Aneeshkutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** ## **Bail Appl..No.3456 OF 2020** **CRIME NO.2847/2019 OF Kundara Police Station, Kollam** ## **PETITIONER/ACCUSED:** **ANEESHKUTY, AGED 32 YEARS, SON OF ALIYARKUTTY, KUNNUMPURATHU VEEDU, KARIMBINKARA, KERALAPURAM, PUNUKKANNUR CHERRI, ELAMPALLOOR, KOLLAM DISTRICT.** **BY ADVS. SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.G.RENJITH SMT.R.S.ASWINI SANKAR** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **2 THE STATION HOUSE OFFICER KUNDARA POLICE STATION, KUNDARA, KOLLAM DISTRICT, PIN-691 501.** **R1-2 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER R1-2 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **SRI C.K SURESH SR PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.06.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl..No.3456 OF 2020 2 ## **ORDER** This application is filed under Section 439 of the Code of Criminal Procedure. 2. The petitioner herein is the accused in Crime No.2847 of 2019 of the Kundara Police Station. He is accused of having committed an offence punishable under Section 302 of the IPC. The investigation in the case has been completed and the final report has been laid before the committal Magistrate. The petitioner was arrested in connection with the crime on 11.12.2019 and he remains in custody. His application for bail was dismissed by the Court of Session. 3. This application is taken up and heard through Videoconferencing. 4. Shajila was a 42 year old married woman whose husband was working abroad. She had two children aged 17 years and 8 years respectively. The prosecution alleges that the petitioner used to constantly harass the lady, abuse her and hurl threats as she did not agree to his request to have a relationship. A crime was registered as Crime No.735 of 2018 at the Kundara Police Station when the petitioner Bail Appl..No.3456 OF 2020 3 entered the house of Shino, where Shajila had gone for a party and assaulted her. On 11.12.2019, Shajila came out of her home to see off her children, who were on their way to school. The petitioner came there on a bike and picked up an altercation with the lady. He had carried weapons and chilly powder with him. When Shajila thwarted his advances, he got down from his bike and at about 9 am, pushed her down and with the sharp cutting knife, which he had in his possession, inflicted as many as 40 injuries on the lady. The incident was allegedly witnessed by CW2 Aneez and CW 27 Hayrunnisa. Portions of the incident was witnessed by several others. The prosecution has cited as many as 25 witnesses of the locality to prove its case. 5. Sri. K.Ramkumar, the learned senior counsel appearing for the petitioner as instructed by Sri. T.Ramprasad Unni, submitted that the petitioner is a jilted lover and he was frustrated on account of the refusal of Shailaja to live with him in spite of their intimacy and acquaintance. He was in a particular frame of mind when he committed the act. It is very significant, submits the learned senior counsel, that the petitioner did not flee from the spot. He was arrested on the same day and the weapon used for commission of the offence has been seized. He pointed out that the learned Sessions Judge had dismissed the bail application on the ground that the petitioner is a habitual Bail Appl..No.3456 OF 2020 4 offender. However, except for one crime in which the petitioner herein is involved, his history sheet is clean. He would further contend that now the investigation has been completed, if the petitioner is detained for a further period, it is likely to hinder his defense and violate his human rights. The presumption of innocence is the cardinal principle of criminal jurisprudence and it was contended that the object of bail is neither punitive or preventative and deprivation of liberty must be considered as a punishment unless there are reasons to believe that the accused will not stand his trial when called upon. The apprehension of the prosecution that the petitioner would influence the witnesses and tamper with the evidence can easily be alleviated by imposing appropriate conditions, submits the learned counsel 6. Sri.C.K. Suresh, the learned Senior Public Prosecutor, has stoutly opposed the prayer. He submitted that the deceased was the mother of two children and she was being harassed for the past several years for spurning the advances of the petitioner. In the year 2018, the lady was chased into the house of a neighbour and she was assaulted. Her children have stated that the petitioner used to threaten them that they would be done away with if their mother did not interact with the petitioner. As many as 25 witnesses have been cited by the prosecution to prove the incident and if the petitioner is released on bail, there is Bail Appl..No.3456 OF 2020 5 every chance that he would terrorise the witnesses and prevent them from speaking against him in the ensuing trial. The safety of the eye witnesses are also at stake, submits the learned public prosecutor. Relying on the report in **Kalyan Chandra Sarkar v. Rajesh Ranjan**[1] , it is argued that detention of the accused for the purpose of safeguarding the trial cannot be questioned as being violative of Article 21 of the Constitution. He would contend that heinousness of the crime as well as the likelihood of him absconding and the chances of repeating the crime are vital factors which are to be borne in mind while considering an application for bail in a case of this nature. 7. I have anxiously considered the submissions and have perused the materials which are made available. 8. It is 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 influenced; and (viii) danger, of course, of justice 1 [ (2005) 2 SCC 42] Bail Appl..No.3456 OF 2020 6 being thwarted by grant of bail and finally (ix) the larger interest of the public or the State (See: **State of U.P through CBI v. Amarmani Tripathi**[2] , **Prahlad Singh Bhati v. NCT, Delhi & Anr**[3] ; **Ram Govind Upadhyay v. Sudarshan Singh & Ors.**[4] ; **Pratapbhai Hamirbhai Solanki v. State of Gujarat and Anr.**[5] . 9. In the case on hand, the petitioner is accused of having brought to a premature end the life of a lady at 9 am in the morning by inflicting multiple stab injuries. The postmortem report would show that as many as 40 stab injuries were inflicted. The contention of the prosecution that there is a really good chance of the petitioner subverting the course of justice by intimidating the witnesses and tampering with the evidence cannot be brushed aside. The life of the minor children as well as the eyewitnesses may be also at jeopardy considering the daring nature of the petitioner. 10. I am not impressed with the contention of the learned counsel that detention in custody of the petitioner herein since the date of his arrest would entitle him to be released on bail. As held by the Apex Court in **Ram Govind Upadhyay v. Sudarshan Singh** (supra), 2 AIR 2005 SC 3490 3 AIR 2001 SC 1444 4 AIR 2002 SC 1475 5 2013 (1) SCC 613 Bail Appl..No.3456 OF 2020 7 while liberty of an individual is precious and there should always be an all round effort on the part of Courts to protect such liberties of individuals, but this protection can be made available to the deserving ones only. Liberty is to be secured through a process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim and also the collective interest of the community in order to ensure that parties do not lose faith in the institution and indulge in private retribution. 11. In **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu and Anr.**[6] , the Apex Court while dealing with individual liberty and cry of the society for justice has opined as under: “It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of 6 [JT 2012 (9) SC 155] Bail Appl..No.3456 OF 2020 8 liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well - meaning person desires. 19. We are absolutely conscious that liberty is a greatly cherished value in the life of an individual, and no one would like to barter it for all the tea in China, but it is obligatory on the part of court to scan and scrutinize, though briefly, as regards the prima facie case, the seriousness and gravity of the crime and the potentiality of the accused to tamper with the evidence apart from other aspects before the restriction on liberty is lifted on imposition of certain conditions." After having considered the nature and gravity of the allegations against the petitioner, the severity of the punishment which conviction would entail, the character and antecedents of the petitioner, the possibility of the petitioner influencing and intimidating the witnesses, I am of the view that release of the petitioner on bail at this stage will not be in the interest of justice. I am, therefore, not inclined to grant bail to the petitioner at this stage. This application will stand dismissed. ## **SD/-** ## **RAJA VIJAYARAGHAVAN V** ## **JUDGE** **//True copy// PS to Judge** PS Bail Appl..No.3456 OF 2020 9