IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl..No. 573 of 2010()
1. TOMY NATHEW, AGED 52 , S/O.MATHAI,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.C.P.UDAYABHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice K.T.SANKARAN
Dated :01/03/2010
O R D E R
K.T.SANKARAN, J.
------------------------------------------------------
B.A. NO. 573 OF 2010
------------------------------------------------------
Dated this the 1st day of March, 2010
O R D E R
This is an application for anticipatory bail under Section 438 of
the Code of Criminal Procedure. The petitioner is accused No.1 in
Crime No.16 of 2010 of Kothamangalam Police Station.
2. The offences alleged against the petitioner are under
Sections 143, 147, 148, 324, 326 and 308 read with Section 149 of
the Indian Penal Code and Sections 3(a) and 5 of the Explosive
Substances Act.
3. The prosecution case is that on 6.1.2010 at about 3 PM,
about ten persons under the leadership of the petitioner, armed with
deadly weapons and explosive substances like country bombs,
trespassed into the property belonging to Pauly Mathew, the brother
of the petitioner herein, and attacked the de facto complainant
Soman, a contractor employed by Pauly Mathew, and his workers. It
is alleged that the accused persons hurled country bombs and gunds
on the victims and assaulted them with iron rods, wooden reapers
B.A. NO. 573 OF 2010
:: 2 ::
and chopper. One Dileep Kumar, an employee, sustained fracture.
He had to undergo a surgical operation. One Venkitesh sustained
burn injuries. Two other employees, namely, Muniyandi and
Velmurugan, also sustained injuries.
4. The petitioner moved the Court of Sessions, Ernakulam
under Section 438 of the Code of Criminal Procedure. That
application was dismissed by the learned Sessions Judge as per the
order dated 25.1.2010.
5. Tomy Mathew, the petitioner herein, and Pauly Mathew are
brothers. The learned counsel for the petitioner submitted that they
and other brothers are running a resort at Kovalam under the name
and style “Somatheeram”. There are disputes among the brothers.
Several disputes are pending between the petitioner and Pauly
Mathew. In respect of an extent of 2 and odd acres at Nadukani,
within the limits of Kothamangalam Police Station, it would appear
that there is dispute between the petitioner and Pauly Mathew.
Pauly Mathew had engaged the de facto complainant, the Managing
Director of Born Builders Private Limited to construct a farm resort in
the property. The construction activities were going on. It is alleged
B.A. NO. 573 OF 2010
:: 3 ::
that the incident on 6.1.2010 occurred as a result of the rivalry
between the petitioner and Pauly Mathew.
6. Sri.C.P.Udayabhanu, the learned counsel appearing for the
petitioner, submitted that the petitioner is falsely implicated in the
case on account of the rivalry between the petitioner and Pauly
Mathew. The petitioner is the Manager of Catholic Syrian Bank.
Several disputes are pending between them. It is submitted that on
6.1.2010, while the petitioner was travelling in a car, around fifty
people intercepted the car and attacked him and forcibly took away
the car. On a petition filed by the wife of the petitioner, Crime No.23
of 2010 was registered by the Kothamangalam Police. According to
the petitioner, Crime No.16 of 2010 was registered on a false
allegation, in order to escape from the consequences of the offence
alleged in Crime No.23 of 2010.
7. The de facto complainant is represented by counsel.
Before the learned Sessions Judge also, the de facto complainant
was heard. Senior Advocate Sri.M.K.Damodaran appearing for the
de facto complainant submitted that several crimes were registered
in 2004, 2005 and 2009 against the petitioner. The Senior counsel
B.A. NO. 573 OF 2010
:: 4 ::
submitted that only to deter Pauly Mathew from constructing the
resort, the accused persons had resorted to such heinous offences
as mentioned in the First Information Statement.
8. The wife of the petitioner had filed the petition which led to
the registration of Crime No.23 of 2010, only to escape from the
offences committed by the petitioner. The claim of the petitioner that
he is the Manager of Catholic Syrian Bank is disputed by the de
facto complainant. It is stated that he is only a clerical staff in the
Catholic Syrian Bank and he is not in the habit of attending to his
duties regularly. It is also stated that the petitioner is the Secretary
of the Communist Party of India (Marxist), Kothamangalam East
Branch and he is a very influential person. Only because of his
political influence, the petitioner is not arrested so far. It was also
pointed out that the police is taking a very “mild attitude favouring the
petitioner”. It is also pointed out that the petitioner along with certain
goondas had thrown country bombs on Pauly Mathew on 12.1.2010.
9. Advocate Sri.C.P.Udayabhanu stated that there is a delay
of three days in preparing the scene mahazar. The scene mahazar
was prepared only on 9.1.2010. This itself shows that the case was
B.A. NO. 573 OF 2010
:: 5 ::
foisted against the petitioner and others. Sri.Udayabhanu also
submitted that the accident register-cum-wound certificate in respect
of Dileep Kumar shows that the fracture was occasioned as a result
of a fall while running. The counsel also submitted that Dileep
Kumar was allegedly treated in another hospital subsequently and it
is very suspicious. Only to create medical records to show that a
grave crime was committed, Dileep Kumar was shifted to another
private hospital.
10. The learned Public Prosecutor submitted that three
unexploded country bombs and one “gundu” were recovered from
the scene of occurrence. The police had recovered the Toyota
Qualis vehicle owned by the petitioner, which was found at the scene
of occurrence. The Bomb Disposal Squad came to the scene of
occurrence and diffused the unexploded bombs. Immediately after
the incident, the police sent a message to the Deputy Controller of
Explosives. Only in the presence of the experts in explosives, the
mahazar could be prepared and that was the reason why delay was
occasioned in preparing the scene mahazar. It is pointed out that
without the presence of the experts, had the police entered into the
scene of occurrence for preparing the scene mahazar, sometimes,
B.A. NO. 573 OF 2010
:: 6 ::
many material pieces of evidence would have been tampered with
or lost. Only the experts in the field could secure a proper recovery
of the incriminating articles after visiting the scene of occurrence.
The learned Public Prosecutor also submitted that the proper and
effective investigation of the case would not be affected by any
political clout which the petitioner is allegedly having. It was also
submitted by the learned Public Prosecutor that, on investigation, it
was found that the incident alleged by the wife of the petitioner, as
the de facto complainant in Crime No.23 of 2010, is false.
11. The offences alleged against the petitioner and the other
accused are grave in nature. The allegation is that the accused
persons hurled country bombs and other explosive substances and
created a situation of terror at the scene of occurrence. Thereafter,
the de facto complainant and his workers, who are not involved in
the dispute between the petitioner and Pauly Mathew, were attacked
by the accused persons with dangerous weapons. Many of them
sustained injuries. The medical records show that one Dileep Kumar
sustained fracture and he had to undergo a surgery. One Venkitesh
sustained burn injuries. Two other persons also sustained injuries.
B.A. NO. 573 OF 2010
:: 7 ::
12. Taking into account the facts and circumstances of the
case, the nature and gravity of the offence and the allegations
levelled against the petitioner, I do not think that this is a fit case
where anticipatory bail can be granted to the petitioner. Custodial
interrogation of the petitioner may be required in the case. If
anticipatory bail is granted to the petitioner, it would adversely affect
the proper investigation of the case. I am of the view that the
petitioner is not entitled to the discretionary relief under Section 438
of the Code of Criminal Procedure.
For the aforesaid reasons, the Bail Application is dismissed.
(K.T.SANKARAN)
Judge
ahz/