Aneeshkutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 03RD DAY OF DECEMBER 2020 / 12TH AGRAHAYANA, 1942** ## **Bail Appl..No.6333 OF 2020** **CRIME NO.2847/2019 OF Kundara Police Station, Kollam** ## **PETITIONER:** **ANEESHKUTTY, AGED 32 YEARS, S.O. ALIYARKUTTY, KUNNUMPURATHU VEEDU, KARIMBINKARA, KERALAPURAM, PUNUKKANNUR CHERRI, ELAMPALLOOR, KOLLAM, 691501** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921)** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682031** ## **SRI CK SURESH, SR PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.6333 OF 2020** **2** ## **ORDER** This application is filed under Section 439 of the Code of Criminal Procedure. 2. The petitioner herein is the sole 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. He had approached this Court earlier and by Annexure-I order, this Court had rejected his application. 3. The deceased Shajila was a 42 year old married woman whose husband was working abroad. She is the mother of two children. 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 entered the house of Shino, where Shajila had gone for a party and assaulted her. On 11.12.2019, at **Bail Appl..No.6333 OF 2020** **3** about 8.30 am, Shajila came out of her home to see off her children. The petitioner came there on a bike and picked up an altercation with the lady. He carried a sharp cutting weapon and chilly powder with him. When Shajila thwarted his advances, he got down from his bike and chased her down. He is then alleged to have inflicted as many as 40 stab injuries on her body. He is then alleged to have stood his ground to prevent any person from rescuing the lady. 4. Sri. S. Rajeev, the learned counsel appearing for the petitioner, submitted that the petitioner was arrested at the spot itself and he has been undergoing detention for over a year. While he was in judicial custody, he got infected with COVID-19 and he has still not regained his health. It is further submitted that though the final report has been laid, the case has not been committed to the Court of Session by the Committal Magistrate. There is no reasonable possibility of the trial being conducted in the near future as the schedule of cases before the Court of Session has all been disrupted owing to the restrictions imposed due to the pandemic. It is contended that the presumption of innocence is the cardinal principle of criminal jurisprudence 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 **Bail Appl..No.6333 OF 2020** **4** learned counsel. 5. Sri.C.K. Suresh, the learned Senior Public Prosecutor, has vehemently opposed the prayer. He would point out that as many as 40 stab injuries were inflicted by the petitioner on a hapless lady in broad daylight. The gruesome incident was witnessed by several persons and their statements have all been taken. It is submitted that the committal proceedings shall be concluded without delay and the trial can be expedited. If the petitioner is released on bail, he would tamper with the evidence and influence the witnesses, submits the learned Public Prosecutor. 6. I have anxiously considered the submissions advanced and have perused the materials which are made available. 7. The principles, which the Court must consider while granting or declining bail, have been stated by the Apex Court in a catena of cases. In **Prahlad Singh Bhati v. NCT, Delhi** [(2001) 4 SCC 280], it was held thus: “The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the **Bail Appl..No.6333 OF 2020** **5** presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” ## 8. The very same principles were reiterated in **State of U.P. v. Amarmani Tripathi** [(2005) 8 SCC 21] as well. ## 9. In **Mahipal v. Rajesh Kumar** , [(2020) 2 SCC 118] it was ## held this by the Apex Court in para 14 of the report: 14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of **Bail Appl..No.6333 OF 2020 6** individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case-by-case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding. 10. In the case on hand, the records reveal that the petitioner had committed the murder of a hapless lady, and the mother of two minor children, in broad daylight. The incident was witnessed by several persons of the locality. Though every other murder is heinous and reprehensible, the manner in which the crime was committed, the age and gender of the victim, the time and place chosen to commit the dastardly act, the preparations made as well as the nature and number of injuries inflicted all make this offence a diabolic one. 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. 11. I am not impressed with the contention of the learned counsel that the long period of detention in custody of the petitioner herein from the date of his arrest would entitle him to be released on bail. As held by **Bail Appl..No.6333 OF 2020** **7** the Apex Court in **Ram Govind Upadhyay v. Sudarshan Singh** [(2002) 3 SCC 598], 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. 12. In **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu and Anr.** , [JT 2012 (9) SC 155], 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 liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well - meaning person desires. **Bail Appl..No.6333 OF 2020** **8** 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." This application will stand dismissed. However, the learned Magistrate before whom the case is pending committal, shall take expeditious steps to commit the case for trial and, after committal, the Court of Session shall take note of the fact that the petitioner is an under trial and take earnest measures to expedite the trial. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** DSV