Jobin Sabu vs State Of Kerala

A. Badharudeen, J

This is the second application for anticipatory bail, filed by the 4th accused in Crime No.158/2023 of Kunnikode Police Station.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

I have perused the case diary materials, placed by the learned Public Prosecutor.

The prosecution case is that, at 1.50 hrs on 30.1.2023, the accused formed into unlawful assembly, armed with deadly weapons with knowledge that they are all members of the said assembly, with intention to commit murder of the de facto complainant, thereafter, in prosecution of their common object, they criminally trespassed upon his residential house and assaulted him. Though the de facto complainant sustained multiple serious injuries, he survived. Accordingly, prosecution alleges commission of offences punishable under Sections 143, 147, 148, 452, 294(b), 324, 307, 427 r/w Section 149 of the Indian Penal Code.

It is submitted by the learned counsel for the petitioner further that, eventhough the anticipatory bail plea, at the instance of the petitioner was dismissed as early on 20.2.2023, at the time of consideration of the same, document showing police harassment against the petitioner happened in the year 2021, whereby, the petitioner sustained serious injuries, could not be brought to the notice of this Court. It is also argued that the petitioner has been implicated in the present crime due to police animosity and therefore, the petitioner deserves anticipatory bail.

While strongly opposing anticipatory bail plea at the instance of the petitioner pressed for the second time, it is submitted by the learned Public Prosecutor that the petitioner alleges police harassment during 2021, at the hands of the Cherthala Police and the present crime was registered by Kunnikode Police Station. It is submitted further that, there is no justification to accept the argument of the learned counsel for the petitioner now advanced as an afterthought, on the ground that the petitioner was implicated in this crime, since Kunnikode Police Station is in Kollam District, whereas, Cherthala Police Station is in Alappuzha District. It is also submitted that, the prosecution is well made out prima facie and assault against the de facto complainant at odd hours, shows the special mens rea of the accused to commit murder of the de facto complainant. The learned Public Prosecutor would submit further that, all accused separately used weapons to assault the de facto complainant and the petitioner herein/4th accused alleged to have used a sword stick to assault the de facto complainant and thereby, he sustained corresponding injuries. Therefore, highlighting the necessity of arrest, custodial interrogation and recovery of the weapon at the instance of the petitioner herein, the learned Public Prosecutor opposed the bail.

On perusal of the earlier bail order, in paragraph No.7, this Court observed as under, while dismissing the bail application:

“7. On perusal of the First Information Statement given by the injured/Riyas, the specific allegation is that, at about 1.50 hrs (just after midnight) accused Nos.1 to 5, criminally trespassed upon the residential house of the de facto complainant, where he was fell asleep and awakened, thereafter, he was assaulted. The specific allegation against the petitioner is that, he had assaulted the de facto complainant, by using iron rod and sword stick. The records would go to show that the de facto complainant got admitted at the surgery ward of KIMS Hospital, Thiruvananthapuram, having sustained multiple injuries. Therefore, arrest, custodial interrogation and recovery of the weapon at the instance of the petitioner, are absolutely necessary.”

It is relevant to note that, in this crime, the prosecution alleges commission of very serious offences including one under Section 307 of the Indian Penal Code and there is specific allegation against the 4th accused that he used a sword to assault the de facto complainant and thereby, the de facto complainant sustained very serious injuries and he was admitted and subjected to surgery at KIMS Hospital, Thiruvananthapuram. It is relevant to note further that the petitioner is a person, having criminal antecedents and he is the 1st accused in Crime No. 152/2023 of Kunnikode Police Station, alleging commission of offences punishable under Sections 341, 323, 294(b), 506 r/w Section 34 of the Indian Penal Code and also, he is the 1st accused in Crime No.1650/2021 of Cherthala Police Station, alleging commission of offences punishable under Sections 279, 353, 333 r/w Section 34 of the Indian Penal Code and under Sections 132(1), 179 and 52 of the MV Act and now pending as C.C.No.43/2022 before the Judicial First Class Magistrate Court - 1, Cherthala.

It is interesting in note that the petitioner’s complicity in this matter, by using a weapon, is well established, prima facie. That is the reason why this Court initially dismissed his anticipatory bail plea, holding that his arrest, custodial interrogation and recovery of weapon, at his instance, are necessary. I do not think that if at all the police harassment, as alleged during 2021, that too, in Cherthala Police Station in Alappuzha District has no bearing on the present allegations, wherein, the role of the petitioner is well made out, prima facie. It can only be read as an afterthought being boosted after the dismissal of his earlier bail application. Therefore, there is no reason to hold a different view and as such, the repeated anticipatory bail plea, at the instance of the petitioner will not stand and the same stands dismissed.

The petitioner is directed to surrender before the Investigating Officer, within a period of 7 days and concede the jurisdiction and on failure to do so, the police shall arrest and proceed against the petitioner, under law, without fail.