Thomas P.J. @ Johny v. The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945** **BAIL APPL. NO. 1460 OF 2024** **CRIME NO.1337/2023 OF PEROORKADA POLICE STATION, THIRUVANANTHAPURAM AGAINST THE ORDER/JUDGMENT BAIL APPL. 265/2024 OF HIGH COURT OF KERALA** ## **PETITIONER/SOLE ACCUSED:** **THOMAS P.J. @ JOHNY AGED 54 YEARS S/O. JAMES, ROADARIKATHU VEEDU, T.C NO. 4/88, NEAR THANUPILLA JUNCTION, PATTOM, MARAPPALAM, MUTTADA, KOWDIAR VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695004** **BY ADVS. BENCILAL B.S. RINU. S. ASWAN GOPIKA H.H ANUJA B.S. SATHYA VIJAYAKUMAR ARYA L.S.** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REP. THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM, PIN - 682031** **BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28)** ## **OTHER PRESENT:** **ADGP SRI GRASHIOUS KURIAKOSE .SR PP SRI C K SURESH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO.1460 OF 2024** **2** ## **O R D E R** This the second application is filed under Section 439 of the Code of Criminal Procedure by the sole accused in Crime No.1337/2023 of the Peroorkada Police Station, Thiruvananthapuram, registered against him for allegedly committing the offences punishable under Sections 326 & 302 of the Indian Penal Code. The petitioner was arrested on 20.09.2023. 2. The crux of the prosecution case is that: on 17.09.2023 at around 9.15 p.m, when the informant/deceased (Jishnu) questioned the accused regarding his relationship with his mother-in-law, the accused attacked the informant with a chopper and cut him on the right side of his chest, causing deep and grievous to the informant. While the informant was injuries undergoing treatment in the Medical College Hospital, Thiruvananthapuram, he succumbed to the injuries on **BAIL APPL. NO.1460 OF 2024** **3** 25.09.2023 at around 10.25 p.m. Thus, the accused has committed the above offences. 3. Heard Sri.Bencilal B.S., the learned counsel appearing for the petitioner and Sri.C.K.Suresh, the learned Special Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. The petitioner's earlier application was dismissed by this Court by Annexure-5 order on 24.01.2024. Thereafter, the petitioner moved the Court of Session, Thiruvananthapuram by filing Crl.M.P.No.1750/2024. The said application was dismissed by Annexure-6 order with an observation that the chance of commencement of trial in the case was very bleak since the Forensic science laboratory report was not received. Therefore, the petitioner has filed the present application. As the petitioner has been in judicial custody for the last 162 days, the petitioner may be released on bail. 5. The learned Public Prosecutor opposed the **BAIL APPL. NO.1460 OF 2024** **4** application. He contended that this Court has considered the matter in detail and passed Annexure 5 order. Immediately after the application was dismissed, the petitioner moved the Court of Session and filed a fresh application which was also dismissed by Annexure 6 order. Now, the petitioner has approached this Court again for a similar relief. There is no change of circumstance after the passing of Annexure 5 order. Merely because the petitioner has been in judicial custody for the last 162 days, the same is inconsequential and does not confer any right on the petitioner in view of the law laid by the Hon'ble Supreme Court in **Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another** [AIR 2004 SC 1866]. The application is meritless and is only to be dismissed. 6. The prosecution allegation is that on 17.09.2023 the petitioner inflicted a deep incised wound on the chest of the informant/deceased. The deceased was under treatment in the Medical College Hospital, Thiruvananthapuram from 17.09.2023 till his death on 25.09.2023. It was the deceased **BAIL APPL. NO.1460 OF 2024** **5** who gave the information to the police that it was the petitioner who inflicted the deep incised wound on his chest. The postmortem certificate also reveals the fatal injuries suffered by the deceased. This Court, by Annexure 5 order, after a threadbare analysis the facts, the materials placed on record, and the rival submissions made across the Bar had dismissed the application on the ground that the petitioner cannot be released on bail especially since it would have the deleterious impact on the society. Notwithstanding the dismissal of the application by Annexure 5 order, the petitioner had approached the Court of Session and filed a fresh application under Section 439 of the Act which was also dismissed by Annexure 6 order. Thereafter, the petitioner has now approached this Court. 7. It cannot be gainsaid that the exceptional power to grant bail under Section 439 of the Code is wide-ranging and discretionary, and the power is to be exercised judiciously. 8. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.** [(2010) 14 SCC 496], the Honourable Supreme **BAIL APPL. NO.1460 OF 2024** **6** ## 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.” 9. in **Chandra Sarkar v.** Subsequently, **Kalyan Rajesh Ranjan Alias Pappu Yadav and another** [(2005) 2 SCC 42], 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 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 **BAIL APPL. NO.1460 OF 2024** **7** 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. ## 10. 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 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.” **BAIL APPL. NO.1460 OF 2024** **8** 11. 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.” 12. After bestowing my anxious consideration of the facts, materials placed on record, the rival submissions made across the Bar and the proclamation of the law in the aforecited precedents, the findings rendered by this Court and the Court of Session in Annexures 5 & 6 orders and on **BAIL APPL. NO.1460 OF 2024** **9** comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner and the prima facie finding that the offences to be attracted, the potential severity of the punishment that is likely to be imposed on the petitioner, and the reasonable apprehension projected by the prosecution that the petitioner may tamper with the evidence, notwithstanding the fact that the petitioner has been in judicial custody for the last 162 days, I am not convinced or satisfied that the petitioner is to be released on bail, as it would have a deleterious impact on the society. Hence, I hold that the petitioner would have to face the proceedings as an under trial prisoner. Therefore, I hold that the application is meritless and is only liable to be rejected. Resultantly, the application is dismissed. **Sd/-** ## **C.S.DIAS** **JUDGE** **shg**