Kerala High Court
Arsho P.M vs State Of Kerala on 10 August, 2022
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.
.................................................................
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
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,
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
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
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
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
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.
(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
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