Babu v. State of Kerala

**BAIL APPL. NO. 4839 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 15[TH] DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943** **BAIL APPL. NO. 4839 OF 2021** **CRIME NO.474/2018 OF THE ANGAMALI POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** BABU AGED 45 YEARS S.O KOCHAPPU, ARACKAL HOUSE, ERAPPUKARA, MOOKKANNUR VILLAGE, NOW RESIDING AT HOUSE OF MADASSERY DEVASSYAKUTTY, KALARKUZHY BHAGAM, MOOKKANNUR, ANAGAMALY, PIN - 683577 BY ADVS. N.ABHILASH E.S.SANEEJ M.P.UNNIKRISHNAN M.K.SAMYUKTHA DEEPU RAJAGOPAL PRAVEEN K. JOY ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 SRI RIYAL DEVASSY, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 4839 OF 2021** **2** ## **ORDER** This application for regular bail is filed under Section 439 of the Code of Criminal Procedure by the accused in Crime No.474 of 2018 of the Angamaly Police Station registered on 12.2.2018 under Sections 323, 324, 447, 506, 307 and 302 of the IPC. The final report has been laid and the case is now pending on the files of the Court of Session, Ernakulam as S.C.No.675 of 2018. 2. The applicant was arrested in connection with the crime on 14.2.2018 and he has been in custody since then. The earlier applications filed by him had been dismissed with directions to the learned Sessions Judge to expedite the proceedings. The applicant contends that the trial has not commenced till date. It is in the afore circumstances that the applicant is before this Court seeking his enlargement on bail. 3. The prosecution case as is disclosed from the records would reveal that the applicant was not on good terms with his brother Sri.Sivan as there were disputes between them in respect of the family property. On 12.2.2018, at about 5.40 pm., the applicant herein along with CW1 went to the disputed property to earmark certain trees. While the applicant along with CW1 was marking the trees, his elder brother Sivan came to the spot and raised objections. It is alleged that this led to an altercation between **BAIL APPL. NO. 4839 OF 2021 3** him and Sivan. Smt.Valsala, the wife of Sivan, intervened when Sivan was pushed down. It is alleged that the applicant was armed with a chopper with which he inflicted multiple cut injuries on vital parts of the body of Valsala. When Sivan came to the rescue, he was also attacked. After inflicting serious injuries on them, the applicant directed his attention towards Smitha, the daughter of Sivan. When Smitha made an attempt to escape, the applicant followed her and chopped on various parts of her body with the weapon. All of them sustained very serious injuries and though they were rushed to the hospital, their lives could not be saved. The prosecution also alleges that the applicant herein attacked CWs 1 and 2 who tried to intervene. The minor children of Smitha had occasion to witness the gruesome incident and according to the prosecution, the applicant herein even attempted to inflict injuries upon them. 4. Sri.Praveen K. Joy, the learned counsel appearing for the applicant would point out that the applicant has been under incarceration for the past more than three years. He would contend that the prosecution has not come up with the true version. According to him, the earlier applications were dismissed on the ground that the applicant would influence the witnesses and tamper with the evidence. According to the learned counsel, stringent conditions can be imposed by this Court to alleviate the said apprehension. The applicant can reside outside the District and he can also produce his title deeds to ensure that the applicant **BAIL APPL. NO. 4839 OF 2021** **4** does not misuse the liberties that is being granted to him. According to the learned counsel, a person on bail has a better chance to prepare or present his case than one in custody. Relying on the decision of the Apex Court in **G.Narasimhulu** v. **Public Prosecutor** [AIR 1978 SC 429], it was contended that the requirement for bail is to secure the attendance of the prisoner and it is the duty of the court to admit the accused to bail, wherever practical unless there are strong grounds for supposing that such person will not appear to take the trial. The learned counsel has also referred to the decision of the Apex court in **Dataram Singh v. State of Uttar Pradesh** [2018 (3) SCC 22] and it is argued that while considering an application for bail, this Court should not be carried away by the severity of the accusations. He would also place heavy reliance on the decision of the Apex Court in **State of Kerala v. Raneef** [(2011) 1 SCC 784] and it is argued that when under-trial prisoners are detained in jail custody for an indefinite period, Article 21 of the Constitution is violated. The long period of detention undergone by the applicant is highlighted by the learned counsel to persuade this Court to release him on stringent conditions. 5. Sri.Riyal Devassy, the learned Public Prosecutor, submitted that this Court while dismissing the earlier applications had considered the fact that the applicant had wiped out three members of his brother’s family in broad daylight and in the presence of witnesses. The nature and gravity of the allegations, the severity of the injuries inflicted, the materials in support **BAIL APPL. NO. 4839 OF 2021 5** thereof, the role attributed, the antecedents and the likelihood of the applicant getting involved himself in other crimes and the possible apprehension of the applicant influencing and terrorizing the witnesses were taken note of while dismissing the earlier application. According to the learned public prosecutor, pursuant to directions issued by this Court, the learned Sessions Judge had scheduled the case for trial. The applicant himself had filed an application to adjourn the proceedings. It is contended that the trial can be commenced any day if the applicant and his counsel cooperate. He would further contend that the prime witnesses are the near relatives of the applicant. He would also highlight the various facets of the case to bring home the point that the release of the applicant on bail would be detrimental to a free and fair trial. 6. I have considered the submissions advanced. The earlier applications filed by the applicant was dismissed by this Court by Annexures-1 and 3 orders after taking note of the grave nature of the allegations. This Court had considered 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 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. Relying on the **BAIL APPL. NO. 4839 OF 2021** **6** judgment of the Apex Court in **Mahipal v. Rajesh Kumar @ Polia and Another** (2020 (2) SCC 118), this Court had held that an appropriate balance between public interest in the administration of justice and the protection of individual liberty has to be struck pending adjudication of the case. 7. However, since it was submitted that despite orders issued by this Court earlier, the trial is unduly delayed, a report was called for from the Court of Sessions. The said report reads as follows: “As per the order of the Hon’ble High Court referred as No.2 above, I am directed to submit a report as to the stage of proceedings and time frame within which the trial can be concluded in S.C.No.675/2018 of this court. In this regard, I may submit that the case stands posted to 23.9.2021 for framing charge and the charge will be framed on the said day itself. As far as the time frame within which the trial can be concluded is concerned, I may humbly submit the following:- While the Hon’ble High Court disposing the previous Bail Application ie., B.A.No.3747/2020, vide the order referred as No.3 above, this Court was directed to give priority to this case as the accused is an under trial prisoner and take the matter to its logical conclusion. Pursuant to said order, the case was posted to 3/11/2020 for scheduling trial after framing charge. However, on that day, the prosecution as well as the learned Counsel for the accused seriously opposed scheduling of trial in this case and filed applications to adjourn the case without scheduling the case for trial. The application filed on behalf of the accused was Crl.M.P.No.208/2020 and the application filed by the Prosecution for the same purpose was Crl.M.P.No.212/2020. Both-sides were opposing the scheduling of trial pointing out the Pandemic situation and their difficulty in conducting a case involving large number of witnesses. It was pointed out by learned Prosecutor that out of 121 witnesses cited by the prosecution, **BAIL APPL. NO. 4839 OF 2021 7** three eye witnesses ie., CWs 2, 3 and 4 are children aged 11 and 12 and it is not safe or advisable to schedule trial of this case, in this Pandemic situation, in which large number of witnesses are to be examined and three of the prime witnesses are children aged 11 and 12. Learned Counsel for the accused also submitted that he himself is aged 71 years and it would be risky for himself also, apart from everyone around, to get involved in examination of almost 121 witnesses amidst this Pandemic situation. In view of the direction of the Hon’ble High Court for speedy disposal and the objection raised by Prosecution as well as defence side in scheduling the trial, the matter was reported to Hon’ble High Court vide my letter dated 5/11/2020, referred as No.4 above. As far as time required for the conclusion of trial is concerned, I may humbly submit that there are altogether 121 witnesses cited by the prosecution. As it would not be ideal or advisable to summon more than one or two witnesses on a particular day, in the present Pandemic situation, especially because the court hall of this court is tiny, I may humbly submit that the trial can be concluded within four months from the date of beginning of examination of witnesses, I may humbly further submit that the examination of witnesses can begin as soon as the Hon’ble High Court permits.” 8. The report reveals that when the case was posted for trial on 3.11.2020, both the applicant as well as the prosecution filed applications to adjourn the case. It was in the said circumstances that the Sessions Judge could not proceed with the trial. It appears that the prosecution has cited as many as 121 witnesses. The prime witnesses are children aged around 12 years. The learned Sessions Judge has expressed hope that the trial can be concluded within a period of four months from the date of its commencement. **BAIL APPL. NO. 4839 OF 2021 8** 9. I agree with the learned counsel appearing for the applicant that the delay that has occurred in commencing the trial cannot solely be attributed to the applicant. However, the fact remains that the applicant had also sought for adjournment. The restrictions imposed in view of the pandemic has almost been lifted and trial can commence without delay. Though the period of incarceration undergone by the applicant cannot be ignored, this Court cannot be unmindful of the severe nature of the accusation and the apprehension expressed by the prosecution. This is a case in which the applicant had murdered his brother and two others in the presence of several witnesses. As held by the Apex Court in **Ram Govind Upadhyay v. Sudarshan Singh** (AIR 2002 SC 1475), while the 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. 10. 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 **BAIL APPL. NO. 4839 OF 2021 9** 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. 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." Having regard to the entire aspects, I find no reason to enlarge the applicant on bail. The learned Sessions Judge shall endeavour to schedule the case for trial and conclude the same within a time frame. This application will stand dismissed. ## **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** DSV