Abdul Ameer v. State of Kerala and Pazhayannur Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 6[TH] DAY OF OCTOBER 2021 / 14TH ASWINA, 1943 BAIL APPL. NO. 7349 OF 2021** **AGAINST THE ORDER IN SC 173/2021 OF III ADDITIONAL DISTRICT COURT,** **THRISSUR** ## **CRIME NO. 809 OF 2020 OF PAZHAYANNUR POLICE STATION** ## **PETITIONER/ACCUSED NO.1:** ABDUL AMEER, AGED 32 YEARS S/O.MUHAMMED KUTTY, KOODASSERY HOUSE, THINDALAM, THIROOR VILLAGE, EDAYOOR P.O, VALLANCHERRY, MALAPPURAM DISTRICT, PIN-676552. BY ADVS. P.MOHAMED SABAH LIBIN STANLEY SAIPOOJA ## **RESPONDENTS/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 THE STATION HOUSE OFFICER PAZHAYANNUR POLICE STATION, THRISSUR DISTRICT, PIN-680587. BY ADVS. DIRECTOR GENERAL OF PROSECUTION SAJJU.S SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR ## **OTHER PRESENT:** SAJJU.S- SR.PP B.A.7349/2021 2 THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON 06.10.2021 PASSED THE FOLLOWING: B.A.7349/2021 3 ## **ORDER** Dated this the 6[th] day of October, 2021 Application for regular bail filed under Section 439 of the Code of Criminal Procedure. 2. The petitioner is the 1[st] accused in S.C. No. 173 of 2021 on the file of the 3[rd] Additional Sessions Court, Thrissur, arising from Crime No. 809 of 2020 of Pazhayannur Police Station. 3. The prosecution allegation is as follows: This petitioner along with accused Nos. 2 and 3, on 12.10.2020 at about 10 a.m., trespassed into the residential house of the deceased with the intention to commit murder of the deceased, Muhammed Rafiq, and his friend Fasil, the injured, and attacked them with deadly weapons and murdered Muhammed Rafiq and attempted to cause murder of his friend Fasil and thereby committed the aforesaid offences. B.A.7349/2021 4 4. The petitioner has been in custody since 13.10.2020. 5. The case put forth by the learned counsel for the petitioner is that the injured, who is on inimical terms with the petitioner, has falsely implicated him as well the other accused and thus he has been booked in the case. In fact he has not committed any offence as alleged by the prosecution. But he is undergoing incarceration since the date of his arrest. 6. On the other hand, the learned Public Prosecutor has submitted that very serious allegations are there against this petitioner. In fact, this petitioner as well the other accused are persons engaged with peddling of narcotic items. So this petitioner, on a wrong notion that the deceased has given intimation to the police regarding his involvement in narcotic items, with the intention to commit his murder trespassed into his residential house during midnight with deadly weapons along with other accused and caused fatal injuries on him. The weapon used by the accused was a hard wooden stick having B.A.7349/2021 5 nails. With that weapon, the deceased was beaten to death. The injured had also sustained serious injuries in the attack by the petitioner as well as by the other accused, when he tried to rescue the deceased. 7. The learned Public Prosecutor has also produced the postmortem certificate of the deceased for reference. It is specifically pointed out that this petitioner is involved in several crimes registered before Pazhayannur and Valanchery Police Station and the other accused, is also having criminal antecedents. Hence, granting of bail at this stage is strenuously opposed by the learned Public Prosecutor. 8. Heard the learned counsel for the petitioner as well the learned Public Prosecutor. 9. The alleged incident was on 12.10.2020 and the records would reveal that this petitioner was arrested on 13.10.2020. The postmortem certificate would indicate that the deceased had sustained 16 ante-mortem injuries. His death was due to the head injury. Most of the other injuries are lacerated puncture B.A.7349/2021 6 wounds which prima facie indicate that he was beaten with nailed wooden log as alleged by the prosecution. In fact the attack was also after committing house trespass at midnight. The prosecution records would reveal that the deceased was brutally attacked by the petitioner and the other accused four in number on a wrong notion that he had given intimation to the police about this petitioner and the 4[th] accused in their dealings with narcotic drugs and smuggling. This petitioner as well as the other accused are involved in very serious offences such as attempt to murder, gang robbery, immoral trafficking, house breaking, dealings with narcotic items etc and hence the records would reveal that this petitioner is a history-sheeter. 10. The Supreme Court has laid down the principles governing grant of bail in **Prasanta Kumar Sarkar** v. **Ashis Chatterjee and Another** [(2010) 14 SCC 496]. In paragraph 9, it is stated as follows: “ 9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while B.A.7349/2021 7 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)_ likeliood of the offence being repeated; _(vii)_ reasonable apprehension of the witnesses being influenced; and ( _viii_ ) danger, of course, of justice being thwarted by grant of bail.” Again the Supreme Court, after reiterating the above said decision, in **Mahipal** v. **Rajesh Kumar Alias Polia and Another** [(2020) 2 SCC 118] observed as follows: “14. …..... The Court is required to factor, amongst other other things, a prima facie view that the accused had committed B.A.7349/2021 8 the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail drawn an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-bycase basis. …......” 11. As the investigation of the case is over, normally, an accused in a case can be released on bail. But here, the records would indicate the brutal nature of the offences committed by this petitioner along with the other accused. Prima facie, the postmortem examination would show the brutality of the offences committed by this petitioner along with the other accused after trespassing into the residential house in the midnight. In such a case, the apprehension expressed by the learned Public Prosecutor that there is every possibility to B.A.7349/2021 9 intimidate the witnesses to the prosecution so as to compel them not to disclose the real facts before the court, appears to be quite genuine. Moreover, the defacto complainant, who sustained injuries along with the deceased is the prime witness in the case. As this petitioner is a hardcore criminal, if he is released on bail, definitely, he will intimidate the defacto complainant as well the other witnesses. So, the nature of the accusations leveled against the petitioner, the manner in which the murder was committed by him etc., would show that custodial trial of the case is quite necessary to ensure the safety of the witnesses. A witness is supposed to depose the real facts before the court without any fear and intimidation from any corner. But, here, if the petitioner is released on bail, he will definitely repeat such offences and the possibility to intimidate and threaten the witnesses cannot be ruled out. The court is supposed ensure the safety of the witnesses and I think that it is not safe for the witnesses and for the free and smooth flow of the trial of the case, to release him on bail. If he is set at liberty B.A.7349/2021 10 on bond, there is also no guarantee that he will co-operate with the trial of the case. For all these reasons, I find that this petitioner do not deserve to be released on bail before completion of the trial of the case. Dismissed. Sd/- SHIRCY V JUDGE sb