AMBADY AGED 19 YEARS S/O ANDROSE v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **TUESDAY, THE 6[TH] DAY OF JULY 2021 / 15TH ASHADHA, 1943** **BAIL APPL. NO. 3677 OF 2021** Crime No.859 of 2020 of Munambam Police Station, Ernakulam ## **PETITIONER/S:** AMBADY AGED 19 YEARS S/O ANDROSE, KAIPOL HOUSE, NEAR RAMAVARMA SCHOOL, AYYAMPILLY, KOCHI, ERNAKULAM DISTRICT., PIN - 682501 BY ADV BIJU ANTONY ALOOR ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 THE STATION HOUSE OFFICER MUNAMBAM POLICE STATION ERNAKULAM DISTRICT,, PIN - 683515 BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION ## **OTHER PRESENT:** SRI.C.K.SURESH SR PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.06.2021, THE COURT ON 06.07.2021 DELIVERED THE FOLLOWING: BA 3677/2021 -2- ## ASHOK MENON, J. ------------------------------------ ## BA No.3677 of 2021 ------------------------------------Dated this the 6[th] day of July 2021 ## O R D E R Application for regular bail under Section 439 Cr.P.C. 2. The applicant is the fourth accused in Crime No.859 of 2020 of Munambam Police Station, Ernakulam, for having allegedly committed offences punishable under Sections 302, 120-B, 212 and 201 read with Section 34 of the IPC. This is a successive application for bail. The earlier application for bail filed by him as BA No. 2600/2021 was dismissed. The petitioner is once again before this Court seeking indulgence. 3. The prosecution case, in a nutshell, can again be reiterated thus: On 22.09.2020, at about 4.15 AM, the deceased BA 3677/2021 -3- allegedly got a message in his Facebook account, purportedly from a girl he was fond of, inviting him to reach Pallathamkulangara Beach. He was excited and wasted no time reaching there to interact with the girl, believing that the message was sent by her. It was not the girl, who sent the message, but, by A1, using her Facebook account and it was a trap laid by him to murder the deceased out of envy about the relationship between the deceased and the girl, for whom he too had a liking. He, therefore, hatched a conspiracy with the rest of the accused including the applicant, who are all his friends, to do away with the deceased. By that conspiracy, accused Nos.1 to 3 and the applicant armed with deadly weapons, like a knife and wooden rafters, lay-in-wait for the deceased at the beach anticipating his arrival in response to the message which was passed over to him with the definite intention to ensnare him. When the deceased reached there, he was mercilessly BA 3677/2021 -4- assaulted, and mortally wounded. The postmortem report indicates 39 ante-mortem injuries, which caused his death. The body was recovered much later and the inquest report was prepared at 10.30 AM. Rigour Mortis had already set in by that time. 4. The applicant states that he is innocent and the allegations are not true, and that investigation has already been completed and the final report laid. The applicant is hardly out of juvenility as are the rest of the accused, all in their late teens. It is also stated that the overt act attributed to the accused is negligible as he had only used a stick, which is not capable of causing any fatal wounds. And, therefore, he prays that he may not be detained any longer. The application for bail filed by him before the Magistrate was dismissed. And the fate of his application filed before the Sessions Judge was no different. Hence the applicant seeking indulgence from this court filed BA No.2600/2021, which too BA 3677/2021 -5- was dismissed. The applications for bail filed by A1 to A3 were all, repeatedly dismissed by this court. The applicant states that the allegations made against him are different. It is also urged that there was a delay in furnishing the copies of the 164 statements of witnesses to the accused. Hence, an incomplete final report was filed to deny him the benefit of statutory bail. 5. Heard the learned counsel for the applicant and the learned Public prosecutor who very vehemently opposed the bail application. Records perused. 6. The learned counsel reiterates his argument about the flimsy and unbelievable motive set up by the prosecution about how the deceased was allegedly enamoured by a girlfriend of one of the first accused, and how they took the extreme step of hatching a conspiracy to do away with him. 7. The prosecution would per contra submit that the act of the accused including the applicant BA 3677/2021 -6- indicates their proclivity to commit a heinous crime even at the least provocation. The motive for committing the alleged offence is well established. There is CCTV footage and also statements under Section 164 Cr.P.C. of a girl, who was the girlfriend of the applicant. Other witnesses have also given similar statements indicating the complicity of the accused including the applicant. The prosecution seeks to rely on extra-judicial confession on the part of some of the accused including the applicant. There is also an extrajudicial confession allegedly made to the Doctor. All these put together and the CCTV footage and the reasons for the assault are all pressed into service by the prosecution to prove its case against the accused. The fact that the applicant is hardly out of teenage, and that he does not have any criminal antecedents alone may not help him in getting bail. 8. The argument of the learned counsel BA 3677/2021 -7- appearing for the applicant that it is intending to defeat the provisions under Section 167(2) Cr. P.C, that an incomplete charge sheet had been filed by the prosecution is not acceptable. I had called for a report from the jurisdictional Magistrate in which it is stated that all the documents were produced along with the final report. But, certified copies of 164 statements of witnesses that were recorded could not be produced by the prosecution because they had not yet obtained the certified copies of those 164 statements. The fact that those documents were not produced along with the final report does not make that an incomplete final report. And, therefore, I do not find any reason to hold that the applicant is entitled to any benefit for that reason. Now all the records have been produced before the committal court and the copies have been furnished to the accused as submitted by the jurisdictional Magistrate. 9. This court had, keep in mind what has been BA 3677/2021 -8- stated by the Apex court in Chaman Lal vs. State of U.P. and another, [2004 (7) SCC 525] concerning the requisite factors for grant of bails such as (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge, and also the dictum in Prasanta Kumar Sarkar vs. Ashis Chatterjee and another [2010 (14) SCC 496] , where it was opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances such as: (i) whether there is any prima facie or reasonable ground to be believed 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, BA 3677/2021 -9- 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. Holding that order of bail cannot be granted in an arbitrary or fanciful manner, this Court also relied upon Neeru Yadav vs. State of Uttar Pradesh and another [2014 (16) SCC 508] , to hold that the liberty of an individual is not absolute. Society by its collective wisdom through the process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and the societal order. 10. This Court has after considering all the facts and circumstances of this case ordered that the applicant has to be tried in custody because there are several witnesses, who can be either intimidated or influenced by him and enlarging him on bail would jeopardise the prosecution case. BA 3677/2021 **==> picture [21 x 9] intentionally omitted <==** Therefore, the bail application was dismissed and the trial court was directed to expedite the trial and disposal of the case. 11. An accused, no doubt, has the right to make successive applications for a grant of bail. But, the Court entertaining successive bail applications must consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications (See Kalyan Chandra Sarkar v. Rajesh Ranjan, [2004 KHC 754: AIR 2004 SC 1866 ] ). In Kalyan Chandra Sarkar v. Pappu Yadav, [2005 KHC 604: AIR 2005 SC 921] , the Apex Court has held as follows: “Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused BA 3677/2021 **==> picture [20 x 9] intentionally omitted <==** who has been denied bail earlier, can move a subsequent application” Considering the fact and circumstances of this case, I am not going to revisit the reasons for which I had earlier declined bail to the applicant. The application is therefore dismissed again with a reminder to the trial Court to see that the trial is taken to its logical conclusion at the earliest keeping in view that the applicant and some other accused are under-trial prisoners. Sd/- ASHOK MENON JUDGE jg