Anoop v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, ``` ## **`1945`** ``` BAIL APPL. NO. 814 OF 2024 CRIME NO.1710/2023 OF POOJAPPURA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/ACCUSED NO.6:`** ``` ANOOP, AGED 31 YEARS S/O VIJAYAN,TC 19/707,NEAR MUTHARAMMAN TEMPLE,MUDAVANMUGAL,THIRUMALA.P.O, THIRUVANANTHAPURAM, PIN - 695006 ``` ``` BY ADVS. V.R.REKESH UNNIKRISHNAN R. ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI, PIN - 682031 ``` ``` BY SR PP SRI C S HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.814 of 2024 ## -:2:- ## Dated this the 21[st] day of February,2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 6[th] accused in Crime No.1710/2023 of the Poojappura Police Station, Thiruvananthapuram, registered against the accused (6 in number), for allegedly committing the offences under Sections143, 147, 294(b), 341, 323, 324, 325, 326, 302 and 506(ii) r/w Section 149 of the Indian Penal Code, 1860. The petitioner was arrested on 08.11.2023. 2. The essence of the prosecution case is that: on 07.11.2023, at around 23.30 hours, while the defacto complainant’s brother named Pradeep (deceased) shouted to the second accused at the parking area of Poojappura, Shabari Bar, out of their previous animosity, the accused 1 to 6 formed an B.A.No.814 of 2024 ## -:3:- unlawful assembly in 10 minutes, and in prosecution of their common intention, the accused 1 to 6 followed the deceased and the defacto complainant, who were returning from the Hill View Hotel, and stabbed the de facto complainant as well as the deceased. The 6[th] accused, along with other accused had brutally beat and fisted the deceased on his neck, head, face, and also on his abdomen. Due to injuries the deceased lost his life. Thus, the accused have committed the above offences. 3. Heard; Sri. V.R. Rekesh, the learned counsel appearing for the petitioner and Sri. C.S. Hrithwik., the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely ## B.A.No.814 of 2024 ## -:4:- implicated in the crime. The petitioner is only an autorickshaw driver. There is nothing on record to substantiate that the petitioner has committed any of the above offences. Annexure A2 medical certificate would show that the petitioner had sustained serious injuries in a motor accident. The petitioner cannot survive without a bystander. The petitioner has been in judicial custody since 08.11.2023, which is 105 days. The investigation in the case is complete, and recovery has been effected. The petitioner’s further detention is unnecessary. Hence, the bail application may be allowed. 5. The learned Public Prosecutors seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, stating that the petitioner, along with the other accused, had brutally assaulted the deceased. The CCTV visuals establish the -:5:- ## B.A.No.814 of 2024 active involvement of the petitioner in the crime. The petitioner is involved in Crime No.684/2018 of the Neyyardam Police Station, which was registered against him for allegedly committing the offences punishable under Sections NDPS Act and Juvenile Justice (Care and Protection of Children Act). The investigation in the case is complete, and the final report has been laid. The release of the petitioner on bail would have a deleterious impact on the Society. There is every likelihood of the petitioner influencing the witnesses and tampering with the evidence. Hence, the application may be dismissed. 6. The prosecution allegation is that the petitioner, along with the other accused, had assaulted the defacto complainant and the deceased on different parts of their bodies. As a result of the brutal attack, the deceased lost his life. The investigation has ## B.A.No.814 of 2024 -:6:- revealed the active involvement of the petitioner in the crime. It is also stated that the petitioner is a person with criminal antecedents. 7. It cannot be gainsaid that the exceptional power to grant bail under Section 439 of the Code is wideranging and discretionary, and the power is to be exercised judiciously. 8. 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; B.A.No.814 of 2024 ## -:7:- - (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 danger, of course, of justice - being thwarted by grant of bail.” 9. 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 witness 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 ## B.A.No.814 of 2024 ## -:8:- 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 severe, and there is an allegation of tampering with the witnesses by the accused. ## 10. 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 ## B.A.No.814 of 2024 ## -:9:- 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.” ## 11. It is also worth recollecting the observations made by the Hon'ble Supreme Court in **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr** [(2012) 9 SCC 446] in the following lines: “30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the B.A.No.814 of 2024 ## -:10:- criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.” 12. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar and the exposition of the law in the aforesaid decisions, I am prima facie satisfied that the accusations levelled against the petitioner are grave and severe. On comprehending the nature, seriousness, and gravity of the accusations levelled against the petitioner, the potential severity of the punishment that is likely to be imposed on him, that the petitioner is a person with criminal antecedents, and the reasonable apprehension ## B.A.No.814 of 2024 ## -:11:- projected by the prosecution that there is every likelihood of the petitioner intimidating the witnesses and tampering with the evidence, I am not convinced and satisfied that the petitioner is to be released on bail, as it would have a deleterious impact on society. Hence, I hold that the application is meritless and is only liable to be dismissed. Resultantly, the application is dismissed. Sd/- **C.S.DIAS,JUDGE** mtk/21.02.24 ## B.A.No.814 of 2024 ## -:12:- ## **`APPENDIX OF BAIL APPL. 814/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE -ITRUE COPY OF THE FIR IN CRIME NO 1710/2023 OF THE POOJAPPURA POLICE STATION DATED 08-10-2023 ``` ``` ANNEXURE -IITRUE COPY OF THE DISCHARGE SUMMERY DATED 07-02-2022 OF THE MEDICAL COLLEGE HOSPITAL ,THIRUVANANTHAPURAM ``` ``` ANNEXURE -IIITRUE COPY OF THE ORDER IN CRIMINAL.M.C.NO.78/2024 WAS DISMISSED BY THE HONOURABLE DISTRICT COURT, THIRUVANANTHAPURAM DATED 19-01-2024 ```