Dismissed

Binu Mathew v. State of Kerala

Kerala HC17 Aug 2020Bail Appl./188/2020

Case brief

AI extract

What is this about?

The petitioner, a journalist, sought anticipatory bail alleging a false FIR for extortion. The court noted the newspaper published adverse news about the complainant's hospital. Concluding it was not a fit case for anticipatory bail due to the nature of allegations and the accused's conduct, the application was dismissed.

What did the court decide?

The bail application filed by the petitioner is dismissed.

Binu Mathew Vs State of Kerala — Bail and Remand | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN

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MONDAY, THE 17TH DAY OF AUGUST 2020 / 26TH SRAVANA, 1942

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Bail Appl..No.188 OF 2020

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CRIME NO.2667/2019 OF MUVATTUPUZHA POLICE STATION , ERNAKULAM DISTRICT

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PETITIONER/ACCUSED:

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BINU MATHEW,AGED 41 YEARS S/O. LATE MATHEW, VELLACKKAKKUDUYIL, KOLENCHERRY, ERNAKULAM.

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BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)

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RESPONDENTS/STATE, COMPLAINANT & DEFACTO COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 (CRIME NO.2667/2019 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM DISTRICT).

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2 STATION HOUSE OFFICER,MUVATTUPUZHA POLICE STATION, ERNAKUALM DISTRICT-686 661 (CRIME NO.2667/2019 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM DISTRICT).

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3 ADDL.R3. DR.SABINE S , CHAIRMAN AND MANAGING DIRECTOR , SABINE HOSPITAL AND RESEARCH CENTRE PRIVATE LIMITED PEZHAKKAPPILLY, MUVATTUPUZHA PIN - 686674 (IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 23/1/2020 IN CRL MA 1/2020 IN BA 188/2020)

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R1 & R2 BY SRI.RENJITH.T.R., PP R3 BY ADV. K.RAMAKUMAR (SR.) R3 BY ADV. SRI.T.RAMPRASAD UNNI R3 BY ADV. SRI.S.M.PRASANTH R3 BY ADV. SRI.G.RENJITH R3 BY ADV. SMT.R.S.ASWINI SANKAR R3 BY ADV. SRI.T.H.ARAVIND

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 17.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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B.A. NO.188 OF 2020 2

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O R D E R

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Dated this the 17th day of August 2020

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This Bail Application filed under Section 438 of Criminal Procedure Code (Cr.P.C) was heard through Video Conference.

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2. The petitioner is the accused in Crime No.2667 of 2019 of Muvattupuzha Police Station, Ernakulam District. The above case is registered against the petitioner alleging offences punishable under Section 384 of the Indian Penal Code (IPC).

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3. The prosecution case is that, the

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petitioner who introduced himself as journalist met the defacto complainant who is a doctor by profession and Managing Director of Sabine Hospital & Research Centre, Pezhakkappilly, Muvattupuzha and told that he is having documents relating to the unethical practice which were allegedly giving in the hospital and threatened that he will publish those materials unless the defacto complainant pays money and accordingly on 18.10.2019 the defacto

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B.A. NO.188 OF 2020 3

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complainant paid Rs.10,000/- to the petitioner and thereby committed the offences.

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4. Heard the learned counsel for the petitioner, Sri.K.Ramkumar, the learned Senior Counsel for the 3^rd respondent and the learned public prosecutor.

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5. The learned counsel for the petitioner submitted that this is a false case foisted against the petitioner. The counsel submitted that even if the entire allegation is accepted, no offence under Section 384 is made out. The petitioner produced several documents to substantiate his case. Annexure -1 is the F.I.R. and F.I.Statement in this case. Annexure-III is the licence issued to the petitioner

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by the local Grama Panchayat to conduct a news service agency by name 'South Edition News Service'. Annexure-IV is produced to show that there is e-mail connection between the petitioner and the defacto complainant from 2016 onwards. Some other documents are also produced by the petitioner to show that the petitioner was actually trying to gather information for Mathrubhumi news. The counsel also produced

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B.A. NO.188 OF 2020 4

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Annexure-VII which is a news item published in the Mathrubhumi daily on 31.12.2019. The counsel submitted that, several cases are registered against the petitioner at the instance of the defacto complainant. The counsel submitted that, the petitioner is ready to abide any conditions, if this Court grant him bail.

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6. The learned public prosecutor seriously opposed the bail application. The public prosecutor submitted that the investigating officer filed a statement in this bail application. In the statement, it is averred that, when the investigating officer visited the house of the petitioner, some people attacked the investigating officer for which, Crime No.1217 of 2019 under Sections 353, 332 r/w. Section 34 IPC is registered. The relevant portion of the said statement is extracted hereunder:

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“During the course of investigation, a detailed statement of the defacto complainant was recorded. I have questioned 8 witnesses and recorded their statements, and seized the video and audio recordings of the offence till date. Earnest efforts have been taken to arrest the accused

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B.A. NO.188 OF 2020 5

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petitioner herein. Enquiry is being continued to trace out the petitioner by collecting call details with the assistance of cyber cell, Aluva.

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During the course of investigation, myself and police party reached the residence of the petitioner at Thonnikka, Kolenchery, Aikkaranadu Village, some identifiable persons restrained me and assaulted, thereby obstructed the official duty of police party. In this connection a case in Crime No.1217 of 2019 under sections 353, 332 and 34 IPC was registered at Puthencruz Police Station. The case is on under investigation stage. In continuation of this incident, the petitioner framed baseless fake news about me and police party and circulated in electronic media by using his wayward media relation. He sends fake petitions to all 140 Hon'ble Assembly Members of Kerala by narrating baseless arguments against me.

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While tracing call particulars, it is revealed that the petitioner Sri.Binu Mathew has frequent contact with one Biji and for investigation while I contacted with Biji's mother and next day Biji was missing and a case was registered at Kothamangalam Police Station as Crime No.108 of 2020 under Section 57 of the Kerala Police Act, on the complaint of Biji's husband Sam, Veembillil House, Chathamattam kara, Kadavoor Village that Biji was missing.

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The petitioner has frequent contact with another girl named Ann Maria Paulose, D/o. Poulose, Kalakkudy House, Inchoor, Varappetty, Kothamangalam Taluk, Ernakulam District, who is a student of U.C.

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B.A. NO.188 OF 2020 6

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College, Aluva. When I contacted with her mother for investigation, the next day Ann Maria missing from her college and a complaint was registered by Smt. Sally Poulose, who is the mother of Miss Ann Maia, at Aluva Police Station and a case is registered in Crime No.43 of 2020 under Section 57 of the Kerala Police Act. After two days of her missing she threatened her mother to kill through petitioner's mobile phone. It is also submitted that Sally Poulose has filed a Habeas Corpus before this Hon'ble Court for illegal custody of Ann Mariya Poulose. On 23.01.2020 Ann Maria Poulose conducted a press meeting at Ernakulam and she spoke against the investigation procedure of Crime No.2667 of 2019 and the investigating officer. After the press meeting, the young lady has been missing from there. It is also revealed that petitioner is now making foul play with her illegal custody and she is enticed into the ring of this petitioner and playing for interrupting the investigation.

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Meanwhile, the petitioner Sri.Binu Mathew again threatened the defacto complainant over phone to settle the case. As he rejected the petitioner's demand, the petitioner released a news against the defacto complainant through Mathrubhoomi News Channel for intimidating the defacto complainant. Miss.Ann Maria, the missing girl also sends several petitions against the investigation officer in the higher-authorities, and the petitioner also sent a complaint against the investigation officer to 140 MLAs in Kerala

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B.A. NO.188 OF 2020 7

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for interrupting the investigation through political pressure.

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If the petitioner is enlarged on bail, he will try to threaten the defacto complainant to settle the matter and he will also try to intimidate the defacto complainant by releasing defaming news against the defacto complainant's hospital. The custody interrogation is very essential for the investigation for recovery of electronics evidences belongs to the petitioner. Therefore prayer before this Hon'ble Court is that the bail application filed by the petitioner devoid of any merits and the same is liable to be dismissed.”

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7. The learned Senior Counsel appeared for the 3^rd respondent submitted that it is a clear case in which Section 384 IPC is made out. The Senior

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Counsel submitted that the petitioner is not entitled orders under Section 438 Cr.P.C.

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8. After hearing both sides, according to me, this is not a fit case, in which the extraordinary jurisdiction under Section 438 of the Cr.P.C. can be invoked. The admitted case of the petitioner is that, he was collecting materials to give a news items in the Mathrubhoomi daily. According to the petitioner, he is a journalist. According to the

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B.A. NO.188 OF 2020 8

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petitioner, he got information that several illegalities and malpractices are there in the hospital conducted by the defacto complainant. A perusal of the complaint submitted by the defacto complainant, it can be seen that the alleged incident happened on 18.10.2019. The F.I.R was registered on 2.11.2019. The crux of the allegation

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is that, the petitioner threatened the defacto complainant that he will publish news against the defacto complainant and his hospital. Subsequently, on 31.12.2019, a news is published in the Mathrubhoomi daily alleging serious allegations against the hospital of the defacto complainant. I do not want to make any observations about the merit

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of the case. If there is any illegality or malpractices in the hospital, as a citizen, the petitioner's duty is to approach the local police and not to collect details for the media. At first the petitioner should approach before the police authorities and if the police authorities are not taking steps, he can reveal the same through media. The conduct of the petitioner cannot be appreciated.

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B.A. NO.188 OF 2020 9

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I leave it there. Considering the entire facts and circumstances of this case, I think, this is not a fit case in which orders under Section 438 Cr.P.C. can be issued.

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9. Moreover, the jurisdiction to grant bail has to be exercised on the well settled principles laid down by the Hon'ble Supreme Court in Chidambaram P. v. Central Bureau of Investigation (AIR 2019 SC 5272). The Apex Court held that, the following factors are to the taken into consideration while considering the application for bail.

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(i) Nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials

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relied upon by the prosecution;

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(ii) Reasonable apprehension of tampering with the witnesses or

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apprehension of threat to the complainant or the witnesses;

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(iii) Reasonable possibility of securing the presence of the accused at

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the time of trial or the likelihood of his

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B.A. NO.188 OF 2020 10

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abscondence;

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(iv) Character, behaviour and standing

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of the accused and the circumstances which

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are peculiar to the accused;

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(v) Larger interest of the public

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or the State and similar other

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considerations.

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It is true that, there is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be decided on the basis of the facts and circumstances of that case. In the light of the general principles laid down in the above judgment and considering the facts and circumstances of this case, I am of the opinion that, this is not a fit case in which

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the petitioner can be released on bail. Hence this Bail Application is dismissed.

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Sd/-

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P.V.KUNHIKRISHNAN

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pkk

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JUDGE

Binu Mathew v. State of Kerala

Case brief

What is this about?

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Binu Mathew v. State of Kerala

Case brief

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