Arshad K.K. v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 ``` ``` BAIL APPL. NO. 189 OF 2024 ``` ``` CRIME NO.550/2022 OF INFOPARK POLICE STATION, ERNAKULAM ``` ``` AGAINST THE ORDER IN SC 222/2023 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ``` ## `PETITIONER/ACCUSED:` ``` ARSHAD. K.K, AGED 29 YEARS S/O ABDUL RASAQ,KOLARIKKANDI HOUSE, IRINGAL, PAYYOL, KOZHIKODE, PIN – 673522 ``` ``` BY ADVS.SHAHIM BIN AZIZ ROSHINI UDAYAKUMAR KAVYA S.A. RAFEEK. V.K. T.B.GAFOOR T.RIYAS MOHAMMED SHAFI.K M.I.ANWAR SADATH ``` ## `RESPONDENT/STATE/COMPLAINANT:` ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ## `OTHER PRESENT:` ``` SR PP ADGP SRI GRASHIOUS KURIAKOSE SR PP SRI C K SURESH ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.189/2024 -:2:- Dated this the 1[st] day of February,2024 ## **O R D E R** The petitioner, who is the accused in Crime No.550/2022 of Infopark Police Station, Ernakulam, registered against him for allegedly committing the offences punishable under Sections 392, 302 & 201 of the Indian Penal Code, 1860, has filed the above application under Section 439 of the Code of Criminal Procedure, 1973 (‘Code’, for short). The petitioner was arrested on 17.08.2022. 2. The prosecution case, shorn of exhaustive details, is that the informant learnt that his friend and native ‘Sajeev Krishnan’ (deceased), aged about 24 was murdered someone in his rented years, by apartment on the 16[th] floor of Oxoniya Infocity Residential Apartments, Kakkanad, Ernakulam between the period from 12.08.2022 to 16.08.2022. On 13.07.2022, the accused had stolen a gold anklet from B.A.No.189/2024 -:3:- the Malabar Gold jewellery, Kondotty, and received Rs.1,15,000/-. After spending Rs.60,000/- in Goa, he started residing with his friend ‘Adarsh’ in apartment No.20K of the same apartment complex. Through common friends, the accused got acquainted with the deceased, who was dealing in Ganja. The deceased borrowed Rs.52,000/- from the accused for his illegal trade. Later, the accused learnt that the Police were looking out for him in connection with the theft. To settle the matter with the jewellery, the accused demanded the deceased to return his money, but the deceased failed to return the amount. So, the accused decided to rob the Ganja that was stored in the deceased’s apartment, sell the contraband and recover his money. Accordingly, on 15.08.2022, the accused went over to the apartment of the deceased; an altercation took place between the two, and the accused took a knife from the kitchen and stabbed the B.A.No.189/2024 -:4:- deceased several times, and murdered him. Thereafter, he concealed the body of the deceased in the duct of Flat No.16F. Thus, the accused has committed the above offences. 3. Heard; Sri. Shahim Bin Aziz, the learned counsel appearing for the petitioner and Sri. C. K. Suresh, the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner vehemently argued that the petitioner is innocent of the accusations levelled against him. The petitioner has been in judicial custody since 18.08.2022, which is more than 535 days. The recovery has been effected, the investigation is complete and the final report has been laid. The case is numbered as S.C.No.222/2023 and is pending before the Court of Session, Ernakulam. The petitioner has cooperated with the investigation. Therefore, the petitioner’s B.A.No.189/2024 -:5:- continuous detention is The learned unnecessary. counsel relied on the decisions of the Hon'ble Supreme Court in **Sanjay Chandra v. CBI** [(2011)1 SCC 694] and that of this Court in **Greeshma @ Sreekutty v. State of Kerala** [2023: KER:56875] to canvass the position that there is a presumption of innocence in favour of the accused until he is convicted, that bail is the rule and jail is the exception, that once a chargesheet is filed, there is no necessity for the petitioner’s further incarceration, which is an infringement of his right to life as guaranteed under Article 21 of the Constitution of India. He also submitted that the petitioner is the sole breadwinner of his family. There is no one to take care of his interest, especially to defend the criminal proceeding. Hence, the application may be allowed. 5. The learned Public Prosecutor diligently opposed the application. He contended that the B.A.No.189/2024 -:6:- petitioner had committed a gruesome and cold-blooded murder. The accused had initially committed robbery and then the offence of murder. Thereafter, he attempted to destroy the evidence by concealing the body in the duct of the apartment, which establishes his mental framework. The learned Public Prosecutor read out the 17 antemortem injuries from the postmortem certificate of the deceased to demonstrate the brutal murder. He drew the attention of the Court to the decision of the Hon'ble Supreme Court in **Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and another** [(2005) 2 SCC 42] to bolster his submission that the period of detention is not a relevant criterion to enlarge the accused on bail. He contended that the case has been committed to the Court of Session and will be shortly scheduled for trial. Therefore, if the petitioner is enlarged on bail at this stage, he would tamper with the evidence and B.A.No.189/2024 -:7:- intimidate the witnesses. Hence, the application may be dismissed. 6. The prosecution allegation is that the accused had given Rs.52,000/- to the deceased for the purpose of his illegal business in drugs. Although the accused asked for the return of the money, the deceased refused to return the same. Then, an altercation took place, and the accused committed the murder of the deceased. 7. The pivotal contention of the learned counsel for the petitioner is that, as the case has been committed to the Court of Session, there is no need for the further detention of the petitioner, who has been in judicial custody for more than 535 days. The petitioner may be enlarged on bail since bail is the rule and jail is the exception. The learned Public Prosecutor’s defence was that, notwithstanding the final report being laid and the case being committed to the Court of Session, B.A.No.189/2024 -:8:- as the petitioner has committed a gruesome murder, the petitioner is not entitled to be released on bail, in view of the exposition of the law in **Kalyan Chandra Sarkar’s** case. He also expressed the apprehension that there is a likelihood of the petitioner intimidating the witnesses and tampering with evidence. 8. The petitioner had earlier approached the Court of Session, Ernakulam, to release him on bail, but the application was dismissed by Annexure-A3 order dated 23.09.2023, on the finding that as the petitioner had committed a grave crime and the overt acts being brutal, enlarging the petitioner on bail would a to the convey wrong message society. Accordingly, the application was dismissed. 9. This Court is called upon to consider whether the petitioner is entitled to be enlarged on bail on the above mentioned grounds. 10. It cannot be gainsaid that the exceptional B.A.No.189/2024 -:9:- power to grant bail under Section 439 of the Code is wide-ranging and discretionary, and the power is to be exercised judiciously. 11. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Another** [(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 influenced; and danger, of course, of justice being thwarted by grant of bail.” ## 12. Subsequently, in **Kalyan Chandra Sarkar** ’s case, the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed B.A.No.189/2024 ## -:10:- 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 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. ## 13. 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 B.A.No.189/2024 -:11:- 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.” ## 14. 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 B.A.No.189/2024 -:12:- 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 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.” 15. Coming back to the case on hand, the postmortem certificate reveals that the deceased had suffered 17 antemortem injuries on his body. The materials placed on record, prima facie, show that the petitioner has committed a gruesome murder and has thereafter attempted to destroy the evidence. 16. On an anxious consideration of the materials placed on record, the rival submissions made across the Bar and the proclamation of the law in the afore-cited precedents, and on an appreciation of the nature, seriousness and gravity of the accusations levelled against the petitioner, the potential severity of B.A.No.189/2024 -:13:- the punishment that is likely to be imposed on him, the reasonable apprehension projected by the prosecution that the petitioner may intimidate the witnesses and tamper with the evidence, and notwithstanding the fact that the petitioner has been in judicial custody since 17.08.2022, I am not convinced and satisfied that the petitioner is to be released on bail, as it would have a deleterious impact on the 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** DST/01.02.24 //True copy// P.A. To Judge