Dismissed

Bijumon Varghese v. State of Kerala

Kerala HC17 Mar 2023Bail Appl./928/2023

Case brief

AI extract

What is this about?

The High Court of Kerala dismissed connected bail applications filed by multiple accused persons. The bench held that the serious allegations of robbery, causing hurt, and property theft, coupled with the inability of deemed custody to ensure recovery of stolen articles, precluded the grant of bail.

What did the court decide?

Bail applications stood dismissed; accused to concede jurisdiction of the Investigating Officer.

Bijumon Varghese Vs State of Kerala — Bail and Remand | Kerala HC (2023)

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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 A. BADHARUDEEN FRIDAY, THE 17^TH DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 BAIL APPL. NO. 928 OF 2023

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CRIME NO.1015/2022 OF INFOPARK POLICE STATION, ERNAKULAM

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PETITIONER/1ST ACCUSED:

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BIJUMON VARGHESE AGED 42 YEARS S/O VARGHESE, VALIYAMALIKAPURATH, PERUNNA.P.O., CHANGANASSERY, KOTTAYAM, PIN - 686101 BY ADVS. A.RAJASIMHAN VYKHARI.K.U SRUTHY K K P.VIJAYA BHANU (SR.)(K/421/1984)

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RESPONDENT/STATE:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ADDL. R2 SUDHEESH S AGED 32 YEARS S/O.SURENDRAN, SUDHEESH BHAVAN, MANNENGOD P.O., PALAKKAD DISTRICT

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IS IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED 17.03.2023 IN CRL.M.A.NO.2 OF 2023 BY ADV SHIBA M SAMUEL BY SRI.P.G.MANU, SR.PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07.03.2023 ALONG WITH B.A.No.1004/2023, B.A.NO.1140/2023 AND 1161/2023, THE COURT ON 17.03.2023 DELIVERED THE FOLLOWING:

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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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 A. BADHARUDEEN

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FRIDAY, THE 17^TH DAY OF MARCH 2023 / 26TH PHALGUNA, 1944

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BAIL APPL. NO. 1004 OF 2023

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CRIME NO.1015/2022 OF INFOPARK POLICE STATION, ERNAKULAM

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PETITIONER/ACCUSED NO.2:

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SALAHUDEEN O M AGED 35 YEARS S/O K. MOHAMMED, OLIKUZHIYIL HOUSE, PADAMUGAL, THRIKKAKARA WEST P O, ERNAKULAM, PIN - 682030

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BY ADVS. S.RAJEEV V.VINAY M.S.ANEER SARATH K.P. PRERITH PHILIP JOSEPH ANILKUMAR C.R.

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RESPONDENTS/STATE:

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1 STATE OF KERALA

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REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

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2 STATION HOUSE OFFICER INFOPARK POLICE STATION, ERNAKULAM, PIN - 682042 ADDL. R3 SUDHEESH S, AGED 34 YEARS, S/O. SURENDRAN, SUDHEESH BHAVAN, MANNENGOD P.O., PALAKKAD DISTRICT IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 17.03.2023 IN CRL.M.A.NO.1/2023

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BY ADVS.

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P.G.MANU, SR.PUBLIC PROSECUTOR SHIBA M SAMUEL

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07.03.2023 ALONG WITH B.A.No.928/2023, B.A.NO.1140/2023 AND 1161/2023, THE COURT ON 17.03.2023 DELIVERED THE

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BAIL APPL. NOS. 928 OF 2023

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& Connected cases

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FOLLOWING:

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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 A. BADHARUDEEN

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FRIDAY, THE 17^TH DAY OF MARCH 2023 / 26TH PHALGUNA, 1944

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BAIL APPL. NO. 1140 OF 2023

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CRIME NO.1015/2022 OF INFOPARK POLICE STATION, ERNAKULAM

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PETITIONER/DEFACTO COMPLAINANT:

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1 YASAR.P.J., AGED 27 YEARS S/O JAMAL, PULIKKUZHY, MUNDAMPALAM, THRIKKAKARA.P.O., ERNAKULAM, PIN - 682021

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2 NISHAD.E.A., AGED 35 YEARS, S/O ALI.E.A., ERAKATTIL, MILLUPADI, MUPPATHADAM.P.O., ERNAKULAM, PIN - 683110

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3 RISHAD.K.M., AGED 38 YEARS S/O MOHAMMED SHAREEF, RAZRISH VILLA, ELLATHUNAGAR, PALLURUTHI, P.O., ERNAKULAM, PIN - 682006 4 SHAFEEKKALI.K.M. AGED 32 YEARS, S/O MOHAMMED KUNJU, KALAPPURACKAL, HMT REHABILITATION AREA, KALAMASSERY.P.O., ERNAKULAM, PIN - 683503 BY ADVS. A.RAJASIMHAN VYKHARI.K.U

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RESPONDENTS/STATE:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ADDL.R2 SUDHEESH S, AGED 32 YEARS, S/O. SURENDRAN, SUDHEESH BHAVAN, MANNENGOD P.O., PALAKKAD DISTRICT IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 17.03.2023 IN CRL.M.A.NO.1/2023 BY ADV SHIBA M SAMUEL BY P.G.MANU, SR.PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07.03.2023 ALONG WITH B.A.No.928/2023, B.A.NO.1004/2023 AND

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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1161/2023, THE COURT ON 17.03.2023 DELIVERED THE FOLLOWING:

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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 A. BADHARUDEEN FRIDAY, THE 17^TH DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 BAIL APPL. NO. 1161 OF 2023

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CRIME NO.1015/2022 OF INFOPARK POLICE STATION, ERNAKULAM PETITIONER/4TH ACCUSED:

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SHAFEEQ.U.H. AGED 34 YEARS S/O HAMSA.U.M., ULLAMPILLY HOUSE, KAKKANAD.P.O., ERNAKULAM, PIN - 682030 BY ADVS. A.RAJASIMHAN VYKHARI.K.U

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RESPONDENT/STATE:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ADDL.R2 SUDHEESH S AGED 32 YEARS, S/O. SURENDRAN, SUDHEESH BHAVAN, MANNENGOD P.O., PALAKKAD DISTRICT IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 17.03.2023 IN CRL.M.A.NO.1/2023 BY ADV SHIBA M SAMUEL BY SMT.T.V.NEEMA, SR.PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07.03.2023 ALONG WITH B.A.NO.928/2023, B.A.No.1004/2023 AND B.A.NO.1140/2023, THE COURT ON 17.03.2023 DELIVERED THE FOLLOWING:

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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COMMON ORDER

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Dated this the 17^th day of March, 2023

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[B.A.Nos.928, 1004, 1140 and 1161 of 2023]

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In these petitions, the following accused seek the relief of

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pre-arrest bail.

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B.A.No.928 of 2023–A1, 2. B.A.No.1004 of 203-A2, 3. B.A.No.1140 of 2023 – A3, A12, A10 and A5, 4. B.A.No.1161 of 2023 -A9

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The petitioners herein are accused as referred herein above in crime No.1015/2020 of Infopark Police Station, Ernakulam.

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Heard the learned counsel for the respective petitioners, the learned counsel for the defacto complainant and the learned Public Prosecutor.

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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I have perused the case diary as such and the

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documents placed by the learned counsel for the respective petitioners and the defacto complainant.

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Shown off unnecessary averments, the prosecution allegation is that, at about 1.15 pm on 23.12.2022, the accused herein criminally trespassed upon the office of the defacto complainant where ‘Brawny Brute' Family Studio Health and Bautique Clinic' has been functioning and thereafter, the first accused beat the defacto complainant and his staff by using a hammer and a wooden stick and thereby the first accused forcefully obtained a cheque signed by the defacto complainant. The further allegation is that the accused herein robbed away the files, laptop, treatment equipment, i20 car bearing registration No.KL-40-L 3141, ATM card, gold, dress, speaker to the tune of Rs.14,80,000/-. The further allegation is that they have poured salt at the office of the defacto complainant so as to make it appear the same as

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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MDMA along with injections and narcotic drugs and thereafter taken the photographs of the defacto complainant along with those items with intimidation that those photographs would be used to show the defacto complainant as a person engaged in sale of the Narcotic Drugs and Psychotropic Substances. It is alleged further that they beat the defacto complainant and thereby the defacto complainant sustained injuries on his face and eyes. According to the defacto complainant/prosecution, the accused herein was there at the office at 6 pm and all the accused jointly involved in this crime. Pursuant to forwarding of a complaint lodged by the defacto complainant before the Deputy Commissioner of Police as on 24.12.2022, crime was registered at 11.35 pm on 23.12.2022 alleging that the accused herein committed offences punishable under Sections 452, 324, 328, 395, 427 and 506(ii) read with Section 212 of IPC.

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Adv. P.Vijaya Bhanu, the learned Senior counsel

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appearing for the 1^st accused would submit that the petitioner/1^st accused is innocent and the entire allegations are false. According to the learned counsel, the defacto complainant owed amount to the petitioner and for which he had issued Annexure A3 cheque bearing date 05.01.2023 for Rs.8,00,000/- on 15.07.2022 and thereafter, a false case is foisted to contend that the said cheque was robbed away by the petitioner/1^st accused herein, after threatening and intimidating him with a view to avoid payment covered by the cheque. It is also argued that even though the prosecution

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alleges presence of 30 persons at a prime locality in Kakkanadu Seaport-Airport road where ‘Brawny Brute' Family Studio Health and Bautique Clinic' has been functioning, the police could not even find a CCTV footage of the gathering and involvement of 30 persons in this occurrence and the same shows the falsity of the case. It is submitted by the

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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learned counsel for the petitioner further that the second petitioner Salahudeen is a political leader and the Local Committee member of CPI(M) Party and he intervened in this matter as a mediator to settle the financial dispute in between the first accused and the defacto complainant and the occurrence as alleged by the prosecution is absolute falsity, for which no materials could be gathered. On this premise, the learned counsel for the petitioner/1^st accused would submit that the petitioner is liable to be released on anticipatory bail and he is ready to be abide by any conditions and the recovery, if any, can be effected while he will be on deemed custody of the Police after his surrender, if such a direction is given.

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Adv. S.Rajeev, the learned counsel appearing for the second accused, Sri.Salahudheen, also highlighted the absolute innocence of the second accused in this matter. According to the learned counsel, the second accused is a

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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person with good track records as a politician and he never involved in this crime and his role is that of a mediator to settle the financial dispute in between the defacto complainant and the first accused, and the entire allegations are false. The learned counsel also offered co-operation in the matter of investigation in tune with the argument advanced by the learned Sr. counsel Adv.P.Vijaya Bhanu.

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Adv.Rajasimhan appearing for the other petitioners

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herein also shared the same argument.

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It is submitted by Adv.S.Rajeev further that the defacto complainant is a person engaged in many illegal activities and he is in the habit of obtaining money by illegal means. He has placed reliance on Annexure A5, copy of complaint lodged by one A.R.Rekha and Sarath, Alinkal House, Vaduthala dated 28.11.2022 before the Assistant Police Commissioner, Thrikkakara, acknowledged by the

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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Assistant Commissioner as per receipt dated 28.11.2022 at 5:02:23 pm to substantiate the said fact. The learned counsel narrated the complaint pointing out the nature of deals at the instance of the petitioner and demand of money from A.R.Rekha and Sarath by coercion. The learned counsel pointed out this aspect to contend that the petitioner is a person, who would go to any extent to achieve ulterior motives and therefore, the prosecution case at his instance that was lodged on the second day of occurrence, after narrating the same as an accident, after initial stage, cannot be believed.

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The learned counsel appearing for the defacto complainant filed a detailed objection supported by certain documents. In the said objection, the defacto complainant precisely narrated the events, including procurement of cheque by the first accused from the defacto complainant to the tune of Rs.8,00,000/-. The learned counsel also placed receipt showing lodging of complaint as on 24.12.2022 at

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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09:05:46 pm before the City Police which led to registration of this FIR. The learned counsel also placed GPS route map picture to contend that i120 car bearing registration No.KL-40L 3141 was recovered from accused No.4 by the Investigating Officer.

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The learned Public Prosecutor also supported the prosecution case based on the materials available in the case diary. The learned Public Prosecutor given heavy reliance on the additional statement given by the defacto complainant reiterating the occurrence and in the said statement, he disclosed that the gold robbed away by the accused would come to 10 ¾ and the amount involved would come to Rs.43,00,000/-. The learned Public Prosecutor also highlighted Gunda activities in the city and involvement of accused Nos.7 and 8 in crime No.83/2023 of Thrikkakara police station involving offences punishable under Sections 143, 147, 148, 323, 324 and 326 read with Section 149 of IPC.

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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But no criminal antecedents reported in so far as the other accused persons are concerned.

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While allaying the controversy by addressing the arguments advanced by the respective counsel, including the learned Public Prosecutor, in this case, the occurrence was at 1.15 pm on 23.12.2022 and the place of occurrence is ‘Brawny Brute' Family Studio Health and Bautique Clinic' run by the defacto complainant.

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It is zealously argued by the learned counsel for the defacto complainant and the learned Public Prosecutor that the defacto complainant sustained serious injuries, as a result of attack at the instance of the petitioners and for which they have given emphasis to the medical documents forming part of the case diary.

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On perusal of the wound certificate prepared at Sunrise Hospital, Kakkanadu at 6.26 pm on 23.12.2022, the

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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one and only injury noted by clinical examination is injury peri orbital area. As per the observation in this wound certificate, even though CT scan examination was advised, the defacto complainant did not heed the same and accordingly, it was stated in the wound certificate that “CT Head (not willing)”. It is to be noted that thereafter, the defacto complainant met Doctor at MAJ Hospital, Edapally on 25.12.2022 in the morning and CT Scan examination in the face of defacto complainant was done. The impression in the CT Scan report are as under:

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Possible undisplaced fractures noted in roofmedial wall of right orbit.

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Pneumo-orbit noted on right

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Polypoidal mucosal thickening noted in bilateral maxillary sinus

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Based on the CT Scan study, undisplaced fractures

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noted in roof-medial wall of right orbit was diagnosed.

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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The learned counsel for the defacto complainant would submit that the defacto complainant sustained serious injuries including fracture as noted in the wound certificate and CT Scan taken on 25.12.2022. The learned counsel for the defacto complainant placed photographs alleging that of the defacto complainant showing blood on the left ear and left eye of the defacto complainant to show the seriousness of the injuries sustained to the defacto complainant. The learned counsel for the defacto complainant also argued that since the articles taken away are required to be recovered in the matter, arrest, custodial interrogation and recovery of weapon are essential part of the investigation and in such a case, grant of anticipatory bail would spoil the investigation.

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Here, the prosecution allegation is that at about 1.15 pm on 23.12.2022, the accused herein criminally trespassed upon the office of the defacto complainant where ‘Brawny Brute' Family Studio Health and Bautique Clinic' has

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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been functioning and thereafter, the first accused beat the defacto complainant and his staff by using a hammer and a wooden stick and thereby forcefully obtained a cheque signed by the defacto complainant. The further allegation is that the accused herein robbed away the files, laptop, treatment equipment, i20 car bearing registration No.KL-40-L 3141, ATM card, gold, dress, speaker to the tune of Rs.14,80,000/-. The further allegation is that they have poured salt at the office of the defacto complainant so as to make it appear the same as MDMA along with injections and narcotic drugs and thereafter taken the photographs of the defacto complainant along with those items with intimidation that those photographs will be used to show the defacto complainant as a person engaged in the sale of the Narcotic Drugs and Psychotropic Substances. It is alleged further that they beat the defacto complainant and thereby the defacto complainant sustained injuries on his face and eyes. According to the defacto complainant/prosecution,

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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the accused herein was there at the office at 6 pm and all the accused jointly involved in this crime. Pursuant to forwarding of a complaint lodged by the defacto complainant before the Deputy Commissioner of Police as on 24.12.2022, crime was registered at 11.35 pm on 23.12.2022 alleging that the accused herein committed offences punishable under Sections 452, 324, 328, 395, 427 and 506(ii) read with Section 212 of IPC.

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Thus, it appears that on the next day of occurrence, the defacto complainant lodged complaint after his medical consultation at Sunrise Hospital. Though it is argued by the learned counsel for the petitioners that the petitioners are innocent and there was a mediation talk to settle the financial dispute between the defacto complainant and the first accused, presence of other accused also as stated by the defacto complainant is a matter which would favour the prosecution case. If at all, mediation talk was the intention of

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& Connected cases

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presence of the first and second accused at the place of occurrence would suffice, but the presence of the other accused at the place of occurrence shadows doubt regarding the so called mediation. At present, in this crime, there are 13 accused and out of which A6, A7 and A8 were arrested and arrest of the other accused including the petitioners not effected so far. In this case, serious allegation as to procurement of office files, laptop, treatment equipment, purse, ATM cards, gold ornaments, dress, speaker and i20 car bearing registration No.KL-40-L 3141 used by the defacto complainant belonged to the relative of the defacto complainant are forcefully taken away. The specific case of the defacto complainant is that a cheque was forcefully got signed after threat even though it is specifically stated by the learned counsel for the first accused that it was a cheque issued as early as on 15.05.2022. Therefore, the allegations are very serious and the treatment records of the defacto

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BAIL APPL. NOS. 928 OF 2023 & Connected cases

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complainant would show serious injuries also to him. The argument advanced by the learned senior counsel for the first accused, supported by the respective counsel for other accused, is that, if at all, such an occurrence happened, there might be CCTV visuals and the prosecution even failed to collect any CCTV visuals or the defacto complainant also failed to provide the same, cannot be appreciated to disbelieve the prosecution case, prima facie . In this connection, it is argued by the learned counsel for the petitioners further that the petitioners are ready to co-operate with the investigation and also the Investigating Officer can question the petitioners and recover the articles, if any, during deemed custody, after surrender, and therefore, imposing such conditions, the petitioners may be released on bail.

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It is true that as per the ratio in A.I.R. 2020 S.C. 831 [Sushila Aggarwal & others v. State (NCT of Delhi) and ors.] and AIR 1980 SC 1632 [ Gurbaksh Singh Sibbia &

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Others v. State of Punjab], ' deemed custody' for the purpose of investigation is permissible. In the case at hand, such a course of action found to be insufficient to effect recovery since the prosecution allegation is to the effect that many articles herein above referred were taken away on the date of occurrence. If so, anticipatory bail plea at the instance of the petitioners cannot be considered. Therefore, they shall concede the jurisdiction of the Investigating Officer.

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In the result, these bail applications stand dismissed.

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Sd/A. BADHARUDEEN JUDGE

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nkr

Bijumon Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

Bijumon Varghese v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

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