IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 23RD MARCH 2010 / 2ND CHAITHRA 1932 Bail Appl..No. 1190 of 2010() ----------------------------- AGAINST THE ORDER IN BA.7555/2009 Dated 21/01/2010 CRIME NO.1999/2009 OF KOTTARAKKARA POLICE STATION .................... PETITIONERS/ACCUSED 1 AND 2 ---------------------------------------------- 1. VIJAYAKUMAR, S/O.KUTTAN PILLAI, AGED 46, RAJITHA BHAVAN, MARANAD, VETTIKKAVALA, KOTTARAKKARA. 2. VENUKUMAR, S/O.KUTTAN PILLAI, AGED 43, MELEVILA PUTHENVEETTIL, MARANAD, VETTIKKAVALA, KOTTARAKKARA. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.M.A.MOHAMMED SIRAJ RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 23/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.1190 of 2010 --------------------------------------------- Dated this the 23rd day of March, 2010 O R D E R The petitioners had filed Bail Application No.7555 of 2009 for the same relief which is prayed for in this Bail Application. Bail Application No.7555 of 2009 was dismissed as per the order dated 21st January, 2010. 2. For the sake of convenience, the order dated 21st January, 2010 is extracted below: “This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. Petitioners are accused Nos.1 and 2 in Crime No.1999 of 2009 of Kottarakkara Police Station, Kollam District. 2. The offences alleged against the petitioners are under Sections 143, 147, 294(b), 323, 324 and 326 read with Section 149 of the Indian Penal Code. 3. The prosecution case is that on 6.12.2009 at 22 hours, the accused persons attacked the de facto complainant with iron rod and stick. It is stated that the first accused had beaten the de facto complainant with BA No.1190/2010 2 an iron rod, which resulted in the fracture of his right ulna. Accused No.2 attacked the de facto complainant with a stick. 4. Originally, the crime was registered under Sections 294(b) and 324 read with Section 34 of the Indian Penal Code. Later, the other offences were added. 5. In the First Information Statement, mention is made only about the attack made by accused Nos.1 and 2. 6. The learned counsel for the petitioners submitted the following facts: The second accused is a member of the Advisory Committee of Mahadeva Temple, Vettikkavala. The de facto complainant and one Balachandran are also members of the Advisory Committee of the Temple. There is a dispute regarding the conduct of 'Ponkala' festival in the Temple. Due to the enmity towards the petitioners, the case was foisted against them. On 6.12.2009 at 23 hours, the de facto complainant, Balachandran and others attacked the first petitioner and he sustained injuries. Crime No.1998 of BA No.1190/2010 3 2009 was registered by the police in respect of that incident for the offences under Sections 143, 147, 341, 294(b) and 324 read with Section 149 of the Indian Penal Code. 7. The petitioners state that the case was foisted against them on account of political rivalry. In paragraph 4 of the Bail Application, it is stated thus: “4. It is submitted that above crime is registered due to political pressure of the ruling CIP(M) led political party in order to capture the administration of the advisory committee of Mahadeva Temple, Vettikkavala under Travancore Devaswom Board. It is submitted that 1st petitioner who questioned the attempt of CIP(M) members in the advisory committee of the Temple to capture the administration of temple with regard to a Ponkala Festival, was attacked by the alleged defacto complainant and his henchmen on 6.12.09 when he was on the way to his residence. On the basis of statement of 1st petitioner the Kottarakkara police registered a crime No.1998/09 against defacto complainant and 4 others, a true copy of which is produced and marked as Annexure- III. It is submitted that 2nd petitioner is the BA No.1190/2010 4 brother of 1st petitioner and also one of the member advisory committee of temple who resisted the attempt of CPI(M) led members in capturing the administration of Mahadeva Temple.” 8. The learned Public Prosecutor submitted that the second accused is involved in seven other crimes. Accused Nos.1 and 2 (petitioners in this Bail Application) are brothers. The written instruction submitted to the learned Public Prosecutor is that “due to the continuous attack by accused Nos.1 and 2, law abiding people are afraid to live there”. 9. Politics, temple affairs, personal rivalry and local issues are all involved in this case. There is dispute regarding the conduct of 'Ponkala' festival in the Temple. The people of the locality may not be interested in the capture of administration or the affairs of the Temple or in the dispute between the de facto complainant and the accused. However, it would appear that a peaceful atmosphere is not available in the locality. On account of whose fault the situation has arisen cannot be decided at this stage. This state of BA No.1190/2010 5 affairs should not be allowed to continue. The District Superintendent of Police shall personally supervise the investigation of all the connected cases between the parties. The submission made by the learned counsel for the petitioners that the de facto complainant in the present case was admitted only in a private hospital and that the wound certificate produced may not disclose the true state of affairs is also a matter to be looked into. 10. Now the question is whether the petitioners are entitled to get anticipatory bail. The contention of the learned Public Prosecutor that the petitioners lead a gang in the locality and they indulge in criminal activities cannot be brushed aside as irrelevant. The fact that the second accused is involved in seven other cases is also a material factor to be taken note of. The discretionary jurisdiction under Section 438 of the Code of Criminal Procedure cannot be exercised in favour of persons who are regularly indulging in criminal activities. Serious offences are alleged against the petitioners. If anticipatory bail is granted to the BA No.1190/2010 6 petitioners, it would adversely affect the proper investigation of the case. I am of the view that the petitioners are not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. For the aforesaid reasons, the Bail Application is dismissed. The Registry shall forward a copy of the order to the District Superintendent of Police, Kollam for further action.” 3. I do not find any circumstance or subsequent event warranting the consideration of a second application for anticipatory bail at the instance of the petitioners. The prayer made by the petitioners was rejected by a detailed order. There is no justification for passing another order contrary to the one passed earlier without any justifiable reason or subsequent event. For the aforesaid reasons, the Bail Application is dismissed. K.T.SANKARAN, JUDGE csl