Athil @ Unni v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3214 OF 2024 ``` ``` CRIME NO.117/2024 OF ANCHALUMMOODU POLICE STATION, KOLLAM PETITIONER/2ND ACCUSED: ``` ``` ATHIL @UNNI, RESIDING AT KOLLERIL PADINJATTATHIL ,KUPPANA ,TRIKKADAVOOR VILLAGE,PERINAD.P.O KOLLAM, PIN - 691601 ``` ## **`BY ADV B.DIPU SACH DEEV`** ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION ADDL. STATE PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SR PP SRI C K SURESH , ``` ## **`ADGP SRI GRASHIOS KURIAKOSE`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.3214 of 2024** ``` 2 ``` ## **Dated this the 24[th] day of May, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.117/2024 of the Anchalmmoodu Police Station, Kollam, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 294(b), 323, 324, 447 and 302 r/w Section 34 of the Indian Penal Code. The petitioner was arrested on 6.2.2024. 2. The gravamen of the prosecution case is that: on 27.01.2024, at around 01.00 hours, the accused, in furtherance of their common intention with an intention, to murder Adarsh - the nephew of the defacto complainant trespassed into the courtyard of his **B.A. No.3214 of 2024** ``` 3 ``` residence and uttered obscene words. When the defacto complainant questioned the same, the accused beat the defacto complainant on his head with an iron rod. Then, the brother-in-law of the defacto complainant named Gopalakrishna Pillai attempted to intervene in the matter. Then, the accused 3 and 4 attacked him and kicked him down on the ground. Subsequently, the defacto complainant’s brother, named Mohanan Pillai (deceased), also attempted to help Gopalakrishnan get up; then, the second accused stamped him on his chest and he succumbed to fatal injuries. The fifth accused abused the defacto complainant and his relatives in obscene language. Thus, the accused have committed the above offences. 3. Heard; Sri. B.Dipu Sach Deev, the learned counsel appearing for the petitioner and sri. C.K. Suresh, the learned Senior Public Prosecutor for the respondent. **B.A. No.3214 of 2024** ``` 4 ``` 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of FIR would substantiate that the offences alleged against the petitioner will not be attracted. The petitioner has been in judicial custody since 6.2.2024, the investigation in the case is complete and recovery has been effected. Moreover, by Annexures A1 and A2 orders the accused 4, 5 and 3, respectively, have been enlarged on bail. The petitioner is entitled to the benefit of a similar order. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. He contended that, it was the petitioner who inflicted the fatal injury on the deceased. A reading of the FIR would substantiate that there is a specific overt act alleged against the petitioner. Taking into consideration this aspect, this Court granted bail to the accused 4, 5 and 3 as per Annexures A1 and A2 orders. **B.A. No.3214 of 2024** ``` 5 ``` Merely because the petitioner is in judicial custody since 6.2.2024 will not entitle him to be released on bail, in view of the law laid down in **Kalyan Chandra Sarkar v.** **Rajesh Ranjan alias Pappu Yadav and another** [(2004) 7 SCC 528] . If the petitioner is released on bail, there is every likelihood of him tampering with evidence and intimidating the witnesses. Hence, the application may be dismissed. 6. On an evaluation of the materials on record, it can be gathered that there is a specific allegation against the petitioner that he was the person who inflicted the fatal injury on the deceased. ## 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: > “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other **B.A. No.3214 of 2024** ``` 6 ``` 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 being thwarted by grant of bail”. ## 8. Similarly, in **Kalyan Chandra Sarkar’s case** the Honourable Supreme Court observed thus: “11.The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v.Sudarshan Singh [(2002) 3 SCC 598] and uran v. Rambilas [(2001) 6 SCC 338.) ## 9. Likewise, in **Gurucharan Singh Ors. V. State** ## **(Delhi Administration)** [(1978) 1 SCC 118], the **B.A. No.3214 of 2024** ``` 7 ``` Honourable Supreme Court has held that while considering an application of bail, it is necessary to consider the nature and seriousness of the offence; the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar factors which may be relevant in the facts and circumstances of the case. 10. 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 **B.A. No.3214 of 2024** ``` 8 ``` 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 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.” After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, and the proclamation of the law in the afore-cited decisions, and 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, and also the reasonable apprehension projected by the prosecution that there is a likelihood of the petitioner tampering with the evidence and intimidating the witnesses, notwithstanding the fact that the petitioner has been in judicial custody since 6.2.2024, I am of the ``` 9 ``` ## **B.A. No.3214 of 2024** firm view that the petitioner is not entitled to be released on bail, because it would have a deleterious impact on the society and justice will be thwarted. The application is devoid of merit and is only to be rejected. Resultantly, the application is dismissed. ``` Sd/- ``` rmm/24/5/2024 **C.S.DIAS, JUDGE**