Abdul Jaleel Babu and Jamshad P.P v. State of Kerala

B.A No.3997 of 2024 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3997 OF 2024 ``` ``` CRIME NO.266/2024 OF Tirur Police Station, Malappuram ``` ## **`PETITIONER/S:`** ``` 1ABDUL JALEEL BABU, AGED 46 YEARS S/O. HASSAN KUTTY, PUTHUPARAMBIL HOUSE KARATHUR, KODAKKAL P.O, TIRUR,MALAPPURAM DISTRICT, PIN - 676108 ``` ``` 2JAMSHAD P.P AGED 29 YEARS S/O HASSAN KUTTY, PUTHUPARAMBIL HOUSE KARATHUR, KODAKKAL P.O, TIRUR MALAPPURAM DISTRICT, PIN - 67610 ``` ``` BY ADVS. P.K.VARGHESE M.T.SAMEER DHANESH V.MADHAVAN JERRY MATHEW NAMITHA K.S. DEVIKA K.R. ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Sri C.S Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No.3997 of 2024 2 ## **C.S.DIAS,J** **====================== Bail Application No.3997 of 2024 ----------------------------------Dated this the 22[nd] day of May, 2024** ## **ORDER** The application is filed under Sec.439 of the Code of Criminal Procedure by the accused 1 and 2 in Crime No.266/2024 of the Tirur Police Station, Malappuram, which is registered against them, for allegedly committing the offence punishable under Section 302 of the Indian Penal Code. The petitioners were arrested on 2.5.2024. 2. The gravamen of the prosecution case is that: on 15.2.2024, at around 18.15 hours, while a person named Abdul Rasheed (deceased), who was the accused in crime No.252/2024 of the very same Police Station, was standing in front of a beverages shop at Tirur KG Padi, the accused 1 and 2, out of the previous animosity B.A No.3997 of 2024 3 towards the deceased, who had sexually assaulted the daughter of the first accused, brutally assaulted and caused grievous injury to him. Immediately after the assault, the deceased was arrested and was remanded to judicial custody in crime No.252/2024. The jail authorities on finding the deceased to be sick, took him to the Tirur District Government Hospital. However, on 17.2.2024 at around 20.13 hours, the deceased succumbed to the fatal injuries. Thus, the accused have committed the above offences. 3. Heard; Sri. P.K Varghese, the learned counsel appearing for the petitioners and Sri.C.S Hrithwik, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioners vehemently argued that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. In fact, the deceased was arrested by the Police in B.A No.3997 of 2024 4 Crime No.252/2024 on the very same day and was remanded to judicial custody. While the deceased was in judicial custody that he succumbed to the injuries. Actually, while the deceased was produced before the jurisdictional Magistrate, he was subjected to medical examination and no injuries were noticed on his body. It was after two days that he succumbed to the injuries. The very fact that the Investigating Officer had issued Sec.41A Cr.P.C notice to the petitioners proves the falsity in the crime. In fact, the petitioners had approached this Court and filed BA No.2852/2024, for an order of pre-arrest bail. By Annexure-3 order, this Court closed the application by directing the Investigating Officer to issue Sec.41A notice to the petitioners. It is subsequent to receiving the notice the petitioners appeared before the Investigating Officer, but they were arrested. There is no material to substantiate that the deceased lost his life as alleged by the prosecution. The petitioners have been in judicial B.A No.3997 of 2024 5 custody since 2.5.2024, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioners may be enlarged on bail. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that the deceased was remanded to judicial custody to the Sub Jail, Tirur, on 16.2.2024 as he was the accused in crime No.252/2024, for allegedly committing the offences punishable under Secs.354A(1)(i) of the Indian Penal Code and Secs.7 and 8 of the POCSO Act. While he was in judicial custody, he was noticed vomiting. Accordingly, he was taken to the District Hospital for treatment. By the time the doctors examined him, he was found to be dead. In the investigation it was unveiled that the deceased had outraged the modesty of the daughter of the first petitioner/first accused in a private bus. The crew of the bus had informed the B.A No.3997 of 2024 6 matter to the first accused. While they were proceeding to the Police Station, they saw the deceased standing in front of a beverages shop. Then, the first accused had an altercation with the deceased and hit him and he fell on the ground. Someone had alerted the Sub Inspector of Police who reached the spot on time and arrested the deceased. But, by that time the accused had brutally assaulted the deceased. The CCTV footages recorded from the camera of the Beverages Outlet clearly shows the active involvement of the petitioners in the crime. The postmortem certificate establishes the nature of the grievous injuries suffered by the deceased. The investigation is only at its nascent stage. If the petitioners are enlarged on bail, there is every likelihood of them torpedoing the investigation and intimidating the witnesses, which will prejudice the prosecution. Hence, the bail applications may be dismissed. B.A No.3997 of 2024 7 6. The gravamen of the prosecution allegation is that, on 15.2.2024, the accused 1 and 2 had brutally assaulted the deceased, due to their previous animosity towards him because he had allegedly molested the daughter of the first accused. The materials on record prima facie substantiate the prosecution allegation to be correct. The postmortem certificate corroborates with the nature of the accusations levelled against the accused. However, that is a matter to be investigated and to be proved at the time of trial. Indisputably, the petitioners were only arrested on 2.5.2024, which is less than 20 days. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding thus: “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and B.A No.3997 of 2024 8 strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while 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_ ) likelihood 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”. ## 8. in **Chandra Sarkar v.** Similarly, **Kalyan Rajesh Ranjan,** [(2004) 7 SCC 528], the Honourable Supreme Court observed thus: “11.The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: ( _a_ ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. ( _b_ ) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. B.A No.3997 of 2024 9 ( _c_ ) Prima facie satisfaction of the court in support of the charge. (See _Ram Govind Upadhyay_ v. _Sudarshan Singh_ [(2002) 3 SCC 598] and _uran_ v. _Rambilas_ [(2001) 6 SCC 338.) # 9. In **Neeru Yadav v. State of U.P and another** ## [(2016) 15 SCC 422], the Hon'ble Supreme Court has ## held as under: “ 13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus: "Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters [Alfred Howard, The Beauties of Burke (T. Davison, London) 109]." 14. E. Barrett Prettyman, a retired Chief Judge of US Court of Appeals had to state thus: "In an ordered society of mankind there is no such thing as unrestricted liberty, either of nations or of individuals. Liberty itself is the product of restraints; it is B.A No.3997 of 2024 10 inherently a composite of restraints; it dies when restraints are withdrawn. Freedom, I say, is not an absence of restraints; it is a composite of restraints. There is no liberty without order. There is no order without systematised restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty. The great problem of the democratic process is not to strip men of restraints merely because they are restraints. The great problem is to design a system of restraints which will nurture the maximum development of man's capabilities, not in a massive globe of faceless animations but as a perfect realisation, of each separate human mind, soul and body; not in mute, motionless meditation but in flashing, thrashing activity. [Speech at Law Day Observances (Pentagon, 1962) as quoted in Case and Comment, Mar - Apr 1963]" 15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history - sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner. 16. In this regard, we may profitably reproduce a few significant lines from Benjamin Disraeli: "I repeat……… that all power is a trust - that we are accountable for its exercise - that, from the people and for the people, all springs, and all must exist." 17. That apart, it has to be remembered that justice in its conceptual eventuality and connotative expanse engulfs the magnanimity of the sun, the sternness of mountain, the complexity of creation, the simplicity and humility of a saint and the austerity of a Spartan, but it always remains wedded to rule of law absolutely unshaken, unterrified, unperturbed and loyal.” B.A No.3997 of 2024 11 10. The law has thus crystalised that while deciding an application for bail under Section 439, the courts are obliged to look into the nature, gravity and seriousness of the crime, the potential severity of the punishment that is likely to be imposed, the character, behaviour and standing of the accused, the prosecution’s legitimate apprehension regarding the tampering of evidence, the flight risk that is involved and whether releasing the accused on bail would have a deleterious impact on the society. 11. After bestowing my anxious consideration to the facts, the materials placed on record and the rival submissions made across the Bar and on comprehending the nature, gravity and seriousness of the offences alleged against the petitioners, that the investigation in the case is at its nascent stage, that the recovery is to be effected and that if the petitioners are enlarged on bail, it would have a deleterious impact on B.A No.3997 of 2024 12 the society. Hence, I am convinced that the petitioners are not entitled to be released on bail because there is a danger of justice being thwarted. Resultantly, the bail application is dismissed. sd/- **C.S.DIAS, JUDGE** sks/22.5.2024 B.A No.3997 of 2024 13