Adarsh@Kannan v. State of Kerala

``` BAIL APPL. NO. 7685 OF 2022 ``` ``` 1 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS`** ``` TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944 ``` ## **`BAIL APPL. NO. 7685 OF 2022`** ``` (CRIME NO.723/2019 POOVAR POLICE STATION, THIRUVANANTHAPURAM) PETITIONER/S: ``` ``` ADARSH@KANNAN AGED 23 YEARS S/O. SURENDRAN NAIRADARSH BHAVAN, THATTAMUKKU,AMBOORI VAZHICHAL,THIRUVANANTHAPURAM , PIN - 695125 BY ADVS. T.K.ANANDA KRISHNAN NIKITA J. MENDEZ P.VIJAYA BHANU (SR.)(K/421/1984) ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` ADGP,SRI.GRASHIOUS KURIAKOSE(SR.) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 7685 OF 2022 ``` ``` 2 ``` ## **BECHU KURIAN THOMAS, J. ======================== B.A.No.7685 of 2022** **------------------------------------------------** _Dated this the 1[st] day of November, 2022_ ## **ORDER** This is an application seeking regular bail filed under Section 439 of the Code of Criminal Procedure, 1973. 2. Petitioner is the 3[rd] accused in SC No.20/2020 of Additional Sessions Court-V, Thiruvananthapuram, which arose out of Crime 723/2019 of Poovar Police Station, Thiruvananthapuram. The offences alleged against the petitioner are under Sections 302, 376, 120(B), 364, 342, 506, 201 and 34 of the Indian Penal Code, 1860. 3. The prosecution allegation is that the three accused together committed murder of the defacto complainant’s daughter on 21.06.2019. The prosecution further alleges that during the investigation, it was revealed that the deceased was in love with the 1st accused who was a Soldier in the Indian Army and when the deceased opposed the marriage of the 1[st] accused fixed with another lady, the three accused entered into a criminal conspiracy and caused the death of the deceased, after abducting her in a vehicle bearing Registration No.TN 72-AH-4524. The accused thereafter buried the body of the deceased in the property of the 1[st] accused and also caused the disappearance of evidence. 4. It is relevant to note that the 2[nd] accused is the elder brother while petitioner is a close friend of the 1[st] accused. The 2[nd] accused was ``` BAIL APPL. NO. 7685 OF 2022 ``` ``` 3 ``` granted bail by this Court on 27.07.2022, while the bail application of the petitioner was rejected by this Court twice earlier, by Annexure 2 and Annexure 3 orders. On both occasions, this Court directed the trial to be completed in a time bound manner. 5. Sri.P.Vijayabhanu, learned Senior Counsel, duly instructed by Sri.T.K.Ananda Krishnan, learned Counsel for the petitioner contended that despite the time stipulated by this Court in Annexure 2 and Annexure 3 and extended till 22.10.2022 by Annexure 4 order, trial has not been completed. On the otherhand, it has become impossible to complete the trial in the near future, contended the learned Senior Counsel. It was also submitted that the learned Sessions Judge, who was conducting the trial was transferred as Motor Accident Claims Tribunal, Thiruvananthapuram and the charge of Additional Sessions Judge V, is given to another court and for the last more than one month, the trial remains quiescent. 6. It was further submitted that even though as many as 65 witnesses were examined, the prosecution has not adduced any evidence, which would connect the petitioner to the crime and further that even if the entire prosecution case is admitted, it could at the most implicate the petitioner under Section 201 of the Indian Penal Code, 1860. Learned Senior Counsel further argued that considering the period of detention already undergone by the petitioner, which is more than 3 years and three months, the continued detention of the petitioner ought not to be permitted. It was also pointed out that due to the non-appointment of the Presiding Officer, the possibility of trial commencing soon is very remote and therefore petitioner ought to be released on bail. Learned Senior ``` BAIL APPL. NO. 7685 OF 2022 ``` ``` 4 ``` Counsel also submitted that the prosecution has already examined most of the independent witnesses and all what remains are few official witnesses and therefore, there cannot be any apprehension of influencing the witness. 7. Sri.Gracious Kuriakose, Additional Director General of Prosecution (ADGP), duly instructed by Sri.K.A.Noushad, learned Public Prosecutor opposed the grant of bail. It was contended that the incident related to a gruesome murder of a young girl by the three accused after abducting her after several days of planning. After the murder, the body was buried in the property of the first accused by all the three accused and they had attempted to destroy all traces of the murder. It was also contended that twice this Court had rejected the bail application of the petitioner and had even directed an expeditious disposal of the case. However, while the trial was proceeding smoothly, the Presiding Officer was transferred and therefore, the trial has come to a halt. 8. The learned Additional Director General of Proseuctions also submitted that the evidence already adduced clearly proves the involvement of the petitioner, not just for destruction of evidence, but also for his direct complicity in the crime. It was further submitted that petitioner’s involvement has been spoken to by more than one witnesses and therefore, considering the possibility of him influencing the remaining witness, and also taking into reckoning the gravity of offence, bail ought not to be granted. It was also submitted that independent witnesses still remain to be examined. 9. I have considered the contentions and have also perused the ``` BAIL APPL. NO. 7685 OF 2022 ``` ``` 5 ``` case diary. 10. It is true that the petitioner has been in detention for more than 3 years and three months. However, this Court had twice rejected the application for bail filed by the petitioner, taking note of the gravity of the offence and also the nature of evidence collected. None of the circumstances, mentioned in Annexure 2 as well as Annexure 3 orders have undergone a change for the purpose of granting bail to the petitioner. The trial in the case, though directed to be completed in a time bound manner and was proceeding effectively and smoothly, came to a suddent halt due to the transfer of the Presiding Officer. Even though charge of Sessions Judge V, Thiruvananthapuram has been handed over to Sessions Judge VI, Thiruvnanthapuram, the trial has not recommenced after such handing over of charge. The time limit specified by this Court in Annexure 1 and extended in Annexure 3 and Annexure 4 orders have also expired. 11. Though the contentions of the learned Counsel was impressive at first blush, I am of the view that considering the observations of this Court in Annexure A2 and A3 orders, the stoppage of trail by itself cannot be treated as a change of circumstances, sufficient to grant bail to the petitioner. 12. In this context it is relevant to bear in mind the decision of the Supreme Court in **Mauji Ram v. State of UP (2019) 8 SCC 17** and that in **Chandrakeshwar Prasad alias Chandu Babu V. State of Bihar and Another (2016) 9 SCC 443** that though the period of custody is a relevant factor, that has to be weighed with the totality of the ``` BAIL APPL. NO. 7685 OF 2022 ``` ``` 6 ``` circumstanes including the societal concerns judged in the light of the above factors, I am of the view that petitioner is not entitled to be released on bail. 13. Notwithstanding the above, the concern expressed by the learned Senior Counsel on behalf of the petitioner that the trial has been halted for the last more than a month is genuine and needs to be redressed. It is brought to my notice that the Presiding Officer, who was conducting the trial till 30.09.2022 has been transferred and posted to Motor Accidents Claims Tribunal, Thiruvananthapuram and that he has no power to try a Sessions case. Therefore, it is not legally proper to transfer the case to the said Presiding Officer. 14. Though SC No. 20/2022 is a matter, which is pending on the files of the Sessions Court-V, Thiruvananthapuruam, I deem it fit, considering the possibillity of appointment of the Presiding Officer to the Sessions Court-V being remote, to exercise the powers under Section 407 of the Cr.PC and to transfer the case to Sessions Court-VI (which is presently given charge of Sessions Court V, Thiruvananthapuram). This step, to an extent will allay the apprehension of delayed trial expressed by the petitioner. 15. Therefore, in the interest of justice, and also to comply with the necessity of a speedier conclusion of trial and in exercise of the power under Section 407 of Cr.PC, I direct, SC No.20/2022. pending on the files of the Sessions Court V, Thiruvananthapuram be transferred to the files of Sessions Court VI, Thiruvananthapuram. I also direct the learned Sessions Judge No.VI, Thiruvananthapuram, to complete the trial as expeditiously ``` BAIL APPL. NO. 7685 OF 2022 ``` ``` 7 ``` as possible at any rate, within a period of three months from today. 16. The Registry of this Court shall communicate this order to the learned Sessions Judge-VI, Thiruvananthapuram, to make necessary arrangements at the earliest. The bail application is dismissed with the above observations. **BECHU KURIAN THOMAS JUDGE** jm/ ``` BAIL APPL. NO. 7685 OF 2022 ``` ``` 8 ``` ## **`APPENDIX OF BAIL APPL. 7685/2022`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure1`|`THE TRUE COPY OF THE ORDER IN B.A.7284/2019`| ||`DATED 23-10-2019`| |`Annexure2`|`THE TRUE COPY OF THE ORDER IN B.A.4234/2020`| ||`DATED 22-09-2020`| |`Annexure3`|`THE TRUE COPY OF THE ORDER IN B.A.4040/2021`| ||`DATED 09-08-2021`| |`Annexure4`|`THE TRUE COPY OF THE ORDER IN B.A.5267/2022`| ||`DATED 27-06-2022`| |`Annexure5`|`THE TRUE COPY OF THE ORDER IN BAIL APPLICATION`| ||`NO. 6297/2022 DATED 01-09-2022`| |`Annexure6`|`TRUE COPY OF THE ORDER IN S.L.P.(CRL)`| ||`NO.7915/2022 OF THE HON'BLE SUPREME COURT DATED`| ||`09-09-2022`|