IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 Crl.MC.No. 3820 of 2009() ------------------------- CRMP.4257/2009 of JUDL.MAGISTRATE OF FIRST CLASS - I, ETTUMANUR .................... PETITIONER(S): INJURED ------------------------------------ MATHEW ALEX, AGED 51 YEARS, VELLAPALLY HOUSE, PERROR VILLAGE, ETTUMANOOR, KOTTAYAM. BY ADV. SRI.K.C.PETER SRI.PREMCHAND R.NAIR SRI.TOJAN J. VATHIKULAM SRI.BEPIN PAUL RESPONDENT(S): INVESTIGATING OFFICERS/ACCUSED 5 AND 6 ------------------------------------------------------------------------------------------ 1. SUB INSPECTOR OF POLICE, ETTUMANOOR POLICE STATION, KOTTAYAM. 2. STATE OF KERALA, REP. BY CIRCLE INSPECTOR OF POLICE, ETTUMANOOR CIRCLE REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 3. ADISH, S/O.SIVANKUTTY, VALLOMTHOTIYIL VEEDU, PEROOR VILLAGE, THELLOKA KARA. 4. ANISH MATHEW, S/O.SAJU JOSEPH, VALIYAKANJIRATHUMKAL VEEDU, KATAPANA VILLAGE, KUNTHALAMPARAKARA. BY PUBLIC PROSECUTOR SRI. S.U. NAZAR. SRI.PHILIP T.VARGHESE FOR R4 SRI.THOMAS T.VARGHESE FOR R4 SRI.MOHAN IDICULLA ABRAHAM FOR R3 SRI.RACHEL JOSEPH FOR R3 SRI.MARTIN D.ALUMKARA FOR R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 02/02/2010, ALONG WITH CRMC NO. 3821 OF 2009, CRMC NO. 3822 OF 2009, CRMC NO. 4150 OF 2009, CRMC NO. 4161 OF 2009, CRMC NO. 4173 OF 2009 THE COURT ON 08/02/2010 PASSED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. Nos. 3820, 3821, 3822, 4150, 4161 & 4173 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of February, 2010. ORDER All these cases throw up same issue for consideration. Crl.M.C. 3820, 3821 and 3822 of 2009 have been filed by the defacto complainant in Crime No.618 of 2009 of Ettumanoor Police Station against the grant of bail to the accused in the case. The State has preferred the other petitions assailing the same order. 2. The defacto complainant was the victim in Crime No.618 of 2009 of Ettumanoor Police Station. The crime was registered against the accused persons for having committed offences punishable under Sections 143, 147, 148 and 307 read with Section 149 of the Indian Penal Code. 3. The prosecution case is that on 17.10.2009 at about 9.30 p.m. while the victim was coming from Kottayam in his car, the accused persons, who were taking drinks by standing near a car picked up quarrel Crl.M.C.3820/2009 & con.cases. 2 with him. The victim had to stop his vehicle and thereafter the row between them followed. The victim proceeded on his way and when his car reached Peroor Junction, he was intercepted and the accused got down from the car and attacked him. According to the witness, he suffered grievous injuries and the attempt of the accused persons was to do away with him. Hearing his wails the public had gathered at the place, the accused had left the place. The investigation is still going on and it is at an infant stage. Accused were arrested very recent to the incident. The complaint of both the victim as well as the State is that the courts which granted bail have not properly adverted to the facts of the case and have mechanically granted bail to the accused persons. The victim has produced a certificate which shows that he suffered grievous injuries and that he had undergone treatment for a long time. Both the State as well as the victim say that since the investigation was at an infant stage and since there is every possibility of the accused persons fleeing from justice, and also tampering Crl.M.C.3820/2009 & con.cases. 3 with the evidence, the courts below should not have granted bail to them. Considering the gravity of the offence and the nature of the act committed by the accused and for facilitating trial, the courts should have restrained from allowing the application for bail filed by the accused persons. 4. Counsel appearing for the respondents in these proceedings pointed out that the facts are otherwise. It was the victim who had picked up a quarrel with the accused persons and the victim being a very influential business man in the locality had managed to influence the police and foisted a case against the accused. Attention was drawn to the fact that initially the victim had only superficial injuries and thereafter he managed to get a certificate from a hospital, of which he was the custodian, showing that he had suffered serious injuries. They pointed out that it was after considering all the facts and circumstances of the case that bail was granted. It is also contended that it was taking note of the seriousness of the offence, the nature of the injury, the Crl.M.C.3820/2009 & con.cases. 4 possibility of the availability of the accused for trial etc that the orders were passed. It was also pointed out that none of the accused had any criminal antecedents and they are employed people except one, who is a student. Learned counsel pointed out that even assuming that bail ought not to have been granted, there is no justification for cancelling bail since the investigation has progressed to a good extent and there is nothing to show that the accused persons have violated any of the conditions imposed by the courts while granting bail to them. 5. It is not proper to go into the merits of the case at this point of time. Even assuming that there was some flaw in the initial act of granting bail to the accused persons, at this distance of time there will be no justification for cancelling the bail and remanding the accused persons to judicial custody. Whether the story put forward by the prosecution is true or not is to be determined at the time of trial. Any how, there is nothing to show that any of the accused persons had any criminal antecedents. The courts Crl.M.C.3820/2009 & con.cases. 5 below were convinced that releasing the accused on bail will not hamper the investigation. Whether the courts below were justified in omitting to note the seriousness of the act committed by the accused is irrelevant as of now. Accused have been on bail for almost three months. There is nothing to show that they had violated any of the conditions of the bail or that they had shown any inclination to flee from justice. 6. Counsel appearing for the petitioner in these petitions as well as the learned Public Prosecutor pointed out that there is every chance of the accused persons going abroad and thereby staying away from trial. It is pointed out that necessary safeguards need to be made in this regard. In fact counsel appearing for the petitioner as well as the Public Prosecutor wanted this court to direct the accused to surrender their passports. 7. Considering the nature of the offence said to have been committed by the accused and the fact that they are on bail and also the fact that they have not violated any Crl.M.C.3820/2009 & con.cases. 6 of the conditions in the bail order, it is felt that cancellation of bail is unnecessary at this point of time. It will not be proper and justifiable to direct the accused to surrender the passport. However, steps need to be taken to ensure that the accused are available for trial. Therefore, there will be a condition added to the bail order that in case if any of the accused persons want to leave the State or country, they shall seek prior permission of the court which granted bail to them. With these observations, these petitions are disposed of. P. BHAVADASAN, JUDGE sb.