Abhimanyu K. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA,** **1944** ## **BAIL APPL. NO. 8932 OF 2022** **CRIME NO.183/2022 OF NEW MAHE POLICE STATION, Kannur** **AGAINST THE ORDER/JUDGMENTBail Appl. 6571/2022 OF HIGH COURT** ## **OF KERALA** ## **PETITIONER/14th ACCUSED:** **ABHIMANYU.K.,AGED 22 YRS.,S/O.KANAKA BABU SOPANAM HOUSE, TEMPLE GATE, THALASSERR670102.KANNUR DIST.KERALA** **BY ADVS. T.ASAFALI T.Y.LALIZA** ## **RESPONDENTS/STATE & THE COMPLAINANT:** - **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682031** - **2 SHO, NEW MAHE POLICE STATION NEW MAHE POLICE STATION, POST PARAL 670102, KANNUR DIST.KERALA** **BY SRI.GRACIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.8932 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. B.A. No.8932 of 2022 .................................................................** Dated this the 23[rd] day of November, 2022 ## **ORDER** This is an application for regular bail. 2. The present bail application is filed by the 14[th] accused in Crime No.183 of 2022 of New Mahe Police Station, Kannur District registered alleging commission of offences punishable under Sections 143, 147, 148, 447, 204, 120B and 302 read with Section 149 of the Indian Penal Code (in short, “IPC”). 3. The prosecution allegation is that the accused who are workers of BJP/RSS were in inimical terms with one Haridasan, a CPI(M) loyalist in connection with an incident which occurred on 08.02.2022 near to Kooloth Bhagavathi Temple in which accused Nos.10, 11, 13 and 16 were attacked by the said Haridasan. Due to said animosity and political rivalry, the accused entered into a criminal conspiracy to commit murder of said Haridasan and on 21.02.2022 the accused formed themselves into an unlawful assembly and in pursuance of the conspiracy hatched, at 1.20 a.m. trespassed into the property of Haridasan and concealed themselves behind the bushes near to the well of the house of the said Haridasan. Immediately, when the said Haridasan came to the courtyard of his house, BA No.8932 of 2022 3 the accused beat him using steel pipes and hacked him to death using sword and thus committed the above said offences. 4. It is the contention of the learned counsel appearing for the petitioner that the petitioner was called to the Police Station for the purpose of investigation and that he was arrested. It is also submitted that the petitioner does not have any role in the commission of the offence. Apart from this, there is no evidence collected by the investigating agency to connect the accused with the crime. Even as per the prosecution case, the petitioner did not take part in the offence allegedly committed on 21.02.2022. The only allegation against the accused person is that he had a role in hatching the criminal conspiracy in this case. The petitioner does not have any criminal antecedents and he is arrayed as an accused in the crime only because he is a BJP sympathizer and there was political pressure on the police to array him as an accused because the deceased person is a CPI(M) worker. The petitioner is suffering from severe back pain and now undergoing treatment. There is no chance that the petitioner would abscond and his presence could not be secured during the trial. As of today, the petitioner is in judicial custody for more than 173 days. The investigation of the case is over and the final report is submitted in the court below. Further detention of the petitioner is not required for the investigation or for trial. It is the further contention of the petitioner that one of the accused similarly situated with that of the petitioner was granted bail by the Sessions Court, Thallasery in Crl.M.C. No.537 of 2022 BA No.8932 of 2022 4 and therefore petitioner is also entitled for a similar consideration. 6. The learned Additional Director General of Prosecution appearing for the State seriously opposing the application for bail submitted that the petitioner who is the 14[th] accused had an active role in the conspiracy and has also attempted along with other accused on several occasions for the commission of the offence. The petitioner was part of a conspiracy which was hatched out on 08.02.2022 along with A1, A6, A7, A10, A11 and A13 for the murder of the deceased and they have also arranged for the weapons to be used for the alleged crime. It is the further case of the prosecution that on 11.02.2022, the petitioner along with accused Nos. 7, 8 ,10, 11, 13, 15, and 16, formed into an unlawful assembly to commit murder of the deceased but due to some reasons, it could not take place. It is further contended that the petitioner along with the other accused again attempted for the commission of offence on 14.02.2022 but the same could not be materialized on the said date also. Eight swords were recovered by the police on the basis of the confession statement of the 8[th] accused. As regards the petitioner, the specific case of the prosecution is that he had an active involvement in the conspiracy as well as attempted to commit the offence on two earlier occasions. It is also submitted that the petitioner is involved in Crime No.142 of 2022 registered under Sections 143, 147 and 153 read with Section 149 IPC of New Mahe Police Station. On the basis of the same, it is contended by the learned Additional Director General of Prosecution that the petitioner had an BA No.8932 of 2022 5 active involvement in the alleged crime and the same is revealed from the statement of the witnesses as well as the evidence including digital evidence collected during the course of the investigation. All the accused are active members of RSS including the petitioner and are capable of influencing and threatening the witnesses. It is further submitted that there is serious law and order situation prevailing in the area due to the murder of the deceased and the release of the petitioner will result in serious political tensions. It is also submitted that there is every chance for the petitioner to abscond and therefore the application for bail is seriously opposed by the prosecution. 7. It is seen that this is a politically motivated murder that is executed in a most brutal manner. In the postmortem certificate dated 21.02.2022, 23 antemortem injuries were noted and in the attack, the left leg of the deceased was severed from the body and as per the opinion as to the cause of death, it is stated that it is due to multiple incised sharp force injuries inflicted; resulting in the severing of left leg, transecting major blood vessels and injuries resulting in cut/fractures, blood loss, and shock. The petitioner in the present bail application is also having criminal antecedents and most of the other accused are having serious criminal antecedents including involvement in cases punishable under Section 302 IPC. Therefore, the apprehension raised by the prosecution that if the petitioner is released on bail there is every chance for influencing or terrorizing the witnesses cannot be brushed aside. Further that if the BA No.8932 of 2022 6 petitioner is released on bail the chance for disruption of law and order situation in the area cannot be ruled out. It is settled law that nature of seriousness of the offence, likelihood of accused fleeing from justice, the impact that the release of the accused may make on the prosecution witnesses, its impact on the society and likelihood of tampering with the evidence are all matters that should weigh with the court while exercising the discretion to grant bail. It is also to be noted that the petitioner has earlier approached this Court seeking bail and the same was rejected as per Annexures A2 and A4 orders and further that three other applications filed before the Court of Sessions also ended in dismissal. 8. The court has considered the rival contentions earlier and prima facie found that the involvement of the petitioner in the alleged conspiracy is clear from the materials collected by the prosecution as part of the investigation. No fresh contentions were raised by the petitioner in this bail application. The contention of the petitioner is that the only allegation against him is, he was part of the conspiracy to commit the murder and that he is not directly involved in the actual perpetration of the crime. I am of the opinion that the conspirators for commission of a crime are also having an equal role as of the actual perpetrators. The Apex Court in _**Mamta Nair v. State of Rajasthan and another, (2021) 7 SCC 442**_ , while considering an application seeking cancellation of bail in respect of a main conspirator in a crime leading to murder, has held that since there are prima facie materials against the said accused the grant of bail by the BA No.8932 of 2022 7 High Court is to be set aside. The Apex Court in _**Ishwarji Nagaji Mali v. State of Gujarat and another, (2022) 6 SCC 609,**_ while considering a challenge against the grant of bail to the husband who is charged with criminal conspiracy of murdering his wife, set aside the bail granted to the husband holding that the High Court has not considered the parameters to be taken into consideration while releasing the accused on bail in a serious offence of murder and hatching a conspiracy to commit murder. The Apex Court in _**Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadavu and another, (2004) 7 SCC 528**_ has held that the mere fact that the accused has undergone a certain period of incarceration by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the accused on bail when the gravity of the offence alleged is severe. 9. The contention of the petitioner that since bail has been granted to the 12[th] accused, the petitioner is also entitled to bail in as much as they both are facing the very same allegation. But a reading of the order dated 29.04.2022 in Crl. M.C. No.537 of 2022 of the Court of Sessions, Thallasserry granting bail to the 12[th] accused reveals that he did not participate in the actual commission of the offence and was not an active participant in the conspiracy. It is in the said circumstance bail was granted to the said accused. In the case of the petitioner, it is the contention of the prosecution that he has active participation in the BA No.8932 of 2022 8 conspiracy and that he has also attempted along with the other accused to murder the deceased on earlier occasions. A similar issue was considered by the Apex Court in _**Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230**_ and held as follows: “ _26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988], the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was “assigned similar role of armed with stick (sic)”. Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law._ Therefore, I find no merit in the contention of the petitioner that he is entitled for parity with 12[th] accused in the matter of grant of bail. Therefore, taking all these aspects into consideration and having regard to the seriousness of the allegations, I am of the opinion that petitioner is not entitled to bail at present. The bail application is accordingly dismissed. Sd/- ## **VIJU ABRAHAM** **JUDGE** cks