Bail Applications Nos. 2659/2022 & 4455/2022 v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 ``` ## `BAIL APPL. NO. 2659 OF 2022` ``` [CRIME NO.92 OF 2020 OF MUNAMBAM POLICE STATION, ERNAKULAM] ``` ## `PETITIONER/11ST ACCUSED:` ``` MOHAMMAD HARIS C.M AGED 37 YEARS S/O LATE MOHAMMED, MADATHANATHTHUNDYI HOUSE, CHERUVIRIPPU LANE, CHALIKKAVATTOM, CHAKKARAPARAMBU, ERNAKULAM, PIN - 682306 ``` ``` BY ADV S.A.ANAND ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` ADV M P PRASHANTH -PP ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21.03.2023, ALONG WITH Bail Appl..4455/2022, THE COURT ON 31.03.2023 PASSED THE FOLLOWING: ``` B.A.Nos.2659 & 4455 of 2022 2 ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 31ST DAY OF MARCH 2023 / 10TH CHAITHRA, 1945 ``` ``` BAIL APPL. NO. 4455 OF 2022 ``` ``` [CRIME NO.92 OF 2020 OF MUNAMBAM POLICE STATION, ERNAKULAM] ``` ## `PETITIONERS/ACCUSED NOS.1 AND 3:` ``` 1RAMESH AGED 31 YEARS S/O. SELVARAJ, NADUTHALA CHETTIKULAM, THIRUNELVELI, TAMIL NADU, PIN - 627001 2YESHU AGED 37 YEARS S/O. THANGAMUTHU, NAINERI TEMPLE, KILATHERVU, VALLIYUR, TAMIL NADU, PIN - 627117 BY ADVS. P.VIJAYA BHANU, SR. ADVOCATE ``` ## `RESPONDENT/S:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SRI.PRASHANTH, PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 21.03.2023, ALONG WITH Bail Appl..2659/2022, THE COURT ON 31.03.2023 PASSED THE FOLLOWING: ``` B.A.Nos.2659 & 4455 of 2022 3 ## **ORDER** ## [Bail Appl. Nos.2659/2022 & 4455/2022] Both these applications are filed under section 439 of the Cr.P.C for regular bail. Bail Application No.2659/2022 is filed by the 11[th] accused whereas Bail Application No.4455/2022 is filed by accused Nos.1 and 3 in Crime No.92/2020 of Munambam Police Station, Ernakulam. The offences alleged against the accused are under Sections 115,118,120(B) of 302, 201 IPC, Section 5(1)(a) r/w. 27(1) of Arms Act and Sections 4 & 6 of Explosive Substances Act. 2. The prosecution case is as follows: On 5.3.2020, the Inspector of Police, Munambam Police Station got reliable information that a criminal gang, including Tamilians were staying in a Villa at Munambam named SANSVILLA, near Cherayi beach with the preparations to commit the murder of one Mr. Anas, a resident of Perumbavoor and a known goonda. It was also revealed that, they had procured money and weapons to execute the crime and were waiting for an opportunity to commit the murder. Based on the same, a search was conducted in the said Villa and the Police arrested accused Nos.1 to 8, all hailing from Tamilnadu, along with certain weapons. The crime was registered in such circumstances. Considering the serious nature of the allegations, the investigation was taken over by Anti Terrorist Squad (ATS), and the investigation continued. The B.A.Nos.2659 & 4455 of 2022 4 crime was re-numbered as ATS PS Cr.31/2020/ATS. During the investigation conducted by the ATS, the role of the 9[th] and 10[th] accused were revealed, and they were implicated as accused accordingly. A final report was, thus, filed against accused Nos.1 to 10 for the offences mentioned above before the Judicial First Class Magistrate Court, Njarakkal. 3. Later, as the involvement of some other persons was also revealed, a report was submitted before the learned Magistrate under Section 173(8) of Cr.PC for further investigation. During further investigation conducted by ATS, the role of accused Nos.11 and 13 was revealed, and they were also implicated as accused. Accordingly, a supplementary final report was submitted before the jurisdictional court wherein the case of the prosecution was that the accused Nos.9,11 and 13 had conspired to kill the said Anas and for the same, they hired accused Nos.1 to 7 from Tamilnadu for an amount of Rs.30 lakhs with the help of A14. In connection with the investigation of the case, accused Nos.1 and 3 were arrested on 5.3.2020, and the 11[th] accused was arrested on 17.6.2020. Since then, they have been in judicial custody. Thereafter, the Judicial First Class Magistrate, Njarakkal, committed the case to the Additional Sessions Court-VII, Ernakulam, where it is numbered as S.C.No.589/2021. Even though the petitioners approached this Court and the Sessions Court seeking bail, all the applications were rejected. These applications were B.A.Nos.2659 & 4455 of 2022 5 submitted by them in such circumstances. 4. Heard Sri.P.Vijaya Bhanu, the learned Senior Counsel appearing for the petitioner in B.A.No.4455 of 2022, Sri.S.A.Anand, the learned counsel appearing for the petitioner in B.A.No.2659/2022 and Sri.Prashanth, the learned Public Prosecutor for the State in both cases. 5. The learned counsels appearing for the petitioners contended that, they are innocent of all the allegations and are falsely implicated in the said case. It is further submitted that as far as the 1[st] and 3[rd] accused are concerned, they have been in custody since 5.3.2020, and more than three years have elapsed since the date of their arrest. There is no purpose in keeping them under detention. The maximum punishment that can be awarded for the offences alleged against the petitioners is seven years of imprisonment, and since more than three years have elapsed, they may be released on bail, contends the learned Senior Counsel. Reliance of Section 436A of Cr.PC was also made, which contemplates that if a person under judicial custody had undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence, he should be released by the court on his personal bond with or without sureties. 6. As regards the petitioner in Bail Application No.2659/2022, the 11[th] accused, the same contention was put forward by the learned B.A.Nos.2659 & 4455 of 2022 6 counsel. Besides the same, the learned counsel further points out that he has a wife and three children to look after. Since the petitioner, the family's sole breadwinner, is under detention, they are finding it difficult to survive. It is also pointed out that one of his sons, aged seven years is suffering from heart-related ailments and has been undergoing treatment at Amrita Institute of Medical and Research Centre since 2014. Annexure A5 is produced to substantiate the same. Besides the same, the petitioner also suffered a major ligament tear on his right knee during April, 2021 while he was in prison and is undergoing treatment for the same. It is pointed out that he is unable to walk, and he requires special medical treatment, as the treatment presently given to him is not sufficient. In such circumstances, the learned counsels seek bail for the said petitioners. 7. On the other hand, the learned Public Prosecutor stoutly opposes the prayer for bail sought by the petitioners. As regards accused Nos.1 and 3, it is pointed out by the learned Public Prosecutor that they were arrested from the spot along with weapons which were kept in a car parked in the home-stay where the said accused were staying. The aforesaid accused persons were not having direct acquaintance with the person for whose murder the conspiracy was entered into, but instead, these accused persons were hired by accused Nos.11 and 13 for an amount of Rs.30 lakhs. It is also pointed out that they are the members of the gang regularly involving in B.A.Nos.2659 & 4455 of 2022 7 criminal offences, and they are habitual offenders. The 1[st] accused is involved in 22 cases where the major offences are under sections 302, 307, 392 etc. Similarly, the 3[rd] accused is involved in 8 other offences containing sections 302, 307, 392 etc. These offences are registered against the aforesaid accused persons in various police stations in Tamilnadu. They were brought to Kerala to commit murder of one Anas. 8. As regards the 11[th] accused, the learned Public Prosecutor points out that he is also a person belonging to a gang of notorious criminals and is involved in 11 crimes, including a crime under the provisions of the Unlawful Activities (Prevention) Act (UAPA). It was further pointed out that the said accused has been absconding since 2016 despite getting involved in a large number of cases, and he could be arrested after much efforts by the ATS in the year 2020. Therefore, it is contended that, if the 11[th] accused is released on bail, the chances of him absconding again are very high. 9. The learned Public Prosecutor further contends that considering the criminal antecedents of the petitioners referred to above, which contain serious offences, in all probabilities, they are likely to indulge in further criminal activities, in case, they were released on bail. Hence, the prayer sought by the petitioners for releasing them on bail is opposed by the learned Public Prosecutor. B.A.Nos.2659 & 4455 of 2022 8 10. I have gone through the records and considered the contentions raised by all the parties concerned. It is seen that there are specific allegations against the petitioners herein indicating the role played by each of the petitioners. As far as the petitioners in B.A.No.4455/2022 who are accused Nos.1 and 3 are concerned, the role of the said accused as per the prosecution case was that they, along with accused Nos.2 and 4 to 8, were waiting for an opportunity for committing murder of Anas in a Villa at Munambam. It is also the allegation that some weapons were recovered from the vehicles parked near the said Villa. 11. Accused Nos.1 to 8 were brought to the State based on the conspiracy entered between the accused Nos.9, 11 and 13 by offering them an amount of Rs.30 lakhs. Thus, it could be seen that specific allegations are there against them as per the prosecution case. It is true that the final report has been submitted in this case, and the matter is pending trial. It is also true that some of the other accused who played a vital role in the commission of the offence were already released on bail. However, merely because the investigation was completed and some of the co-accused were granted bail, the bail cannot be claimed by the accused as of right. In this case, besides the specific allegations against the petitioners herein, all of them have criminal antecedents and are involved in various crimes containing very serious offences. The 1[st] accused is involved in 22 cases, three of B.A.Nos.2659 & 4455 of 2022 9 which are for the offence under section 302 IPC and several other cases involving the offences under section 307 IPC are also there. Similarly, the 3[rd] accused is involved in eight crimes, two of which contain the offences punishable under section 302 IPC and in several other cases, the offence involved is under Section 307. As regards the 11[th] accused, he is involved in 11 crimes, and the offences alleged against him include sections 395, 308, 325 IPC and also under sections 17,18 and 19 of UAPA. It is also to be noted that, in the order passed by this Court in the earlier bail applications submitted by all the accused persons herein, this Court has specifically taken note of the nature of criminal antecedents of the petitioners and rejected the bail application even though some of the co-accused were released on bail. In such circumstances, I am of the view that the specific allegation against the petitioners herein, coupled with the criminal antecedents of the petitioners, which contain very serious offences, compels this Court to take a view not to release the petitioners on bail. The learned counsel for the petitioner in B.A.No.2659/2022 raised medical grounds as well. However, I am of the view that, considering the criminal antecedents of the said accused, the bail cannot be granted for that sole reason. 12. As regards the contentions raised by the learned counsel for the petitioners relying on the statutory stipulations contained in section 436A of Cr.PC, I am of the view that it is a matter to be B.A.Nos.2659 & 4455 of 2022 10 considered by the court where the case is now pending trial. Moreover, in both these applications, the respective petitioners have not undergone half of the maximum punishment that can be imposed as per the offence so far. In this regard, the learned counsels place reliance on the decision reported in **Satender Kumar Antil vs Central Bureau Of Investigation [2022(4)KHC 570],** wherein in paragraphs 46 and 47 thereof, the observations regarding the necessity of the compliance of the statutory stipulations contained under section 436A of the Cr.PC is made. It is true that the Hon’ble Supreme Court insisted on compliance of the procedure contemplated under section 436A Cr.PC. However, as observed above, the stage at which the aforesaid provision becomes applicable has not been reached so far. Besides the same, the first proviso to section 436A provides that in certain circumstances, it shall be open for the court concerned to order the continued detention of the person for a period longer than one-half of the said period for the reason to be recorded after hearing the public prosecutor. In my view, these are the matters to be considered by the trial court, where the matter is now pending, upon the petitioner completes the term of detention stipulated under section 436A of Cr. PC. Therefore, I do not find any reason to invoke the aforesaid provision in these bail applications at this juncture. 13. Thus, after considering all the relevant aspects and taking into account the nature of the allegations, the gravity of the offences B.A.Nos.2659 & 4455 of 2022 11 alleged, criminal antecedents of the petitioner and the chances of absconding, I find that, this is a case in which bail cannot be granted to the petitioners at this stage. In such circumstances, these bail applications are dismissed. However, it is observed that, the trial court shall make an endevour to expedite the trial of the said case and to complete the same as expeditiously as possible. It is further clarified that dismissal of these applications would not stand in the way of the petitioners in seeking the benefit under section 436A of Cr.PC at the appropriate time before the trial court. ## **Sd/-** ``` ZIYAD RAHMAN A.A. JUDGE ``` pkk