Ajayan S. v. State of Kerala and The Sub Inspector of Parassala Police Station

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 ``` ## `BAIL APPL. NO. 1439 OF 2024` ``` CRIME NO.46/2024 OF PARASSALA POLICE STATION, THIRUVANANTHAPURAM ``` ## `PETITIONER:` ``` AJAYAN S, AGED 39 YEARS S/O.SASI, RESIDING AT KUNDUVILAPUTHEN VEEDU, KOTTAMOM, PARASUVAIKKAL P.O., PARASUVAIKAL, THIRUVANANTHAPURAM, PIN – 695508 ``` ``` BY ADVS.B.KRISHNA MANI N.V.SANDHYA DHANUJA M.S ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2THE SUB INSPECTOR OF POLICE, PARASSALA POLICE STATION, PARASSALA, THIRUVANANTHAPURAM RURAL, THIRUVANANTHAPURAM DISTRICT, PIN – 695502 ``` ## `OTHER PRESENT:` ## `SR PP SRI C S HRITHWIK` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1439/2024 -:2:- Dated this the 27[th] day of February,2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973(‘Code’, for short), by the first accused in Crime No.46/2024 of the Parassala Police Station, Thiruvananthapuram, registered against the accused (three in number), for allegedly committing the offences punishable under Sections 294(b), 323, 324, 506, 392 and 341 read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). The petitioner was arrested on 08.02.2024. 2. The gist of the prosecution case is that; on 08.01.2024, at around 05.30 p.m., the accused in furtherance of their common intention, wrongfully restrained the informant and the first accused caught hold of his shirt, after uttering obscene words, and the accused jointly slapped the informant on his face. Thereafter, the second accused voluntarily caused hurt B.A.No.1439/2024 -:3:- to the informant by hitting with a stick on the rear side of his body. When the informant fell down, the accused snatched the informant’s mobile phone and took away Rs.3,500/- from his pocket. Thus, the accused have committed the above offences. 3. Heard Sri. Krishna Mani B., learned counsel appearing for the petitioner and Sri. C. S. Hrithwik, the learned Senior Public Prosecutor appearing for the respondents. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. Section 392 of the IPC has been deliberately added by the Investigating Officer, to deny bail to the petitioner. The petitioner has been in judicial custody since 08.02.2024. The investigation in the case is practically complete and recovery has been effected. The petitioner is the sole breadwinner of his B.A.No.1439/2024 -:4:- family. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. He contended that the petitioner is a person with criminal antecedents. He is an accused in 23 other crimes of similar nature of the very same Police Station. Therefore, if the petitioner is released on bail, there is every likelihood of him committing the similar offences. Moreover, the investigation in the case is only in the preliminary stage. If the petitioner is released on bail, he would intimidate the witnesses and tamper with the evidence. Hence, the application may be dismissed. 6. The crux of the prosecution allegation is that the accused Nos.1 to 3 had in furtherance of their common intention, restrained the informant and, thereafter, assaulted him and then, took away his mobile phone and Rs.3,500/- from his pocket. The petitioner had moved an application under Section 437 B.A.No.1439/2024 -:5:- of the Code before the jurisdictional Magistrate, which was dismissed by Annexure-III order, on the specific finding that the petitioner is an accused in 23 other cases of serious nature, the petitioner is including in the rowdy history sheet of the Parassala Police Station and that the investigation in the case is still at its nascent stage. 7. In **Prasanta Kumar Sarkar v. Ashis** **Chatterjee and Anr.** [(2010) 14 SCC 496], the ## Honourable Supreme Court has observed as follows: “9. …...... 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 B.A.No.1439/2024 -:6:- influenced; and danger, of course, of justice being thwarted by grant of bail.” 8. Subsequently, in **Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and another** [(2005) 2 SCC 42], the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the evidence or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is B.A.No.1439/2024 -:7:- severe, and there is an allegation of tampering with the evidence by the accused. ## 9. In **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], the Hon'ble Supreme Court has held thus: “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” ## 10. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, and also the proclamation of the law in the afore-cited precedents, and on B.A.No.1439/2024 -:8:- prima-facie comprehending the accusations levelled against the petitioner, I am convinced that the accusations are serious and grave in nature. If the petitioner is released on bail, there is every likelihood of him committing similar offences, in view of his antecedents. Therefore, the reasonable apprehension projected by the prosecution, that the petitioner may tamper with the evidence and also intimidate the witnesses, is reasonable and justifiable. Hence, I am not satisfied that the petitioner is to be released on bail, as it would have a deleterious impact on the society. Consequently, I hold that the application is meritless and is only liable to be dismissed. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/27.02.24 //True copy// P.A. To Judge