Vinod v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** ## **CRL.MC.NO.6473 OF 2019(H)** **CMP 4158/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, NEYYATINKARA** **CRIME NO.179/2017 OF NEYYATTINKARA POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **VINOD, S/O.MOSSA, AGED 31 YEARS, RESIDING AT THALAKONAM THALNIRA PUTHEN VEEDU, THALAKKONAM, VALIKODE DESOM, OTTASEKHARAMANGALAM VILLAGE, THIRUVANANTHAPURAM -695125.** **BY ADVS. SRI.PIRAPPANCODE V.S.SUDHIR, SMT.A.MEGHA** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL, HIGH COURT OF KERALA, ERNAKULAM. (DEPUTY SUPERINTENDENT OF POLICE, DISTRICT CRIME BRANCH, THIRUVANANTHAPURAM RURAL).** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11-11-2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -------------------------------------Crl.M.C. No. 6473 of 2019 -------------------------------------Dated this the 11[th] day of November, 2019 ## O R D E R The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: _“Allow this Crl.M.C., setting aside Annexure VIII order dated 6.9.2019 of the Judicial First Class Magistrate's Court-I, Neyyattinkara, in C.M.P. No.4158/2019 in Crime No.179/2019 of Neyyattinkara Police Station, and thereby dismiss Annexure VI report dated 5.8.2019 of the Deputy Superintendent of Police, District Crime Branch, Thiruvananthapuram Rural, seeking cancellation of the bail of the petitioner.”_ 2. Heard Sri.Pirappancode V.S.Sudheer, learned Advocate instructed by Ms.A.Megha, learned counsel appearing for the petitioner accused and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent State. 3. The petitioner herein has been arrayed as the sole accused in the instant Crime No.179/2019 of Neyyattinkara Police Station, which has been registered for offences punishable under Secs.465, 468, 471, 485 & 420 of the IPC. The petitioner was arrested and remanded on 15.5.2019 in relation to that case and his first plea for regular bail was rejected by this Court and later Crl.M.C. No. 6473 of 2019 ..3. this Court as per Anx.I order dated 12.7.2019 in B.A. No. 4726/2019 has granted regular bail to the petitioner in relation to said crime subject to certain conditions. One of the conditions as per Anx.I is that, _the petitioner shall not intimidate or attempt to influence the witnesses, nor shall he tamper with the evidence_ . The petitioner has already been released on regular bail pursuant to Anx.I order in relation to said case. It appears that the case in Anx.I has already been entrusted to Crime Branch for investigation. 4. It appears that the petitioner has made some allegations that during the questioning process in the abovesaid crime, he was subjected to physical violence by the police authorities and he had also spoken about that before the competent court below concerned on 22.5.2019 and according to the petitioner the said case of physical violence inflicted on him by the police authorities are evident from Anxs.II & III medical records issued by the General Hospital, Neyyattinkara. According to the petitioner, his complaint regarding the suffering of physical violence at the hands of the police has not been redressed by the police authorities concerned and therefore he Crl.M.C. No. 6473 of 2019 ..4. was constrained to file Anx.V complaint/petition before the Kerala Human Rights Commission on 25.7.2019. The petitioner would further allege that, as a counter blast to the said complaint initiated by the petitioner against the police authorities, now he and his mother have been falsely implicated in Crime No.556/2019 of Neyyattinkara Police Station, for offences punishable under Secs.294(b), 506(i), 509 & 34 of the IPC and alleging that the petitioner and his mother had shown immoral gestures and gesticulations and had abused the wife and mother of one of the witnesses of Mahazar in relation to the crime referred to in Anx.I bail order. On the basis of said alleged involvement of the petitioner in the latter Crime No. 556/2019 of Neyyattinkara Police Station, the police authorities had filed Anx. IV report before the jurisdictional Magistrate Court concerned praying that the petitioner's bail granted as per Anx.I order be cancelled, by his act of intimidating the relatives of the witness, he had violated the bail conditions, etc. 5. The Judicial First Class Magistrate Court-I, Neyyattinkara, as per the impugned Anx.VIII order rendered on 6.9.2019 on Crl.M.P. Crl.M.C. No. 6473 of 2019 ..5. No. 4158/2019 filed by the Investigating Officer in Crime No.179/2017 of Neyyattinkara Police Station has now allowed the said plea of the prosecution, and has cancelled the bail granted to the petitioner pursuant to Anx. I order. It is this bail cancellation order at Anx.VIII is under challenge in this case. 6. This Court while admitting the Crl.M.C., has already granted stay of the operation of the said impugned Anx.VIII bail cancellation order. After hearing the counsel for the petitioner accused and the learned Prosecutor appearing for the respondent State and after anxious consideration of the rival pleas, it has to be borne in mind that it is by now too well establish to require the citation to a judicial authority that the cancellation of bail granted to an accused is indeed a harsh order, because it takes away the liberty of the very individual protected by the competent criminal court and it is not to be lightly resorted to. 7. References in this connection made in the decision of the Apex Court as in _**Manjit Prakash & Others v. Shobha Devi & Another [AIR 2008 SC 3032]**_ wherein it has been held that the Crl.M.C. No. 6473 of 2019 ..6. bail granted under Sec.437 or Sec.439 of the Cr.P.C. could be cancelled where - _i. the accused misuses his liberty by indulging in similar criminal activity_ - _ii. interferes with the course of investigation iii. attempts to tamper with evidence or witnesses_ - _iv. threatens witnesses or indulges in similar activities which would hamper smooth investigation_ - _v. there is likelihood of his fleein to another country_ - _vi. attempts to make himself scarce by going underground or becoming unavailable to the investigating agency_ - _vii.attempts to place himself beyond the reach of his surety, etc._ 8. However, the crucial aspect of the matter which has to be borne in mind by the competent criminal court concerned is that, bail granted to an accused is a precious right conferred on the accused regarding his liberty, and therefore the cancellation of bail is a very harsh process and cannot to be lightly resorted to and should be considered for cancellation only if there are very strong and cogent grounds are made in support thereof. True the allegations raised against the petitioner in the former crime (referred to in Anx.I) are serious, inasmuch as it involves the allegation that the petitioner had fabricated and forged his law degree certificate. Taking the gravity of the offence, this Court had even initially refused to allow the plea of Crl.M.C. No. 6473 of 2019 ..7. the petitioner for grant of regular bail after his remand. It is only later after the progress of investigation and after taking into account various crucial aspects of the matter and after hearing the prosecution agency, this Court had passed Anx.I order on 12.7.2019 granting the order of release of the petitioner on regular bail subject to conditions therein. True there is condition in Anx.I that _the petitioner shall not intimidate or attempt to influence the witnesses, nor shall he tamper with the evidence_ . After hearing both sides and after careful evaluation of the facts and circumstances of the case, this Court feels that the complaint made by the petitioner against the police authorities that he has been subjected to physical violence during the interrogation in relation to the former crime, etc, and also the complaint made by the petitioner as per Anx.V before the Kerala Human Rights Commission, which is a high power commission, are all aspects which have to be duly taken to account by this Court while adjudging the bonafides of the act of the prosecution. 9. After hearing both sides and only for the limited purpose of considering the issues raised in this petition Crl.M.C. No. 6473 of 2019 **==> picture [17 x 9] intentionally omitted <==** regarding the validity or otherwise the cancellation of bail, this Court is inclined to take the view that the allegations raised against the petitioner and his mother in the latter Crime No.556/2019 of Neyyattinkara Police Station, appears to be quite flimsy. Only for the limited purpose of the issues of cancellation of bail, this Court is inclined to take the _prima facie_ view that the allegations that the petitioner and his mother had shown immoral gesticulations to the mother and wife of one of the mahazar witnesses, etc, appears to be farfetched and would have been made possibly to raise a ground for cancellation of bail. When the petitioner has already been granted bail and he has given complaint against the police authorities before the Kerala Human Rights Commission, etc, it defies common sense and logic that the petitioner and his mother would have gone to the extent of showing immoral gesticulations to the mother and wife of the one of the mahazar witnesses in the former crime. This Court is not at all impressed with the manner in which the police has raised such allegations so casually and when that is the position, the learned Magistrate should have very guardedly exercised the discretion as the Crl.M.C. No. 6473 of 2019 **==> picture [17 x 9] intentionally omitted <==** issue of cancellation of bail involves infliction of extremely grave adverse consequences on the precious rights and liberties of an accused. Hence for the purpose of this petition, this Court is inclined to take the view that the cancellation of bail as per the impugned Anx.VIII order is not based on solid and cogent grounds and the said course of cancellation has been resorted to very lightly, which according to this Court is illegal and ultra vires. The abovesaid observations made by this Court regarding the registration of the latter crime is only for the limited purpose of this petition, and all issues that may be raised in relation to other appropriate proceedings in relation to said latter crime will have to decided independently and untrammelled and uninfluenced by way of any of the observations and findings made by this Court in this order. Accordingly the impugned Anx.VIII bail cancellation order will stand set aside and the bail granted to the petitioner as per Anx.I order will stand revived and restored. However the petitioner would ensure that he should faithfully comply with all the bail conditions, so that unnecessary controversies are avoided. 10. The police authorities should also make sure that they Crl.M.C. No. 6473 of 2019 ..10. should focus their energies with all meticulousness and precision in the investigation of the crime and merely because the petitioner has raised certain complaints against the police that they have inflicted on him physical violence, etc, is not a matter which would result in any further unnecessary incidents. The Director General of Prosecution will forward a copy of this order to the State Police Chief concerned, as well as to the Head of the State Crime Branch, for necessary information. With these observations and directions the above Criminal Miscellaneous Case will stand disposed of. **==> picture [29 x 14] intentionally omitted <==** ALEXANDER THOMAS, JUDGE MMG ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **TRUE COPY OF THE ORDER DATED 12.07.2019 IN B.A.NO.4726/2019 OF THIS HON'BLE COURT.** **ANNEXURE II** **TRUE COPY OF THE CERTIFICATE OF EXAMINATION BY THE MEDICAL OFFICER, GENERAL HOSPITAL, NEYYATTINKARA.** **ANNEXURE III TRUE COPY OF THE CASUALTY OUTPATIENT RECORD, PERTAINING TO THE PETITIONER, OF THE GENERAL HOSPITAL, NEYYATTINKARA.** **ANNEXURE IV TRUE COPY OF THE FIRST INFORMATION REPORT ALONG WITH THE FIRST INFORMATION STATEMENT IN CRIME NO.556/2019 OF ARYANCODE POLICE STATION.** **ANNEXURE V TRUE COPY OF THE COMPLAINT GIVEN BY THE MOTHER OF PETITIONER BEFORE THE KERALA HUMAN RIGHTS COMMISSION ON 25.07.2019.** **ANNEXURE VI TRUE COPY OF THE REPORT DATED 05.08.2019 GIVEN BY THE DEPUTY SUPERINTENDENT OF POLICE, DISTRICT CRIME BRANCH, THIRUVANANTHAPURAM RURAL.** **ANNEXURE VII TRUE COPY OF THE OBJECTION TO ANNEXURE V REPORT, FILED BY THE RESPONDENT BEFORE THE COURT BELOW.** **ANNEXURE VIII THE CERTIFIED COPY OF THE ORDER DATED 06.09.2019 OF THE JUDICIAL 1ST CLASS MAGISTRATE COURT-I, NEYYATTINKARA IN C.M.P.4158/2019 IN CRIME NO.179/2019 OF NEYYATTINKARA POLICE STATION.**