Kerala High Court
Nibin Shaji vs State Of Kerala on 4 December, 2019
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941
Bail Appl..No.7660 OF 2019
CRIME NO.1094/2019 OF KUMARAKOM POLICE STATION, KOTTAYAM
PETITIONER/ACCUSED NO.2:
NIBIN SHAJI,
AGED 26 YEARS
S/O SHAJI P.D, PUTHENPARAMBIL HOUSE,
KUMARAKOM P.O., KOTTAYAM DISTRICT
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.V.VINAY
SRI.D.FEROZE
SRI.K.ANAND (A-1921)
RESPONDENTS/STATE:
1 STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682 031.
(CRIME NO 1094/2019 OF KUMARAKOM POLICE STATION,
KOTTAYAM DISTRICT)
2 STATION HOUSE OFFICER,
KUMARAKOM POLICE STATION,
KOTTAYAM DISTRICT-686 563, (CRIME NO 1094/2019 OF
KUMARAKOM POLICE STATION, KOTTAYAM DISTRICT).
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.12.2019, ALONG WITH Bail Appl..7665/2019, THE COURT ON THE SAME
DAY PASSED THE FOLLOWING:
B.A Nos.7660 & 7665 of 2019
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 04TH DAY OF DECEMBER 2019 / 13TH AGRAHAYANA, 1941
Bail Appl..No.7665 OF 2019
CRIME NO.1094/2019 OF KUMARAKOM POLICE STATION, KOTTAYAM
PETITIONER/ACCUSED NO.6:
NISHANTH.N.A
AGED 31 YEARS
S/O.APPUKUTTAN N.R., NEDUMPARAMBIL HOUSE,
KUMARAKOM P.O., KOTTAYAM TALUK, KOTTAYAM-686563.
BY ADV. SRI.M.K.CHANDRA MOHANDAS
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
2 STATION HOUSE OFFICER,
(SHO), KUMARAKOM POLICE STATION, KUMARAKOM P.O.,
KOTTAYAM DISTRICT-686563.
SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
04.12.2019, ALONG WITH Bail Appl..7660/2019, THE COURT ON THE
SAME DAY PASSED THE FOLLOWING:
B.A Nos.7660 & 7665 of 2019
3
ALEXANDER THOMAS, J.
===========================
B.A Nos.7660 & 7665 of 2019
===========================
Dated this the 04th day of December, 2019
ORDER
The sole applicant in B.A.No.7660/2019 and the sole applicant in B.A.No.7665/2019 have been arrayed as accused Nos.2 & 6 respectively among the six accused in the instant Crime No.1094/2019 of Kumarakom Police Station, Kottayam, registered for offences punishable under Secs.143, 147, 148, 149, 323, 324, 452, 392, 308 and 120B of the Indian Penal Code. The crime has been registered on the basis of the First Information Statement given by the de facto complainant on 06.10.2019 at about 11 p.m. (the crime registered on the same day at 11.41 p.m.) in respect of the alleged incident which happened on the same day (06.10.2019) at about 5.30 p.m. in the evening.
2. The prosecution case in short is that the wife of A-6 (applicant in B.A.No.7665/2019) was earlier working as a Guest Lecturer in the Sree Narayana College, Kumarakom and her service was B.A Nos.7660 & 7665 of 2019 4 terminated upon the expiry of the contract and A-6 had entertained an apprehension that the de facto complainant in this case, who is working as a Clerk in the said service of the said college management, was actually behind the termination of her service and out of the said animosity, A-6 has a conspiracy with accused Nos.1 to 5 and pursuant to the said conspiracy, accused Nos.1 to 5 had criminally trespassed into the house of the de facto complainant on 06.10.2019 at about 5.45 p.m. and had assaulted the de facto complainant, his wife, mother and a 2 ½ year old child. That A-1 had assaulted the de facto complainant on his shoulder by using a plastic chair and when the de facto complainant had fell down, A-1 had taken a knife and inflicted injuries on his forehead. A-1 had beat and stamped the de facto complainant by using his hands. A-3 had lifted the child aged 2 ½ years and thrown the child away. A-4 & A-5 had assaulted the wife and mother of the de facto complainant using chair. Besides, A-5 had forcibly pulled down the gold chain of the de facto complainant and robbed the same which weighed 3 sovereigns and thereby all the accused persons have committed the abovesaid offences.
3. Sri.S.Rajeev, learned counsel appearing for A-2 would submit that a mere reading of the First Information Statement would B.A Nos.7660 & 7665 of 2019 5 make it clear that A-2 has not been named in the FIS by the de facto complainant and further that no cogent materials have been collected by the Investigating Agency, so as to identify A-2 as an accused in the instant case. Further that, the version of the police that the instant FIS has been recorded on 06.10.2019 at about 11 p.m. and that the FIR was so registered on the same day at 11.41 p.m., etc. are not tenable for the simple reason that the records would make it clear that the FIR was actually transmitted and had reached the office of the Judicial First Class Magistrate's Court-III, Kottayam only on 09.10.2019 and that the said delayed transmit of the FIR is the blatant violation of the provisions contained in Sec.157 (1) of the Cr.P.C. Further that, the truth of the matter is that the FIR and the FIS has been actually prepared after long delay on the basis of after thought and fabrication and that the names of some of the persons have been included in the FIS with detailed precision and the fact that the names and the nature of the activities done by some of the accused persons, as alleged in the FIS has been made with such precision would also clearly indicate that the description in the FIS has been made on a day subsequently to 06.10.2019 and immediately prior to 09.10.2019. Therefore that the FIS and the FIR are the products of fabrication and the versions therein B.A Nos.7660 & 7665 of 2019 6 cannot be taken at its face value and it lacks credibility. Whereas, Sri.M.K.Chandramohan Das, learned counsel appearing for A-6 would submit that even according to the version of the de facto complainant in the FIS and the other prosecution materials, the involvement of A-6 in the crime is not in any manner mentioned or established and that A-6 has been implicated in the instant crime, only because A-4 happens to be the brother of A-6 and that there are no cogent materials collected by the Investigating Agency, so as to implicate the petitioner for the instant offence. Accordingly, the learned advocates who are appearing for their respective parties (A-2 & A-6) would submit that this Court may grant anticipatory bail to their parties, subject to any stringent conditions.
4. The learned Public Prosecutor has seriously opposed the grant of anticipatory bail and has pointed out that some of the accused persons, including A-2 & A-6 could not be apprehended so far, as they had absconded. Further it is pointed out that immediately after the incident, the de facto complainant was admitted in the hospital, which would be corroborated by hospital records and the medical records would clearly show that the de facto complainant has sustained very serious injuries by way of incised wounds, which are three in number, one of which is 2.5 x 0.5 cm on the front scalp, 2.5 x 1 cm on the front B.A Nos.7660 & 7665 of 2019 7 scalp and 2.5 x 1 cm contusion and another coming to 2.5 x 1 c.m. and that contusions of 3 x 2cm on the right arm and abrasions of 2 x 1cm of the right arm has also been noted. Further that, even some of the details that could be immediately recollected and furnished by the de facto complainant has been given by him as recorded in the medical records by the Doctor. It is further pointed out by the learned Prosecutor that the investigation has revealed that at the time of the occurrence of the crime, some of the accused persons had yelled out to the de facto complainant that they have come there on the quotation of A-6 and another person. Further that, investigation has also revealed that A-4 (who is the brother of A-6) has immediately contacted A-6 immediately after the incident and these aspects and that the call data records would show that A-4 had called A-6 by mobile cell at 7.41 p.m., 8.45 p.m. and 9.20 p.m. on the day of the incident, etc. Further that the wife of A-6 was earlier employed as a guest lecturer in the S.N.College, Kumarakom and her service is terminated and A-6 was having a serious apprehension that his efforts to get the service of his wife extended in the college service could not be made because of the intervention of the de facto complainant, who is working as a Clerk in the administrative section of the said college. Further, the statement taken from the B.A Nos.7660 & 7665 of 2019 8 Principal of the College has revealed that those altercations between A-6 and de facto complainant, even before A-6's wife was terminated from the service of the college. Still further it is pointed out by the learned Prosecutor that it is true that the de facto complainant has not named A-2 in the FIS and it is only natural that the de facto complainant was not able to give all the details of the incident in the shock and awe that is sustained due to the serious assault that he had received and that subsequently on 11.10.2019, an additional statement has been recorded from him by the police under Sec.161 of the Cr.P.C, wherein he has stated that on his enquiries, he could later recognize the identity of some of the accused including A-2 from his facebook profile and on this basis, he has named A-2 as one of the persons, who has involved in the incident, in relation to the abovesaid crime and it is on this account that, A-2 has been named as one of the accused in this case. The learned Prosecutor would point out that so far some of the accused persons could not be apprehended and the allegations disclosed in this case are quite serious and grave and more particularly, as the de facto complainant had sustained serious incised wounds and that the custodial interrogation of the petitioners is very necessary for the progress of the investigation. It is also pointed out by the prosecution B.A Nos.7660 & 7665 of 2019 9 that accused Nos.1 to 3 are history sheeters, who are arrayed as accused in crimes.
5. After hearing both sides and after careful evaluation of the facts and circumstances of this case, this Court is not in a position to accept the contentions of the petitioners that as of now, there are no materials to in any manner implicate them in the instant crime. None of the accused persons have been apprehended. The incised injuries sustained by the de facto complainant are quite serious. This Court is not now equipped with any objective facts and attendant circumstances to overrule the abovesaid considered stand of the Investigating Officer that the custodial interrogation of the petitioners are necessary. Suffice to say that this Court is constrained to take the view that this is not a fit case in the matter of exercise of discretion for the grant of anticipatory bail in terms of Sec.438 of the Cr.P.C.
6. The learned Advocates appearing for the petitioners (A-2 & A-6) would then submit that their respective parties would immediately surrender before the Investigating Officer concerned, so that their bail applications filed under Sec.437 of the Cr.P.C would be considered and decided by the learned Magistrate on the same day of their production and after affording opportunity of hearing to both sides, etc. and that B.A Nos.7660 & 7665 of 2019 10 this Court may pass necessary orders in that regard. The prosecution also does not appear to any serious objection to the such course of action.
7. Taking note of the said voluntary submission made on behalf of the petitioners, the following directions and orders are passed:
(i) Petitioners will immediately surrender before the Investigating Officer (I.O) concerned, in relation to the abovesaid crime for interrogation purposes, without any further delay, at any rate by 9a.m. on any day on or before 24.12.2019 or within such time limit that may be extended by the I.O as he deems fit and proper.
(ii) Petitioners will fully co-operate with the Investigating Officer in the interrogation process.
(iii) After completing the above interrogation process, the Investigating Officer will produce the petitioners before the jurisdictional Magistrate's Court concerned in relation to this case. Thereupon, the learned Magistrate will consider and pass orders on the bail application of the petitioners, on the same day of their production, after affording opportunity of being heard to the petitioners' counsel and the learned Public Prosecutor and after taking due note of the relevant facts and attendant circumstances of this case.
8. It is made clear that the abovesaid directions have been issued on the basis of the voluntary submission made by the petitioners and it is fully within the province of the learned Magistrate to consider independently the merits of the plea of the petitioners for grant of bail. B.A Nos.7660 & 7665 of 2019 11 The applications for pre-arrest bail fails and the same will stand dismissed.
Sd/-
ALEXANDER THOMAS JUDGE vgd