Kerala High Court

Sethu vs State Of Kerala on 16 February, 2024

Author: C.S.Dias

Bench: C.S.Dias

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
     FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
                      BAIL APPL. NO. 1116 OF 2024
        CRIME NO.810/2023 OF Yeroor Police Station, Kollam
AGAINST THE ORDER/JUDGMENT CRMP 194/2024 OF I ADDITIONAL DISTRICT
   COURT & I ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM
PETITIONER/S:

            SETHU
            AGED 50 YEARS
            S/O.MADHAVANACHARI, SATHI BHAVAN, CHOZHIYAKODE P.O,
            KULATHUPUZHA VILLAGE, KOLLAM DISTRICT -, PIN - 691310

            BY ADVS.
            K.SIJU
            ANJANA KANNATH
            MARIYA JOSE
            ASWATHY VIJAYAKUMAR



RESPONDENT/S:

    1       STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            PIN - 682031

    2       STATION HOUSE OFFICER
            YEROOR POLICE STATION, KOLLAM -, PIN - 691312


OTHER PRESENT:

            PP SMT SHINY V O




     THIS   BAIL   APPLICATION    HAVING    COME   UP   FOR   ADMISSION   ON
16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 1116 OF 2024
                              2

                         ORDER

The application is filed under Section 439 of the

Code of Criminal Procedure, 1973, by the sole accused in

Crime No.810/2023 of the Yeroor Police Station, Kollam,

registered against him, for allegedly committing the

offence punishable under Section 326A of the Indian

Penal Code. The petitioner was arrested on 28.08.2023.

2. The crux of the prosecution case is that: the

accused had poured red chilly water on the bodies of the

children who are the relatives of the defacto complainant.

Since the defacto complainant advised the victims to file a

complaint before the Police, the petitioner turned inimical

towards him. Accordingly, on 27.08.2023, at around 11

p.m,. the accused poured acid on the face of the defacto

complainant and he lost his eye sight. Thus, the accused

has committed the above offence.

3. Heard; Sri. K.Siju, the learned counsel appearing

for the petitioner and Smt. Shiny V.O., the learned Public

Prosecutor.

4. The learned counsel appearing for the petitioner BAIL APPL. NO. 1116 OF 2024

submitted that the petitioner is totally innocent of the

accusations levelled against him. The petitioner has been

in judicial custody since 28.08.2023. The investigation in

the case is complete and the final report has been laid.

Although the petitioner had preferred an application

before the Court of Session-I, Kollam, the same has been

dismissed by Annexure A4 order on the finding that the

petitioner cannot be released on bail. The said finding is

erroneous and perverse. The petitioner's continued

detention is unnecessary. Hence, the application may be

allowed.

5. The learned Public Prosecutor seriously opposed

the application. She contended that the petitioner has

committed a heinous offence. The investigation has been

completed and the final report has been laid. The learned

Sessions Judge has rightly dismissed the application and

directed the petitioner to face the trial as an under trial

prisoner. Taking into account the gravity of offence, the

petitioner shall not be released on bail. Hence, the

application may be dismissed.

BAIL APPL. NO. 1116 OF 2024

6. The prosecution allegation is that the petitioner

had poured acid on the face of the defacto complainant

and he lost his eye sight.

7. In Prasanta Kumar Sarkar v. Ashis

Chatterjee and Another [(2010) 14 SCC 496], the

Honourable Supreme Court has observed as follows:

"9. ......... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation:

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail."

8. Subsequently, in Kalyan Chandra Sarkar's

case, the Hon'ble Supreme Court has observed that, while

considering a bail application, a detailed examination of

the evidence and elaborate documentation of the merits of BAIL APPL. NO. 1116 OF 2024

the case need not be undertaken. Nonetheless, the nature

of the accusation, the severity of the punishment, the

reasonable apprehension of the accused tampering with

the witness or apprehension of threat to the complainant

and prima facie satisfaction of the court in support of the

charge should be looked into. It is also explicitly observed

that the mere fact that the accused has undergone a

certain period of incarceration or that the trial is not

likely to be concluded in the near future by itself would

not entitle the accused to be enlarged on bail, especially

when the gravity of the offence is severe, and there is an

allegation of tampering with the witnesses by the

accused.

9. In Mahipal v. Rajesh Kumar [(2020) 2 SCC

118], the Hon'ble Supreme Court has held thus:

"12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the BAIL APPL. NO. 1116 OF 2024

commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail."

10. It is also worth recollecting the observations

made by the Hon'ble Supreme Court in Ash Mohammad

v. Shiv Raj Singh @ Lalla Babu & Anr [(2012) 9 SCC

446] in the following lines:

"30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused."

BAIL APPL. NO. 1116 OF 2024

On an anxious consideration of the facts, the

materials placed on record, the rival submissions made

across the Bar and on comprehending the nature, gravity

and seriousness of the accusations leveled against the

petitioner and that if the petitioner is let off on bail, there

is every likelihood of him intimidating the witnesses and

tampering with the evidence, I am satisfied that the

learned Sessions Judge has rightly held that the petitioner

has to face the trial as an under trial prisoner. Therefore,

I hold that the petitioner is not entitled to be released on

bail because there is a danger of justice being thwarted