IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 Bail Appl..No. 4027 of 2009 CRIME NO.312 OF 2009 OF PALA POLICE STATION, KOTTAYAM DISTRICT. APPLICANT/ACCUSED NO.1 ------------------------------------------ E.R.SAJI @ AAYI SAJI, AGED 36 YEARS, S/O.E.K.RAGHAVAN, PALLIPADU HOUSE, EDAPADDY P.O. MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.P.VIJAYA BHANU RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE STATION HOUSE OFFICER, PALA POLICE STATION. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21/08/2009, ALONG WITH B.A.NO.4028 OF 2009 AND CONNECTED CASES, THE COURT ON 28/08/2009 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A.NOS.4027, 4028, 4035, 4037, 4040, 4041, 4042 AND 4046 OF 2009 ------------------------------------------------------ Dated this the 28th August, 2009 O R D E R These bail applications are filed by E.R.Saji alias Aayi Saji under Section 438 of the Code of Criminal Procedure seeking anticipatory bail in eight crimes registered in Pala Police Station. 2. The details of the crime numbers and the offences alleged against the petitioner are shown below: Sl. No. Number of the bail Application Crime number Rank of the petitioner Offences alleged 1 4027 of 2009 312 of 2009 1st accused 143, 147, 148,149, 294 (b), 427, 452, 506 (ii) 2 4028 of 2009 346 of 2008 1st accused 120 B, 395 3 4035 of 2009 308 of 2009 1st accused 143,147,148,294 (b), 427, 452 read with 149 4 4037 of 2009 311 of 2009 1st accused 143,147,148,149, 294 (b), 429, 452, 506 (ii). 5 4040 of 2009 374 of 2009 2nd accused 457, 380 read with section 34 B.A. NOS.4027, 4028, 4035, 4037, 4040, 4041, 4042 AND 4046 OF 2009 :: 2 :: 6 4041 of 2009 373 of 2009 2nd accused 457,380 read with Section 34. 7 4042 of 2009 371 of 2009 2nd accused 457, 380 read with Section 34 8 4046 of 2009 372 of 2009 2nd accused 457, 380 read with Section 34. 3. The learned counsel for the petitioner submitted the following: The above cases are foisted against the petitioner. The petitioner is a paraplegic. He cannot move about. He is confined to bed. In 2003, the petitioner was brutally manhandled by the police and he sustained grave injuries resulting in paralysis. Some goondas tried to do away with the petitioner by forcibly entering into the house armed with deadly weapons and acid. They ransacked the house. The petitioner was not available in the house and thus he escaped. The mother of the petitioner complained to the police about the incident. But no crime was registered. Therefore, she filed a petition to the Superintendent of Police, Kottayam. The police did not like the same. They started registering a series of crimes implicating the petitioner whenever an offence was committed by somebody. The acts of the police amount to “violation of laws, a perpetual salvation of human rights and a manifest oppression of the fundamental rights guaranteed by the Constitution of India.” B.A. NOS.4027, 4028, 4035, 4037, 4040, 4041, 4042 AND 4046 OF 2009 :: 3 :: 4. The learned Public Prosecutor submitted that the petitioner is a known goonda. One Bins, brother of Biju, left the gang of the petitioner. Crime No.312 of 2009 ( in which the de facto complainant is Biju) was committed by the petitioner and his associates due to the said rivalry. One Vijesh also left the gang of the petitioner. Crime No.308 of 2009 was committed to wreak vengeance on Vijeesh. Crime No.311 of 2009 was committed since the petitioner mistook the house the defacto complainant as that of Bins. In Crime Nos.374 of 2009, 374 of 2009 and 372 of 2009, the accused persons committed theft of rubber sheets worth Rs.50,000/- , Rs.45,000/- and Rs.22,500/- respectively. In Crime No.371 of 2009, there was theft of aluminium dishes worth Rs.24,000/- The allegation in Crime No.346 of 2008 is that while the defacto complainant and his friend were travelling on a motor bike, the petitioner and his gang men came in a scorpio car, overtook the bike, hurled chilly powder on the face of the de facto complainant and snatched away the carry bag in the hands of the pillion rider. According to the prosecution, this was done by the accused persons under the erroneous impression that money was inside the bag, while in fact it contained mangoes. B.A. NOS.4027, 4028, 4035, 4037, 4040, 4041, 4042 AND 4046 OF 2009 :: 4 :: 5. The learned Public Prosecutor also submitted the following facts, on instructions. The petitioner is the leader of a goonda gang operating at Pala and nearby areas. He is involved in several cases of theft, house breaking, lurking house trespass, robbery, dacoity, criminal assault, attempt to murder and also murder cases. In the year 2003, to escape from arrest by the police, the petitioner jumped down from a building and sustained grave injuries. He was in judicial custody for a long period. In 2006, after release from jail, the petitioner along with his gang members had committed several offences. The petitioner used to travel in vehicles along with his gang members and commit various offences. Though several persons had suffered the attacks of the gang, the victims were reluctant to report to the police due to fear of the petitioner and his gang. On investigation, it is revealed that the petitioner uses eight mobile phones having connection in different names. The petitioner is engaged in the criminal activities by contacting his associates and customers over mobile phones. Hundreds of calls are being made and/ or received every day by the petitioner using these mobile phones. One Bins was a member of the gang of the petitioner. He B.A. NOS.4027, 4028, 4035, 4037, 4040, 4041, 4042 AND 4046 OF 2009 :: 5 :: left the gang due to difference of opinion with the petitioner. Bins was trying to form a gang of his own. Infuriated by this, the petitioner and his associates went to the house of Bins in a Safari car and scorpio car. Bins was not available in the house. The petitioner’s gang caused extensive damage to the house of Bins, destroyed an autorikshaw available there and threatened the inmates of the house. One Vijesh was also a member of the petitioner’s goonda gang. The petitioner and his gang, including Vijesh, were taking compulsory collection (‘goondappirivu’) from the sand miners of Pala. Vijesh left the gang of the petitioner. After leaving the gang of the petitioner, Vijesh formed another gang and started making illegal collections from the sand miners. When it was found that Vijesh is a threat to his activities, the petitioner and his associates criminally trespassed into the house of the brother of Vijesh, destroyed autorikshaws and threatened Vijesh and members of his family with dire consequences. The prosecution alleges that Crime No.311 of 2009 was committed by the accused therein at the residence of the de facto complainant therein under the erroneous impression that the said house belonged to Bins. B.A. NOS.4027, 4028, 4035, 4037, 4040, 4041, 4042 AND 4046 OF 2009 :: 6 :: 6. From the facts narrated above, it is clear that the case of the prosecution is that the petitioner is the leader of a goonda gang. The gang is engaged in various criminal activities in and around Pala. It is also the case of the prosecution that the gooda gang regularly take ‘goondappirivu’ from the sand miners. Two persons, namely, Bins and Vijesh left the gang of the petitioner. They have formed their own goonda gangs. Thus instead of one known goonda gang, now there are three gangs engaged in the criminal activities in and around Pala. Innocent persons are the victims of the crimes. The rivalry between the gang of the petitioner and those of Vijesh and Bins has resulted in commission of several offences. 7. The peace loving people are put to terror by the goonda gangs. The activities of goonda gangs are reportedly increasing day by day in the State. If the activities of the goonda gangs are not curbed, an alarming situation would arise whereby the ordinary citizens would be exposed to criminal acts at any time and at any place. The alarm would slowly grow to danger. A sense of insecurity would prevail in the minds of the ordinary people. It would undermine the freedom of the people and make their life miserable. B.A. NOS.4027, 4028, 4035, 4037, 4040, 4041, 4042 AND 4046 OF 2009 :: 7 :: The State is bound to protect the fundamental rights and human rights of the law abiding citizens. If not, it would adversely affect the normal activities in life of the citizens. Many persons may resort to similar illegal and criminal activities. Lawlessness will prevail in the society. Rule of law would be put to jeopardy. 8. I am of the view that in the facts and circumstances of the cases and in the light of the allegations levelled against the petitioner, he is not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. Grant of anticipatory bail is a discretionary relief. If the court does not exercise the discretion properly, it would be an indiscretion. Exercise of discretion in favour of an individual should not result in denial of the freedom of the common man. Freedom and human rights are valuable for all. When pitted against the freedom and human rights of the law abiding people, the said rights of the persons who rob those rights of the people become insignificant and less important. Plea of availability of such rights should not result in exercising discretionary jurisdiction in favour of the accused, to the peril of the victims of offences. The allegations levelled against the petitioner would show B.A. NOS.4027, 4028, 4035, 4037, 4040, 4041, 4042 AND 4046 OF 2009 :: 8 :: that his physical invalidity has not affected his criminal activities in any way. He has a well organised gang. The petitioner need only formulate ideas and make commands. His associates are ready to implement the commands. That the petitioner is paraplegic, is not a ground to exercise the discretion in his favour, in the light of these allegations. I am not inclined to believe that the cases are foisted against the petitioner. Prima facie, such a conclusion is not possible. For the aforesaid reasons, the Bail Applications are dismissed. (K.T.SANKARAN) Judge