# `IN THE HIGH COURT OF KERALA AT ERNAKULAM`
## `PRESENT`
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THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
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MONDAY, THE 30[TH] DAY OF JANUARY 2023 / 10TH MAGHA, 1944
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## `BAIL APPL. NO. 9949 OF 2022`
(Crime No. 1239/2017 of Kadinamkulam Police)
## `PETITIONER/ACCUSED:`
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VISHNU @ THAMBURU
AGED 23 YEARS
MANAKKATTIL PUTHENVEEDU, NADUVARAM
MUNDANCHIRA, KADINAMKULAM VILLAGE.
THIRUVANANTHAPURAM., PIN - 695303
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BY ADV M.R.SARIN
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## `RESPONDENTS:`
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1STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
PIN - 682031
2STATION HOUSE OFFICER
KADINAMKULAM POLICE STATION,
THIRUVANANTHAPURAM., PIN - 695303
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BY ADV PUBLIC PROSECUTOR
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ADV M P PRASHNATH - PP
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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
30.01.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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B.A No. 9949 of 2022
## **O R D E R**
This is an application filed under Section 438 of the Code of Criminal Procedure seeking anticipatory bail.
2. The petitioner is the sole accused in Crime No. 1239/2017 of Kadinamkulam Police Station, which was registered for the offences punishable under Sections 341, 323, 324, 326 and 304 of the Indian Penal Code and also under Section 75 of the Juvenile Justice Act.
3. The prosecution case is that, on 04.11.2017 at 11.30 a.m., the accused assaulted a 13 year old boy on multiple occasions, i.e., on 04.11.2017 and 05.11.2017 by using a scraper. Later the boy died while undergoing treatment. The petitioner was earlier arrested on 10.11.2017, and he was later released on bail, as per the order passed by the Additional Sessions Court-I, Thiruvananthapuram, in Crl.M.C No.2629/2017. Later, the Investigation Officer moved C.M.P No.415/2022, before the Additional Sessions Court-VI, Thiruvananthapuram, to cancel the bail. The reason for seeking cancellation of bail was that the petitioner got involved in 12 other cases while he was on bail, and the same amounting to a violation of the conditions of the bail.
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## B.A No. 9949 of 2022
4. It is also pointed out that one of the cases in which he was involved was related to assault on one of the witnesses of the crime in which he was granted bail. That was also taken note of while cancelling the order of bail by the learned Additional Sessions Judge. Consequent to the order of cancellation of the bail, the petitioner was arrested on 26.02.2022. Since he is under judicial custody.
5. Even though the petitioner submitted Crl.M.P No. 2680/2022 before the Additional Sessions Court (For the Trial of the Cases Relating to the Atrocities and Sexual Violence against Women and Children), Thiruvananthapuram, where the aforesaid crime is now pending as S.C No. 247/2022, seeking bail, the said application was dismissed as per order dated 08.11.2022. The petitioner submits this application in such circumstances.
6. Sri.M.R Sarin, the learned counsel appearing for the petitioner, contends that, the petitioner was falsely implicated in the subsequent offence, based on which order of cancellation of the bail was passed. It is pointed out that the aforesaid crime was registered on the allegation that the petitioner assaulted one of the witnesses in Crime No.1239/2017 of Kadinamkulam Police Station, which is the subject matter of this case.
7. However, his specific case is that, in connection with the same incident, Crime No.98/2022 was registered against some other
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persons, wherein the injured is the petitioner herein. By placing reliance upon the same, it is contended that infact the petitioner was assaulted by certain persons, including one of the witnesses in Crime No.1239/2017 of Kadinamkulam Police Station. Therefore he contends that taking note of the aforesaid aspect and the long duration of judicial custody of the petitioner since 26.02.2022, an order is to be passed releasing the petitioner on bail.
8. On the other hand, the learned Public Prosecutor would seriously oppose the said contentions. The learned Public Prosecutor specifically brought the attention of this Court to the cases in which he was involved after he was released on bail in this crime. The details of the aforesaid cases are furnished in the order passed by the learned Sessions Judge on 08.11.2022. It is pointed out that all the said offences are very serious in nature and include physical assaults on several persons. Besides the same, one of the victims in the latest crime is the witness in the crime and therefore, the act of the petitioner amounts to interference in the conduct of a fair trial of the case. Therefore, releasing the petitioner on bail may adversely affect the trial of the said case, and hence he seeks to dismiss the application.
9. I have gone through the records and heard the contentions raised from both sides.
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B.A No. 9949 of 2022
10. Even though the learned counsel for the petitioner pointed out that he was falsely implicated, and he also relied on FIR registered in crime No.98/2022 of Kadinamkulam Police Station, the other factors which are highlighted in the order passed by the learned Sessions Judge are against him. It is an undisputed fact that the petitioner is involved in 12 other cases, and all of them were committed after he was released on bail in this case. The details of the said cases are as follows.
- “1. Crime 878/2019 u/s 294(b), 341, 323 IPC.
2. Crime 68/2020 u/s 107 Cr.PC.
3. Crime 469/2020 u/s 341, 323, 324, 427, 506(ii), 308 IPC.
4. Crime 485/2020 u/s 143, 147, 148, 148, 294(b), 341, 323, 324, 427 IPC.
5. Crime 588/2020 u/s 452, 341, 294(b), 323, 324, 506(ii), 308 & 34 IPC.
6. Crime 1400/2020 u/s 341, 294(b), 324, 308 IPC& Section 27 of Arms Act.
7. Crime 1601/2020 u/s 341, 284(b), 506(ii), 457, 395, 427 IPC & Section 3 & 4 of Explosive Substance Act, 1908 & 27 of Arms Act.
8. Crime 1635/2021 u/s 341, 323, 506(1), 392 IPC.
9. Crime 1636/2021 u/s 341, 294(b), 323, 324, 308, 34 IPC & 27 of Arms Act.
10. Kazhakuttom Police Station Crime 994/2018 u/s 341, 294(b). 323, 324, 506(ii), 308 IPC & Section 27 of Arms Act.
11. Mangalapuram Police Station crime 1585/2018 u/s 143, 147, 148, 149, 452, 341, 323, 324, 308, 427 IPC.
12. Neyyattinkara Excise Crime 3/22 u/s 20(b)(ii)(A) of NDPS Act 1985.”
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B.A No. 9949 of 2022
11. On perusal of the same, it is evident that the offences alleged against the petitioner are very serious. The learned counsel for the petitioner placed reliance upon the decision rendered by this Court in **Godson and Another v. State of Kerala** [2022 KHC 672], wherein this Court held that cancellation of bail could not be ordered merely because of the reason that the petitioner was implicated in subsequent offences. The chances of false accusations and other relevant aspects are to be taken into consideration.
12. However, going through the facts and circumstances of this case, it is discernible that the petitioner is involved in several other cases which contain very serious allegations of physical assaults on various persons. Besides the above, one of the victims is one of the witnesses in this crime. It is true that a counter case has been registered, in respect of the incident relating to the aforesaid crime, but, I am of the view that, that by itself cannot be a reason to take a view in favour of the petitioner. As rightly pointed out by the learned Public Prosecutor, the release of the petitioner is likely to have an adverse impact on the smooth conduct of the trial. In such circumstances, I do not find this as a case in which the petitioner is to be released on bail. Evidently, the petitioner has misused the freedom granted to him while releasing him on bail, and therefore,
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I do not find any justifiable reasons to invoke the jurisdiction vested upon this Court.
In such circumstances, this bail application is dismissed.
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Sd/-
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ZIYAD RAHMAN A.A
JUDGE
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rpk
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## B.A No. 9949 of 2022
## `APPENDIX OF BAIL APPL. 9949/2022`
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PETITIONER ANNEXURES
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Annexure A1THE CERTIFIED COPY OF THE ORDER IN CRI MP
NO. 2680/2022 BEFORE THE ADDITIONAL
SESSIONS JUDGE IN THIRUVANTHAPURAM DATED
15-10-2022.
AnnexureA 2THE TRUE COPY OF FIR IN CRIME NO 1239/2017
OF KADINAMKULAM POLICE STATION
Annexure A3THE TRUE COPY OF THE F.I.R IN CRIME NO.
98/2022 OF KADINAMKULAM POLICE STATION
```
