IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
BAIL APPL. NO. 5714 OF 2022
CRIME NO.1768/2018 OF Ernakulam Town North Police Station,
Ernakulam
PETITIONER/ACCUSED NO.2:
ARSHO P.M,AGED 27 YEARS, S/O.P.C.MANI
PAZHUKKATHARA HOUSE,MUTHUKURUSSI P.O,
PALAKKAD- 678593
BY ADVS.
P.K.VARGHESE,M.T.SAMEER
P.S.ANISHAD,K.R.ARUN KRISHNAN
JERRY MATHEW,BIJU KUMAR
REGHU SREEDHARAN,RAMEEZ M. AZEEZ
RESPONDENTS/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
ADDL.R2 NISSAM NAZAR, AGED 36 YEARS,
S/O.NAZAR, VELLUPARAMBIL HOUSE,
NADAKKAL, ERATTUPETTAH VILLAGE,
MEENACHIL TALUK, KOTTAYAM, KERALA - IS IMPLEADED AS
PER ORDER DATED 05.08.2022 IN CRL.MA NO.2/2022
ADDL.R3 NIMISHA RAJU ,W/O. DIVIN K DINAKARAN,
NADUTHURUTHIL HOUSE, NADUTHURUTHU BHAGOM,
MURINJAPUZHAKARA, CHEMBU VILLAGE,
VAIKOM TALUK, KOTTAYAM - IS IMPLEADED AS PER ORDER
DATED 10.08.2022 IN CRL.MA.4/2022
BY ADVS.
R1 SR.PUBLIC PROSECUTOR C.K.SURESH
R2 BY ADV.V.VINAY
NIJI.K.SHAHUL
S.RAJEEV
M.S.ANEER
PRERITH PHILIP JOSEPH
SARATH K.P.
R3 BY ADV.P.A.AYUB KHAN
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BA No.5714 of 2022 2
VIJU ABRAHAM, J.
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B.A.No.5714 of 2022
.................................................................
Dated this the 10th day of August, 2022
ORDER
This is an application for regular bail.
2. The petitioner is a Post Graduate student of Archaeology and Material Cultural Studies in Maharajas College, Ernakulam. The petitioner is the 2nd accused in Crime No.1768 of 2018 of Town North Police Station, Ernakulam District registered alleging commission of offences punishable under Sections 323, 324, 455, 308, 506 and 427 of the Indian Penal Code (in short, "IPC"). The investigation in the above case was handed over to the District Crime Branch on 10.06.2022 and Section 458 IPC was also added by the new investigating agency.
3. The prosecution allegation is that the petitioner along with the other accused trespassed into the rented residence of the defacto complainant at about 11.30 PM on 07.11.2018 with an intention to commit culpable homicide and attacked him with deadly weapons causing injuries and thereby committed the offences as alleged.
4. It is submitted that the petitioner was originally arrested on 22.01.2019 by the police and he was released on bail on 20.03.2019 and as per the order of this Court in BA. No. 1786 of 2019. While BA No.5714 of 2022 3 granting bail this Court as per Annexure-1 order imposed certain conditions including one that the petitioner shall not get involved in any other crime and any such involvement will be a ground for cancellation of bail.
5. It is submitted that the petitioner is a student leader and presently holding the post of State Secretary of Students' Federation of India (SFI). The petitioner was wrongly implicated in a number of cases due to political vengeance. Majority of the cases have been charged for conducting protest marches raising issues affecting the student community. In the present case also, the petitioner has been falsely implicated at the behest of the de facto complainant who was also a student union leader.
6. It is further submitted that the defacto complainant in Crime No. 1768 of 2018 filed Crl.M.Appln. No.1 of 2021 in BA. No. 1786 of 2019 before this Court contending that the condition No. 4 imposed by this Court was violated by the petitioner. Subsequently the regular bail granted to the petitioner as per Annexure-1 was cancelled by this Court as per Annexure-2 order dated 28.02.2022 and while cancelling the bail order this Court also directed the investigating officer to arrest the petitioner. Thereafter, the petitioner approached the Apex Court preferring Special Leave Petition against the said order. In the meanwhile, Assistant Commissioner of Police, District Crime Branch, BA No.5714 of 2022 4 the new investigating officer, in response to the directions issued by this Court arrested the petitioner on 12.06.2022 and the Magistrate remanded the petitioner into custody. After the arrest of the petitioner, the Special Leave Petition was not proceeded with further. Petitioner thereafter approached the Chief Judicial Magistrate Court seeking statutory bail but the same was dismissed as per Annexure-3 order dated 21.06.2022. Being aggrieved by Annexure-3 order, the petitioner approached the Court of Sessions. Ernakulam by filing Crl.M.C No 1456 of 2022 for statutory bail which was also dismissed as per Annexure-4 order. Thereafter the petitioner filed a bail application before this Court as B.A.No 5188 of 2022 and the same was also dismissed by this Court as per Annexure-5 order dated 12.07.2022. Petitioner has now approached this Court mainly contending that his exams are scheduled and has produced Annexures-6 to 8 to show that his exams are scheduled to be held from 23.07.2022 to 03.08.2022.
7. Petitioner has a further case that most of the cases he got involved are in connection with political protest or dharnas and under the provisions of Kerala Epidemic Disease Ordinance. As regards, three cases among those cases in which the petitioner is alleged to have been involved, the learned counsel for the petitioner would submit that in Crime No.1732 of 2019 alleging commission of offences punishable under Sections 341, 324 and 294(b) read with Section 34 BA No.5714 of 2022 5 IPC and Crime No.2064 of 2019 alleging commission of offences punishable under Sections 342, 323 and 324 read with Section 34 IPC (later in the course of investigation offence under Section 365 IPC was deleted), of Central Police Station Ernakulam, the petitioner was granted bail. As regards Crime No.2084 of 2021 of Gandhinagar Police Station Kottayam, registered under Section 354A IPC and other offences including offences under Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, the specific case of the petitioner is that no serious overt act is alleged against him and that going by Annexure-13 First Information Statement only allegation is that the petitioner was also present for the commission of alleged offences. Other than these cases, the specific case of the petitioner is that all other cases were registered for having been involved in political agitations or dharna, he being a student leader. His further case is that all other cases were registered due to political vengeance.
8. The defacto complainant in Crime No.2084 of 2021 of Gandhinagar Police Station has filed an impleading petition and submitted that the facts stated in paragraph 13 of the bail application that she has no grievance against the petitioner is wrong and that she is actively prosecuting the matter. Further, it was submitted by the learned counsel that she has been getting threatening calls that she will be done away with if she takes a stand against the petitioner. Even though it is BA No.5714 of 2022 6 stated that a complaint has been filed before the concerned police authorities, the same is not produced in this proceedings. The learned Public Prosecutor upon instructions submitted that no complaints have been received in this regard.
9. The defacto complainant in the present crime got himself impleaded and seriously opposed the application for bail. He submitted that Annexure-1 bail order was later cancelled by this Court as per Annexure-2 order for having been involved in subsequent crimes in violation of the bail condition. The petitioner being a student leader of the ruling party has great political influence and he is flouting the law in all possible means and petitioner is a person with zero percent attendance and that he cannot be treated as a student at all. The facts stated in paragraph 13 of the bail application are false and he has misled this Court. Counsel for the defacto complainant would rely on the judgment of the Apex Court in Somesh Chaurasia v. State of MP and another, 2021 KHC 6317 to contend for the position that the rule of law should prevail and there cannot be two parallel legal systems, one for the rich and powerful and other for small men without resources and capabilities and contended that in the present case the investigating agency is unduly helping the petitioner without completing the investigation within a reasonable time. The learned counsel also relies on the judgment in Renjith @ Kadavi Renjith v. State of Kerala, 2021 BA No.5714 of 2022 7 KHC 3231 and Nishil v. SHO and another, 2007 (4) KHC 336 to contend for the position that violation of bail condition shall be seriously viewed. He also further relies on the judgment in Rajabai Abdul Rehman Munshi v. Vasudev Danjibhai Mody, 1964 KHC 442 to contend for the position that a party who approaches the court with unclean hands is not entitled for the discretionary remedy in as much as the petitioner has misled the court stating that the defacto complainant in Crime No.2084 of 2021 has no subsisting grievance against the petitioner.
10. It is a fact that petitioner was initially arrested in the present case on 22.01.2019 and was released on bail only on 20.03.2019 as per Annexure-1 after undergoing custody for almost 56 days. For having got involved in other criminal cases in violation of the bail conditions in Annexure-1 order his bail order was cancelled by Annexure-2 order and thereafter he was arrested on 13.06.2022. In the present bail application, this Court has granted interim bail to the petitioner for the period from 23.07.2022 to 03.08.2022 for writing his examination and it is informed by the counsel for the petitioner as well as the learned Public Prosecutor that he has surrendered back and is in custody thereafter. Excluding the said period after his second arrest, he is in custody for 47 days making a total period of detention for almost 103 days. It is submitted by the learned counsel for the petitioner that BA No.5714 of 2022 8 he has been granted bail in all the crimes which were subsequently registered against him after Annexure-1 bail order. It is true that the petitioner is involved in several other cases, though most of the cases are registered for having been involved in political agitation, few of them are serious in nature. Petitioner is admittedly a student. Though the petitioner has violated the bail conditions and has been involved in other criminal cases, taking into consideration of the fact that he is a student and that he has undergone more than 100 days in detention in the present crime, I feel that petitioner could be granted bail but on following stringent conditions.
(i) Petitioner shall execute a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional court. One of the sureties shall be his parent and in their absence alone one of the close blood relatives shall be the surety.
(ii) He shall appear before the investigating officer on all Saturdays at 11:00 a.m. till the filing of the charge sheet.
(iii) He shall not enter the limits of Ernakulam District for a period of 4 months from today, except for complying with condition No.
(ii) or for appearance in a court of law where his presence is absolutely essential. However, in case of extreme emergency, he may enter the limits with prior permission in writing of the jurisdictional court. BA No.5714 of 2022 9
(iv) He shall not directly or indirectly threaten, coerce or intimidate the defacto complainant and the witnesses or shall not interfere in the process of investigation in any of the crimes he is involved including the present crime as well as Crime No. 2084 of 2021 of Gandhinagar Police Station, Kottayam.
(v) He shall not involve in any other offence while on bail. If any of the aforesaid conditions are violated, the Investigating Officer in the abovesaid crime may file an application before jurisdictional court for cancellation of bail.
Sd/-
VIJU ABRAHAM JUDGE cks