Afsal A.P. v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942 Bail Appl..No.3461 OF 2020** **CRIME NO.409/2019 OF Tanur Police Station , Malappuram** ## **PETITIONER:** **AFSAL A.P AGED 24 YEARS S/O. ABDUL SAMAD, EANINTE PURAKAL HOUSE, ANCHUDI, PUTHIYA KADAPPURAM P.O., MALAPPURAM-676502** **BY ADVS. SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.P.M.RAFIQ SRI.THOMAS J.ANAKKALLUNKAL SRI.V.C.SARATH SRI.VIPIN NARAYAN SRUTHY N. BHAT** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, HIGH COURT P.O., ERNAKULAM, PIN-682031** **2 ADDL.R2.KUNJUMOL AGED 55 YEARS W/O SAITHALAVI, KUPPANTE PURACKAL HOUSE, ANJUDI, PUTHIYA KADAPPURAM, TANUR, MALAPPURAM -676302. IS IMPLEADED AS PER ORDER DATED 24-06-2020 IN CRL.M.A. NO. 2/2020** **R2 BY ADV. K.A.JALEEL R2 BY ADV. SRI.C.Y.VINOD KUMAR** ## **PP.SRI.S.SAJJU** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.07.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.A.No. 3461 of 2020 2 ## **P.V.KUNHIKRISHNAN, J** ------------------------------------------------B.A.No. 3461 of 2020 ------------------------------------------------Dated this the 2[nd] day of July, 2020 ## **ORDER** Ninth accused in Crime No.409 of 2019 of Tanur Police Station filed this bail application under Section 439 of Criminal Procedure Code, contending that he is in custody in connection with the above case for about 8 months and he may be released on bail. The facts of the case are narrated in the following paragraphs. 2. The petitioner is the 9[th] accused in Crime No.409 of 2019 of Tanur Police Station. The above case is registered against the petitioner and 8 others alleging offence punishable under Sections 143, 147, 148, 341, 324, 326, 201, 120B and 302 read with Section149 IPC. 3. The prosecution case is that the deceased and accused were active supporters of rival political parties. While so, on 24.10.2019 at about 7.45 p.m the deceased Izahaque @ Rafeeque, an active supporter of Muslim League political party was B.A.No. 3461 of 2020 3 on his way to the Mosque for prayers. Prosecution case is that the accused in the case formed themselves into an unlawful assembly, armed with deadly weapons like sword, axe, and other weapons, committed rioting and in furtherance of their common intention and object to commit murder of said Izahaque @ Rafeeque due to political rivalry, attacked him indiscriminately. The prosecution case is that the deceased sustained 52 injuries and succumbed to the injuries. 4. In connection with the above case, the petitioner who is the 9[th] accused was arrested on 6.11.2019. When his bail application came up for consideration before this Court during the summer vacation, the bail application was dismissed with liberty to the petitioner to file a fresh bail application after vacation when the regular sitting of the High Court started. Such a liberty was given because during that period the bail applications were considered through video conferencing. Since this is a case in which offence under Section 302 IPC is also involved, this Court observed that perusal of case diary is also necessary. Hence, the petitioner was given liberty to file the bail application after summer vacation when B.A.No. 3461 of 2020 4 the regular sitting of High Court is started. This order was passed on 5.5.2020. 5. Thereafter the petitioner filed a bail application on 2.6.2020. When this bail application came up for consideration on 17.6.2020, this Court found that when the bail application of the petitioner was considered by the Sessions Court, Manjeri, the mother of the deceased impleaded in the bail application and opposed the bail application. Therefore, this Court found that a notice should be issued to the mother of the deceased. Accordingly, on 17.6.2020 this Court passed the following order. “On perusing the order passed by Sessions Court in Crl.M.C. No. 178/2020, it is seen that the mother of the deceased in this case appeared before the Sessions Court and opposed the bail application. In such circumstances, I think it is better to give notice to the mother of the deceased also regarding the pendency of this bail application through the investigating officer. 2. Therefore, the Public Prosecutor will inform the investigating officer in this case to give a notice to the mother of the deceased informing her that the bail application filed by accused No.9 is posted for hearing on 23.6.2020. 3.Issue a copy of this order to the Public Prosecutor today itself.” ## 6. Thereafter, the mother of the deceased appeared through B.A.No. 3461 of 2020 5 Advocate Sri.K.A.Jaleel and filed an application for impleading her as an additional respondent. Impleading petition was allowed on 24.6.2020. The bail application was considered on 24.6.2020. 7. I heard the counsel for the petitioner and the victim. I also heard the Public Prosecutor on 24.6.2020. The Public Prosecutor produced the final report filed in this case. The police already filed final report in this case. 8. After hearing the bail application in detail, I was not inclined to allow the bail application. Therefore, this Court call for a report from the Additional Sessions Court, Tirur regarding the present stage of SC No.193 of 2020, which is pending there and also the time necessary to dispose the sessions case itself. In this case, the final report is already filed before the committal court and the matter is already committed to the Sessions Court. 9. When this bail application came up for consideration today, the report of the Additional District and Sessions Judge, Tirur is enclosed in this file. The relevant portion of the report of the learned Additional Sessions Judge is extracted hereunder: “S.C.No.193/2020 pending before this court is arising out of the Crime No.409/2019 registered by B.A.No. 3461 of 2020 6 the Tanur Police under sections 143, 147, 148, 341, 324, 326, 201, 120(b) and 302 r/w 149 of IPC. After investigation a final report was filed under Section 173(2) Crpc before the Judicial First Class Magistrate, Parappanangadi. Thereafter the case was committed to Sessions Court, Manjeri after complying sections 207 and 208 of Code of Criminal Procedure vide order dated 24.2.2020. As per order dated 29.2.2020 the case was made over to this Court for trial and disposal. Upon receipt of the case records production warrant directing the Superintendent of Jail, Kozhikode to produce the accused persons on 1.4.2020 was issued. But in view of the out break of Corona Virus and resultant declaration of lock down accused persons were not produced. On 5.5.2020 the Investigating Officer filed a report intimating that a further investigation is being conducted in the matter. In the meanwhile some of the accused persons filed application for Bail. Since there are travel restrictions, thereafter also accused persons were not produced before this Court. Remand extension is being done through video conferencing. Since accused persons are not produced copy of further investigation report was not served on to them and charge was not framed. The case stands posted to 3.7.2020 for production of accused persons for giving a copy of further investigation report. There are altogether 124 witnesses to this case. Witnesses include eye witnesses, expert witnesses and witnesses to prove the documents. Witnesses from different parts of the state are being cited on the side of the prosecution. Since out - break of Covid 19 pandemic is not contained so far and there is an uncertainty regarding the same, it is not possible to estimate the exact time required to . dispose of the case The physical production of the accused persons is necessary for reading out the B.A.No. 3461 of 2020 7 charge and for recording the plea. Even if it is admitted for a moment that production of accused persons can be dispensed with and charge can be framed, then also it will be difficult to procure the presence of the witnesses and accused for recording evidence and examination of accused under Section 313 of the Criminal Procedure. So I am of the view that at least a year will be taken to ” . dispose of the above Sessions Case 10. I underlined certain portion of the report. A perusal of the same will show that the investigating officer filed a report before the Court for further investigation of the case. The learned Sessions Judge also observed that since the outbreak of Covid 19 pandemic is not contained so far and there is uncertainty regarding the same, it is not possible to estimate the exact time required to dispose of the case. The learned Sessions Judge also observed that there are altogether 124 witnesses in this case. Witnesses include eye witnesses, expert witnesses and witness to prove documents. Witnesses are from different parts of the State and the Sessions Judge narrated the difficulty in completing the trial within a time frame. The learned Sessions Judge however, observed that atleast one year will be taken to dispose of the above said case. 11. Today, I heard the counsel for the petitioner, counsel who B.A.No. 3461 of 2020 8 appeared for the victim and the Public Prosecutor. 12. The counsel who appeared for the victim seriously opposed the bail application. He submitted that it is a brutal murder. He submitted that if the petitioner is released on bail, his life itself will be in danger. He also submitted that there is danger to the prosecution witnesses also, if he is released on bail. The counsel also submitted that the petitioner is a habitual offender. Such a person is not entitled to get bail. This is the submission of the counsel for the victim. He also cited decision of this Court which is reported as **Biraju v State of Kerala (2018(4)KHC 230)** in which this court observed that even if charge sheet is filed, the accused need not be granted bail on that ground alone and the bail application is to be decided based on the facts and circumstances of each case. 13. The Public Prosecutor supported the arguments of the counsel for the victim. The Public Prosecutor submitted that there are series of incidents happened in connection with this case. If the petitioner is released on bail, there are chances for similar incidents in future also. He opposed the bail application. B.A.No. 3461 of 2020 9 14. I have considered the contentions of the counsel for the petitioner, counsel for the victim and the Public Prosecutor. 15. It is true that the allegation against the accused are very serious in nature. The prosecution case is that the deceased was brutally attacked by the accused and the deceased sustained about 52 injuries. Normally in such circumstances, the bail application of the accused need not be entertained in the light of the observation . made by the Court in **Biraju v State of Kerala (2018(4) KHC 230)** 16. But one aspect is to be noted. When a report was called for from the trial court, the trial court clearly stated that the Court is not in a position to give a time limit for disposing the case. The trial court observed that since the outbreak of Covide 19 pandemic is not contained so far, there is uncertainty regarding the trial of the case. The Court also observed that even though the case was made over to the Sessions Court for trial and disposal on 29.2.2020, even now the charge is not framed. The trial judge, on receipt of the case records, production warrant was issued to the Superintendent of Jail, Kozhikode to produce the accused on 1.4.2020. But in view of the outbreak of corona virus and resultant B.A.No. 3461 of 2020 10 declaration of lock-down, the accused persons were not produced. The court also observed that physical production of the accused persons is necessary for reading of the charge and for recording the plea. The court also observed that even if it is admitted for a moment that production of accused persons can be dispensed with and charge can be framed then also it will be difficult to procure presence of the witnesses and accused for recording evidence and examination of accused under Section 313 of the Cr.P.C. 17. When such a report is forwarded to this Court by the trial Judge, this Court has to consider the Bail Application keeping in mind the personal liberty of an accused. 18. The question is whether the accused can be put behind the bar till the trial is over, especially when the trial court reported that it is difficult to conclude the trial within a time frame. This Court cannot shut its eye to the fact that now country is facing covid 19 pandemic and even the movements of the citizens are restricted. In the jail also restrictions in connection with Covid 19 pandemic is there. 19. It is submitted by the Public Prosecutor that one case is B.A.No. 3461 of 2020 11 pending against this accused as Crime No.1012 of 2016 of Tanur Police Station. The above case is chargesheeted against the accused for the offences under Sections 324 and 308 IPC. Petitioner is the 9[th] accused in this case. As far as the other accused are concerned, there are several cases registered against them. The counsel for the victim submitted that all the accused are habitual offenders. The Public Prosecutor conceded that there is a lot of difference between the petitioner and the other accused as far as the number of other cases registered against them. I specifically asked the Public Prosecutor what exactly the overt act attributed to this particular petitioner who is the 9[th] accused. The Public Prosecutor submitted that the overt act attributed against this petitioner is that he attacked the deceased with an iron rod on his legs. 20. On going through the facts and circumstances of the case and considering the fact that Covid 19 pandemic is even now a threat to the society, and also considering the fact that the petitioner is the 9[th] accused, and his overt act in the alleged incident is limited, I think this bail application can be allowed. I make B.A.No. 3461 of 2020 12 it clear that the benefit of this order is applicable only to the 9[th] accused. I also take note of the fact that only one case is registered against this petitioner in addition to this present crime. As far as the other accused are concerned there are several cases registered against them. 21. Moreover, considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus Pandemic, the Hon'ble Supreme Court in **Re:Contagion of COVID-19 Virus In Prisons case(Suo Motu Writ Petition(C)No.1 of 2020)** and a Full Bench of this Court in **W.P(C) No.9400 of 2020** issued various salutary directions for minimizing the number of inmates inside prisons. 22. Moreover, it is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in **Chidambaram.P v Directorate of Enforcement (2019 (16) SCALE 870)** , after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair B.A.No. 3461 of 2020 13 trial. 23. Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions: 1.The petitioner shall be released on bail on executing a bond for Rs.1,00,000/-(Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the trial court. 2. The petitioner immediately after release from the prison, report before the Station House Officer of Tanur Police Station and shall furnish his phone number and the place where he is going to reside. The Station House Officer concerned shall keep a vigil on the whereabouts of the petitioner and shall ensure that the petitioner do not violate the terms of the bail. 3. The petitioner shall not threaten or attempt to influence the witnesses or tamper with the evidence. 4. The petitioner shall strictly abide by the B.A.No. 3461 of 2020 14 various guidelines issued by the State Government and Central Government with respect to keeping of social distancing in the wake of declared lock-down. 5. The petitioner shall not enter the limits of Malappuram District till the trial in S.C No.193 of 2020 is over. I make it clear that the petitioner can enter the jurisdiction of Malappuram District for the purpose of appearance in SC No.193 of 2020 as directed by the trial court. 6. The petitioner shall surrender his passport before the trial court. If there is no passport, he will file an affidavit before the trial court to that effect within one week from the date of his release. 7. The petitioner shall report before the jurisdictional police station where he resides on twice in a week [on Mondays and Fridays at 10 a.m]. The Station House Officer, Tanur will contact that police station and make necessary arrangements for the same. B.A.No. 3461 of 2020 15 ## 8. The petitioner shall not involve in any similar offences. If any of the above conditions are violated by the petitioner, the trial Court can cancel the bail in accordance to law, even though the bail is granted by this Court. ## **P.V.KUNHIKRISHNAN, JUDGE** cms