IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 Bail Appl..No. 573 of 2010 CRIME NO.16 OF 2010 OF KOTHAMANGALAM POLICE STATION PETITIONER: ACCUSED NO.1 -------------------- TOMY NATHEW, AGED 52 , S/O.MATHAI, ARAMBANKUDIYIL HOUSE, KEERAMBARA, KOTHAMANGALAM. BY ADV. SRI.C.P.UDAYABHANU RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE S.I.OF POLICE, KOTHAMANGALAM POLICE STATION, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. PUBLIC PROSECUTOR SRI.TEKCHAND SRI.M.K.DAMODARAN, SENIOR ADVOCATE FOR DEFACTO COMPLAINANT SRI.SOORAJ T.ELENJICKAL FOR DEFACTO COMPLAINANT THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON 01/03/2010 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 573 OF 2010 ------------------------------------------------------ Dated this the 1st day of March, 2010 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioner is accused No.1 in Crime No.16 of 2010 of Kothamangalam Police Station. 2. The offences alleged against the petitioner are under Sections 143, 147, 148, 324, 326 and 308 read with Section 149 of the Indian Penal Code and Sections 3(a) and 5 of the Explosive Substances Act. 3. The prosecution case is that on 6.1.2010 at about 3 PM, about ten persons under the leadership of the petitioner, armed with deadly weapons and explosive substances like country bombs, trespassed into the property belonging to Pauly Mathew, the brother of the petitioner herein, and attacked the de facto complainant Soman, a contractor employed by Pauly Mathew, and his workers. It is alleged that the accused persons hurled country bombs and gunds on the victims and assaulted them with iron rods, wooden reapers B.A. NO. 573 OF 2010 :: 2 :: and chopper. One Dileep Kumar, an employee, sustained fracture. He had to undergo a surgical operation. One Venkitesh sustained burn injuries. Two other employees, namely, Muniyandi and Velmurugan, also sustained injuries. 4. The petitioner moved the Court of Sessions, Ernakulam under Section 438 of the Code of Criminal Procedure. That application was dismissed by the learned Sessions Judge as per the order dated 25.1.2010. 5. Tomy Mathew, the petitioner herein, and Pauly Mathew are brothers. The learned counsel for the petitioner submitted that they and other brothers are running a resort at Kovalam under the name and style “Somatheeram”. There are disputes among the brothers. Several disputes are pending between the petitioner and Pauly Mathew. In respect of an extent of 2 and odd acres at Nadukani, within the limits of Kothamangalam Police Station, it would appear that there is dispute between the petitioner and Pauly Mathew. Pauly Mathew had engaged the de facto complainant, the Managing Director of Born Builders Private Limited to construct a farm resort in the property. The construction activities were going on. It is alleged B.A. NO. 573 OF 2010 :: 3 :: that the incident on 6.1.2010 occurred as a result of the rivalry between the petitioner and Pauly Mathew. 6. Sri.C.P.Udayabhanu, the learned counsel appearing for the petitioner, submitted that the petitioner is falsely implicated in the case on account of the rivalry between the petitioner and Pauly Mathew. The petitioner is the Manager of Catholic Syrian Bank. Several disputes are pending between them. It is submitted that on 6.1.2010, while the petitioner was travelling in a car, around fifty people intercepted the car and attacked him and forcibly took away the car. On a petition filed by the wife of the petitioner, Crime No.23 of 2010 was registered by the Kothamangalam Police. According to the petitioner, Crime No.16 of 2010 was registered on a false allegation, in order to escape from the consequences of the offence alleged in Crime No.23 of 2010. 7. The de facto complainant is represented by counsel. Before the learned Sessions Judge also, the de facto complainant was heard. Senior Advocate Sri.M.K.Damodaran appearing for the de facto complainant submitted that several crimes were registered in 2004, 2005 and 2009 against the petitioner. The Senior counsel B.A. NO. 573 OF 2010 :: 4 :: submitted that only to deter Pauly Mathew from constructing the resort, the accused persons had resorted to such heinous offences as mentioned in the First Information Statement. 8. The wife of the petitioner had filed the petition which led to the registration of Crime No.23 of 2010, only to escape from the offences committed by the petitioner. The claim of the petitioner that he is the Manager of Catholic Syrian Bank is disputed by the de facto complainant. It is stated that he is only a clerical staff in the Catholic Syrian Bank and he is not in the habit of attending to his duties regularly. It is also stated that the petitioner is the Secretary of the Communist Party of India (Marxist), Kothamangalam East Branch and he is a very influential person. Only because of his political influence, the petitioner is not arrested so far. It was also pointed out that the police is taking a very “mild attitude favouring the petitioner”. It is also pointed out that the petitioner along with certain goondas had thrown country bombs on Pauly Mathew on 12.1.2010. 9. Advocate Sri.C.P.Udayabhanu stated that there is a delay of three days in preparing the scene mahazar. The scene mahazar was prepared only on 9.1.2010. This itself shows that the case was B.A. NO. 573 OF 2010 :: 5 :: foisted against the petitioner and others. Sri.Udayabhanu also submitted that the accident register-cum-wound certificate in respect of Dileep Kumar shows that the fracture was occasioned as a result of a fall while running. The counsel also submitted that Dileep Kumar was allegedly treated in another hospital subsequently and it is very suspicious. Only to create medical records to show that a grave crime was committed, Dileep Kumar was shifted to another private hospital. 10. The learned Public Prosecutor submitted that three unexploded country bombs and one “gundu” were recovered from the scene of occurrence. The police had recovered the Toyota Qualis vehicle owned by the petitioner, which was found at the scene of occurrence. The Bomb Disposal Squad came to the scene of occurrence and diffused the unexploded bombs. Immediately after the incident, the police sent a message to the Deputy Controller of Explosives. Only in the presence of the experts in explosives, the mahazar could be prepared and that was the reason why delay was occasioned in preparing the scene mahazar. It is pointed out that without the presence of the experts, had the police entered into the scene of occurrence for preparing the scene mahazar, sometimes, B.A. NO. 573 OF 2010 :: 6 :: many material pieces of evidence would have been tampered with or lost. Only the experts in the field could secure a proper recovery of the incriminating articles after visiting the scene of occurrence. The learned Public Prosecutor also submitted that the proper and effective investigation of the case would not be affected by any political clout which the petitioner is allegedly having. It was also submitted by the learned Public Prosecutor that, on investigation, it was found that the incident alleged by the wife of the petitioner, as the de facto complainant in Crime No.23 of 2010, is false. 11. The offences alleged against the petitioner and the other accused are grave in nature. The allegation is that the accused persons hurled country bombs and other explosive substances and created a situation of terror at the scene of occurrence. Thereafter, the de facto complainant and his workers, who are not involved in the dispute between the petitioner and Pauly Mathew, were attacked by the accused persons with dangerous weapons. Many of them sustained injuries. The medical records show that one Dileep Kumar sustained fracture and he had to undergo a surgery. One Venkitesh sustained burn injuries. Two other persons also sustained injuries. B.A. NO. 573 OF 2010 :: 7 :: 12. Taking into account the facts and circumstances of the case, the nature and gravity of the offence and the allegations levelled against the petitioner, I do not think that this is a fit case where anticipatory bail can be granted to the petitioner. Custodial interrogation of the petitioner may be required in the case. If anticipatory bail is granted to the petitioner, it would adversely affect the proper investigation of the case. I am of the view that the petitioner is not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. For the aforesaid reasons, the Bail Application is dismissed. (K.T.SANKARAN) Judge ahz/