Vishnu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 10[TH] DAY OF DECEMBER 2021 / 19TH AGRAHAYANA, 1943** **CRL.MC NO. 4678 OF 2021** **CRMP 2/2021 IN SC 32/2020 OF ADDITIONAL SESSIONS COURT,** ## **IRINJALAKUDA** ## **PETITIONER/SOLE ACCUSED:** **VISHNU AGED 26 YEARS S/O. KANNAN, PATTATHIL HOUSE, AZHAKM DESOM, KODAKARA VILLAGE, CHALAKUDY TALUK, THRISSUR DISTRICT,PIN-680 684 BY ADV N.L.BITTO** ## **RESPONDENT/STATE:** **STATE OF KERALA** **REP. BY THE SUB INSPECTOR OF POLICE, KODAKARA POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-682 031** **SR.PP - SRI. RENJITH T.R.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16.11.2021, THE COURT ON 10.12.2021 PASSED THE FOLLOWING:** Crl.M.C.4678/21 2 ## O R D E R Petitioner is the accused in S.C.No.32/2020 on the file of the Additional Sessions Court, Irinjalakuda, which was the outcome of the final report in crime 363/2019 of Kodakara police station where offence under Sections 506 and 307 of the IPC is alleged against him. On 02/07/2020 by Annexure-I order he was granted bail by the Sessions Court imposing the following conditions: - “(1) He shall not enter Kodakara police station premises till the trial is over; - (2)He shall not intimidate, threaten defacto complainant, witnesses; - (3)He shall execute a bond with 2 sureties each, for a sum of Rs.1,00,000/- each for the like sum; and - (4)One of the sureties shall be his parents/close relatives.” 2. Later the Public Prosecutor filed a petition under Section 439(2) before the Court contending that he has violated the liberty granted to him. Even though the Sub Divisional Magistrate has initiated proceedings under Section 107 of the Cr.P.C., he did not respond or appear before the Sub Divisional Magistrate. Secondly, on 27.12.2020 he indulged himself in criminal activities following which crime 1616 of 2020 was registered in Kodakara police station for offence under Sections 294(b) and 506(ii) IPC for threatening his sister Lakshmi and mother and that his cronies have involved in crime 1565/2020 and crime 1610/2020 of Kodakara police Crl.M.C.4678/21 3 station. The petitioner filed an objection stating that he is innocent in crime 1616/2020, that he is prepared to produce the defacto complainant, his elder sister, before Court, that he is not an accused in crime 1565/2020 and crime 1610/2020 of Kodakara police station. After hearing counsel on both sides, by the impugned order Annexure-V, the learned Additional Sessions Judge cancelled the bail and aggrieved by the same, the petitioner, who is now in custody, has moved this Court under Section 482 of the Cr.P.C. 3. I heard the learned counsel for the petitioner and also the learned Senior Public Prosecutor. 4. According to the learned counsel for the petitioner, the learned Sessions Judge went wrong in cancelling the bail. In the case in which his sister had allegedly launched the prosecution, he filed an affidavit of the sister before the trial court disowning any statement having been given; he is not the accused in the other two crimes and that crime No.134/2021, which has been relied on by the learned Sessions Judge, is not shown in the Annexure-II application for cancelling the bail. In that case he was not heard in advance. The prosecution has no case that he had violated any of the conditions imposed by the Court. He was granted bail after sustaining Crl.M.C.4678/21 4 serious injuries while in the custody of jail authorities and therefore the said order is liable to be interfered with. 5. The learned counsel for the petitioner also relied on the decisions reported in **Ram Chandra Meena v. High Court of Rajasthan** **[2018 SC 1401]** and **Bhagirathsingh v. State of Gujarat [AIR 1984 SC 372]** . In fact these two decisions cannot support the case of the petitioner. 6. The learned Public Prosecutor strongly opposed the application. According to him, the nature and character of the petitioner have to be considered while interfering with the order. He also highlighted three aspects that he did not co-operate with Section 107 proceedings, that he had a large number of cases to his credit and therefore he is a person susceptible to indulge in commission of such crimes in close frequency and therefore, according to him, the order is not liable to be interfered with. He also highlighted the long list of 26 cases in which the petitioner is involved. 7. It is the settled proposition of law, as held by the Hon'ble Supreme Court in **CBI v. Vijay Sai Reddy [AIR 2013 SC 2216]** that the criteria for cancellation of bail under Section 437(5) or 439(2) of the Cr.P.C. are as follows: (1)Misuse of liberty by the accused by indulging in similar criminal Crl.M.C.4678/21 5 activities; - (2)Interference with the course of investigation; (3)Attempt to tamper with evidence of witnesses; - (4)Threatening witnesses indulging in similar activities which would hamper smooth investigation of the prosecution; - (5)Likelihood of fleeing away of the accused to another country; - (6)Attempt to make the accused scarce by going underground, becoming non-available to the investigating agency; (7)Attempt to place himself beyond the reach of his surety; - (8)Attempt to kill important witnesses or the relatives or give threats to them etc. 8. Cancellation of bail is something interfering with the personal liberty of a person. It involves review of the decision already made granting bail to the person. It is stated that the power of exercising cancellation of the bail shall be sparingly used. 9. Here I have already enumerated the conditions imposed by the learned Additional Sessions Judge in Annexure-I order. The prosecution has no case that any of the condition has been violated. At first it was stipulated that he shall not enter Kodakara police station limits, but that condition was later lifted on his application. The prosecution has no case that he has intimidated or threatened the defacto complainant or any other witness and therefore the conditions in Annexure-I order have not been Crl.M.C.4678/21 6 tampered with. 10. The other aspects highlighted by the prosecution is the initiation of Section 107 Cr.P.C. proceedings against the petitioner and that he did not respond to the notice issued by the Sub Divisional Magistrate. Secondly, that he is an accused in crime 1616 of 2020 of Kodakara police station in which his sister is the defacto complainant and thirdly his cronies are the accused in two crimes. In the objection he has not touched the ground regarding Section 107 Cr.P.C. proceedings. He has stated that his sister has disowned launching of prosecution as crime 1616 of 2020 and he stated that he is not an accused in the other two crimes. 11. No doubt, he has not associated himself with the Section 107 Cr.P.C. proceedings. Even though the Sub Divisional Magistrate has sent a notice to him, it is not known as to what is the reason for not responding to the notice issued. In the other crime his sister has filed an affidavit stating that she did not prefer any complaint against the petitioner. The prosecution has no case that he is an accused in the other two crimes of Kodakara police station. As noticed, he is shown as one of the accused in crime 134 of 2021 Kodakara police station, which is Annexure-IV. This was committed after the initiation of the proceedings for cancellation of bail and after filing the Annexure-II application. Therefore, the Public Crl.M.C.4678/21 7 Prosecutor had no occasion to mention this in his petition. However, the learned Sessions Judge has considered this aspect also, while cancelling the bail. 12. But, after hearing counsel on both sides, I am of the opinion that, even though generally it can be stated that he is guilty of violating the liberty granted to him by indulging in at least one crime, technically speaking it cannot be said that he has violated the terms of bail granted to him. Therefore, the learned Sessions Judge should not have cancelled the bail. 13. Secondly, during this grim pandemic period, the policy of the courts and the Government is to ease the crowd in jails; therefore, only if overwhelming circumstances are made out, undertrial prisoners need be retained in jails. I have no doubt that if proper conditions were imposed while granting bail, it would have been easy to proceed against a person like the petitioner who is susceptible to recidivism. But here, as mentioned earlier, he cannot be held guilty of violating any of the conditions imposed by the Court, though generally it can be stated that he has violated the liberty granted to him. Therefore, I feel that the order is liable to be interfered with and he shall be released on bail on the following conditions: i. The petitioner shall execute a bond for Rs.1,00,000/- (Rupees Crl.M.C.4678/21 8 One lakh only) with two solvent sureties each for the like amount to the satisfaction of the trial court; one of the sureties shall be a near relative; - ii. He shall not involve in any crime during the period on bail or he shall not involve in any objectionable activity; - iii.He shall appear before the Sub Divisional Magistrate and cooperate with Section 107 Cr.P.C. proceedings within two weeks from the date of release; - iv. He shall not enter Kodakara police station limits except with the leave of the trial court; - v. He shall surrender his passport and shall not leave the country without the leave of the trial court; - vi. He shall report before the Dy.S.P., Irinjalakuda every Saturday between 8:00 and 11:00 a.m. until the termination of all pending criminal cases against him. - vii. He shall strictly abide the various guidelines issued by the State and Central Governments with respect to keeping of social distancing in the wake of Covid 19 pandemic; - viii. If any of the above conditions is violated by the petitioner, the jurisdictional court will be at liberty to cancel the bail in accordance with law. ## The Criminal Miscellaneous Case is allowed as above. Sd/- **K.HARIPAL JUDGE** okb/9.12 //True copy// P.S. to Judge Crl.M.C.4678/21 9 ## **APPENDIX OF CRL.MC 4678/2021** |**PETITIONER ANNEXURE**|| |---|---| |**Annexure I**|**A TRUE COPY OF THE BAIL ORDER IN CRL.MP.44 OF**| ||**2020 IN SC 32 OF 2020 OF THE ADDITIONAL**| ||**SESSIONS JUDGE IRINJALAKUDA DATED 2.7.2020**| |**Annexure II**|**A TRUE COPY OF THE CRL.M.P.2 OF 2020 IN SC 32**| ||**OF 2020 BEFORE THE ADDL.SESSION COURT,**| ||**IRINJALAKUDA DATED 1.1.2021**| |**Annexure III**|**A TRUE COPY OF THE COUNTER FILED BY THE**| ||**PETITIONER IN CRL MP 2 OF 2021 IN SC 32 OF**| ||**2020 BEFORE THE ADDL.SESSIONS COURT,**| ||**IRINJALAKUDA DATED 5.1.2020**| |**Annexure IV**|**A TRUE COPY OF THE FIR IN CRIME NO.134 F 20-**| ||**21 OF KODAKARA POLICE STATION DATED 28.3.2021**| |**Annexure V**|**A TRUE COPY OF THE ORDER PASSED IN CRL.MP 2**| ||**OF 2021 IN SC 32 OF 2020 BEFORE THE ADDL.**| ||**SESSIONS COURT, IRINJALAKUDA DATED 1.7.2021**|