Bail Applications: Muhammed Salih and Thanseer v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** **Bail Appl..No. 209 of 2019** **SC NO.901/2018 OF THE PRINCIPAL SESSIONS COURT, THIRUVANANTHAPURAM CRIME NO. 302/2018 OF Pallickal Police Station, Thiruvananthapuram** ## **PETITIONER/ACCUSED NO.2:** **MUHAMMED SALIH, AGED 26 YEARS, S/O JALALUDHEEN KUNJU, RESIDING AT PANACHUMOOTTIL VEEDU, MEMANA, OCHIRA VILLAGE.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SMT.MANJU E.R. SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.THOMAS SABU VADAKEKUT** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, KOCHI 682 031.** **SMT. REKHA C. NAIR, SENIOR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2019, ALONG WITH Bail Appl..255/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl. 209/2019 & Bail Appl..255/2019 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 31ST DAY OF JANUARY 2019 / 11TH MAGHA, 1940** ## **Bail Appl..No. 255 of 2019** ## **SC NO.901/2018 OF THE PRINCIPAL SESSIONS COURT, THIRUVANANTHAPURAM** **CRIME NO. 302/2018 OF Pallickal Police Station, Thiruvananthapuram** **PETITIONER/ACCUSED NO.4:** **THANSEER, AGED 23 YEARS, S/O. KUNJUMON, RESIDING AT KOCHAYYATH THEKKATHIL, PUTHEN THERUVU, ATHINADU VILLAGE, KARUNAGAPPALLY.** **BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR** ## **RESPONDENTS:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **SMT. REKHA C. NAIR, SENIOR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.01.2019, ALONG WITH Bail Appl..209/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl. 209/2019 & Bail Appl..255/2019 3 ## **ORDER** These applications are filed under Section 439 of the Code of Criminal Procedure. 2. The applicant in B. A. No. 209 of 2019 is the 2[nd] accused and the applicant in B.A.No.255 of 2019 is the 4[th] accused in S.C. No 901/2018 on the file of the Principal Sessions Judge, Thiruvananthapuram, which has arisen from Crime No. 302 of 2018 registered at the Pallickal Police Station. In the above case, the applicants herein along with other accused are being prosecuted for having committed offences punishable under Sections 302, 307, 120B, 449, 201, 202, 212 r/w Section 34 of the IPC. Since the applicants are the accused in the same Crime, these applications are considered and disposed of by a common order. 3. The prosecution allegation as per the charge can be briefly detailed as under: The 1[st] accused is a businessman with establishments at Qatar in the middle east. The relationship between the 1[st] accused and his wife became strained and it ended in the dissolution of their Bail Appl. 209/2019 & Bail Appl..255/2019 4 marriage. He believed that his wife was in an adulterous relationship with a certain Rajesh, with whom, she was maintaining constant contact. He resolved to murder Rajesh and to achieve his object, conspired with the 2[nd] accused, who was his friend, employee and gym trainer, all rolled into one. The 2[nd] accused, who was hired for that purpose by the 1[st] accused, contacted accused Nos.3 ,4, 5 and 7 and hatched a conspiracy to do away with Rajesh. They also assembled in the house of the 6[th] accused, who is a member of a whatsapp group in which the 3[rd] accused is a member, and they are alleged to have chalked out a plan to liquidate Rajesh. Weapons and vehicles were mobilized and necessary arrangements were made to make good their escape without leaving any trace. On 26.3.2018, in the late hours, the accused Nos. 2 to 4 proceeded in a Maruti swift car, which was hired for the purpose, and reached the recording studio of the deceased. The accused Nos. 2 to 4 entered the studio and found that CW1, a close friend of Rajesh, was with him. The 4[th] accused with intent to murder, flashed a bill-hook and inflicted serious injuries on the body of CW1. After injuring CW1 as aforesaid, the accused Nos. 2 and 3 entered the studio and after cornering Rajesh, with intent to commit murder, inflicted a series of cut injuries with swords. After ensuring that Rajesh would not survive, the accused are alleged to have left the scene. Though Rajesh was Bail Appl. 209/2019 & Bail Appl..255/2019 5 rushed to the hospital, his life could not be saved. Based on the statement furnished by CW1, a crime was registered on 27.3.2018. Investigation was taken over by the Inspector of Police, Kilimanoor, who laid the final report before Court. 4. Heard the learned counsel appearing for the applicants and the learned Public Prosecutor. 5. It is submitted by the learned counsel appearing for the applicants that the final report has already been laid and in that view of the matter, keeping the applicants in judicial custody for a further period would not serve any purpose. It is further submitted that the trial is yet to be commenced. Insofar as the 2[nd] accused is concerned, no other crimes are reported against him. The only ground on which his application for bail was dismissed earlier is that the 1[st] accused is still at large. It is contended by the learned counsel that a person who is on bail has a better chance of defending a case than a person who is under-trial. Insofar as the 4[th] accused is concerned, it is argued by the learned counsel that the prosecution has no case that he had inflicted any injury on the deceased. 6. Per contra, the learned Public Prosecutor submitted that this Bail Appl. 209/2019 & Bail Appl..255/2019 6 is one of those cases in which murder was committed in a devious manner by a group of hired killers engaged for that purpose by the 1[st] accused. The 1[st] accused is still at large. It is further urged that the murder was committed in a meticulous manner and the accused were arrested after much effort. The injured eye witness had occasion to see the incident in a close proximity. According to the Public Prosecutor, there is every chance that an attempt would be made to silence him if the applicants are released. It is further submitted that this Court by Annexure-B order dated 28.9.2018 had considered all the relevant aspects and was not persuaded to enlarge the applicants on bail. The nature and gravity of the allegations, the safety of the main eye witness and also the legitimate apprehension that the applicants would make themselves scarce are valid reasons to deny them bail, contends the learned Public Prosecutor. It is finally submitted that expeditious steps have been taken to commence the trial and necessary directions can be given to the court below to conclude the trial at the earliest. 7. I have considered the submissions advanced and have perused the materials on record. Bail Appl. 209/2019 & Bail Appl..255/2019 7 8. 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 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. 9. The very same principles were reiterated in **State of U.P. v. Amarmani Tripathi** [(2005) 8 SCC 21] as well. 10. In the case on hand, there cannot be any doubt that the allegations against the applicants are extremely grave. This is a case of planned murder committed in the dead of night by hired killers. Bail Appl. 209/2019 & Bail Appl..255/2019 8 The eye witness is also an injured and he had identified the applicants herein as the persons who had trespassed inside the studio of the deceased and had hacked him to death. As held by the Apex Court, the reasonable possibility of the witnesses being tampered with and the possibility of securing the presence of the accused at the time of trial are valid considerations. The mere fact that the applicants have been in custody from 10.4.2018 may not be a reason to allow their application for bail. As held by the Apex Court in **Rajesh Ranjan Yadav** v. **CBI** (AIR 2007 SC 451), while Article 21 is of great importance, a balance must be struck between the right of liberty of the person accused of an offence and the interest of the society. No right can be absolute and reasonable restrictions can be placed on the exercise of the rights. The grant of bail due to prolonged incarceration cannot be said to be an absolute rule because, the grounds of bail must depend upon the contextual facts and circumstances. 11. Having considered the nature and gravity of the accusations against the applicants, the apprehension expressed by the prosecution concerning the safety of the star witness and the likelihood of their abscondence, I am of the view that this Court will not be justified in releasing the applicants on bail at this stage. If the Bail Appl. 209/2019 & Bail Appl..255/2019 9 trial is delayed further, the applicants may approach the Sessions Court and seek appropriate orders. These applications are dismissed. **SD/-** DSV **RAJA VIJAYARAGHAVAN V., JUDGE** //TRUE COPY// P.A.TO JUDGE