ADVS. SRI.GOPAKUMAR R.THALIYAL SRI.R.B.RAJESH** ## **RESPONDENT/S:** **1 THAMPI, AGED 53 YEARS S/O.RAJU NADAR, VARUVILA PUTHEN VEEDU, PAMAMCODE, EDAYCKODE DESOM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM, PIN 695020. 2 SATHYAN, AGED 55 YEARS S/O.RAJU NADAR, VARUVILA PUTHEN VEEDU, PAMAMCODE, EDAYCKODE DESOM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM, PIN 695020. 3 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. BY ADVS. SMT.AMINA BHANU SRI.ANZAR BASHEER SRI.BABU CHERUKARA SRI.K.S.GIREESAN SRI.P.A.SALIM SRI.SEVI VARGHESE** ## **PP--E C BINEESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 05.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 407 of 2015 2** ## **ORDER** This Criminal M.C. is filed against an order dated 18.11.2014 in C.M.P. No.7917/2014 passed by the Judicial First Class Magistrate Court-I, Neyyattinkara in Crime No.1665/2014 of Nemom Police Station, Thiruvananthapuram District. The petitioner herein is the de facto complainant in Crime No.1665/2014 of Nemom Police Station, Thiruvananthapuram District, registered against the accused/respondents 1 and 2 for offences punishable under Sections 308, 326 r/w 34 of IPC. The respondents 1 and 2 were arrested by the police on 13.11.2014 and remanded to judicial custody. They were enlarged on bail by the Judicial First Class **Crl.MC.No. 407 of 2015 3** Magistrate Court-I, Neyyattinkara as per Annexure-III order dated 18.11.2014. The Court has granted bail to the respondents 1 and 2 without any reason, especially, in a case including the offence punishable under Sections 308 and 326 of IPC. As per Annexure-II medical records, the petitioner has sustained very serious injuries on his head and other parts of the body and he has lost one tooth due to the attack of the respondents 1 and 2. Annexure-III order passed by the court below is without application of mind and in case where the de facto complainant sustained very serious injuries like this; the court below ought not to have granted bail within a short period. It was also stated that respondents 1 and 2 have violated conditions in **Crl.MC.No. 407 of 2015 4** Annexure-II bail order. Respondents 1 and 2, after obtaining bail, threatened the petitioner that he will be done away with. Respondents 1 and 2 are also threatening witnesses in the case stating that if they support the prosecution case, they will have to face dire consequences. So, on the strength of these reasons, the petitioner prays for cancelling the bail granted to respondents 1 and 2, by quashing AnnexureIII order. 2. The main grievance of the petitioner is that respondents 1 and 2 have already granted bail as per Annexure-III order. As per Annexure-III order, the Judicial First Class Magistrate Court-I, Neyyattinkara has granted bail to respondents 1 and 2 on a condition that they shall appear before the **Crl.MC.No. 407 of 2015 5** Investigating Officer on all Mondays between 10 a.m and 12 noon until final report is filed. 3. According to the petitioner, there was no justification in granting bail to respondents 1 and 2 as they have done very grievous nature of offences and also submitted that as per the decision reported in _**Kanwar Singh Meena v. State of Rajasthan [2012 (4) KLT SN 105]**_ the Apex Court has held that as per Section 439(2) of Cr.P.C the High Court or Sessions Court can cancel bail even in cases where the order granting bail suffers very serious infirmities resulting in miscarriage of justice and also cited a ruling reported in _**Puran v. Ramvilas [2001(2) KLT SN 80]**_ the Apex Court has held that the arbitrary or **Crl.MC.No. 407 of 2015 6** wrong exercise of discretion by trial court in granting bail has to be corrected by superior courts. One such ground for cancellation of bail would be where ignoring materials and evidences on record, a perverse order granting bail is passed in a heinous crime and that too without giving any reasons. 4. Now, the only grievance pointed out by the petitioner's counsel is that, in violation of the bail order, the respondents 1 and 2 are threatening the de facto complainant as well as the witnesses in this case. In fact, it is very important to note that the bail was granted by the lower court as per Annexure-III was on 18.11.2014 and so far the respondents 1 and 2 are under bail order. **Crl.MC.No. 407 of 2015 7** 5. The prosecution has further filed a report by stating that though on investigation, respondents 1 and 2 are not engaged in any kind of activities, which have violated the conditions in the bail order of the High Court. It is also submitted that after releasing on bail, there is no complaint or information received against respondents 1 and 2, which they have tried or trying to influence and threaten the witnesses of this case. After releasing on bail, there is no crime or case registered or any complaint received against respondents 1 and 2 in Nemom Police Station. 6. So, on the basis of the report filed by the SHO of Nemom Police Station, as on 09.03.2015 and as on today, they have not committed any crime in the society and **Crl.MC.No. 407 of 2015 8** therefore, I find that the petition filed for cancellation of bail, granted to respondents 1 and 2 vide Annexure-III cannot be cancelled. The petitioner has failed to establish any of the grounds as mentioned in the petition to invoke the power under Section 439(2) CR.P.C. and to cancel the bail. Hence, this petition is only liable to be dismissed. **==> picture [370 x 13] intentionally omitted <==** dismissed. ## **Sd/-** **ANNIE JOHN** **JUDGE** SB/06/04/2019 **Crl.MC.No. 407 of 2015 9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE-I TRUE COPY OF THE FIRST INFORMATION REPORT DATED 14.11.2014 IN CRIME NO.1665/2014 OF NEMOM POLICE STATION.** **ANNEXURE-II TRUE COPY OF THE MEDICAL RECORDS OF THE PETITIONER.** **EXHIBIT-III CERTIFIED COPY OF THE ORDER DATED 18.11.2014 IN C.M.P.NO.7917/2014 PASSED BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE-I, NEYYATTINKARA.** **RESPONDENTS EXTS: NIL** **// TRUE COPY //** **P.A TO JUDGE**