Bail Applications Nos. 7985 of 2020 and 9166 of 2020 v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942** ## **Bail Appl..No.7985 OF 2020** **CRIME NO.525/2020 OF MEDICAL COLLEGE POLICE STATION , Thrissur** ## **PETITIONER/S:** **SACHIN @ KODI PAMBARAM AGED 25 YEARS NOW RESIDING AT VILLADAM NELLIKKAD 680631** **BY ADVS. SRI.C.P.UDAYABHANU SRI.NAVANEETH.N.NATH** ## **RESPONDENT/S:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** **R1 BY PUBLIC PROSECUTOR R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **OTHER PRESENT:** ## **SRI.C.K.SURESH -SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06.01.2021, ALONG WITH Bail Appl..9166/2020, THE COURT ON 25.01.2021 PASSED THE FOLLOWING:** BAs 7985 & 9166/2020 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942** **Bail Appl..No.9166 OF 2020** **CRIME NO.525/2020 OF MEDICAL COLLEGE POLICE STATION , Thrissur** ## **PETITIONER/S:** **SIVADASAN@SIVAN AGED 35 YEARS VEERATH HOUSE, UMIKUNNU COLONY,ERUMAPETTY 680584** **BY ADV. SRI.VISHNUPRASAD NAIR** **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** **R1 BY PUBLIC PROSECUTOR R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 06.01.2021, ALONG WITH Bail Appl..7985/2020, THE COURT ON 25.01.2021 PASSED THE FOLLOWING:** BAs 7985 & 9166/2020 3 ## ASHOK MENON, J. ------------------------------------ ## BA Nos.7985/2020 and 9166/2020 ------------------------------------- Dated this the 25[th] day of January, 2021 ## **COMMON ORDER** Applications for regular bail under Section 439 of Cr.P.C. Applicants in the aforesaid applications are accused Nos.6 and 7 respectively in Crime No.525/2020 of Thrissur Medical College Police Station for having allegedly committed offences punishable under Sections 120B,143, 147, 148, 341, 324, 506(ii), 307 and 302 r/w Section 149 of IPC and also under Section 27 of the Arms Act. 2. The prosecution case, in brief, is this:- On 05[th] of July 2020 at about 10:00 PM, the applicants and seven others hatched a conspiracy at the house of the first accused, bearing House No. XII/434 of Varavur Grama Panchayat to murder Sijo, who was the 2[nd] accused in Crime 355/2019 of Peramangalam Police Station for committing the murder of Shyam and Christo, two associates of the accused, and invited the deceased Sijo to BAs 7985 & 9166/2020 4 come for a compromise talk. And in consequence of the conspiracy, by about 11:00 PM on 5[th] of July 2020 travelling in two Maruthi Swift cars, they reached the place called 'Manithara hump' in Avannur where Sijo was asked to meet them. and lay in wait for him. By about 00.40 hours, on 6/07/2020 when the deceased accompanied by his four friends reached the place on two motorcycles, realising that Sijo was not alone, the accused formed an unlawful assembly, and in prosecution of the common object of murdering Sijo, they knocked down motorcycles with the two cars in which the accused were waiting, and thereafter, got out of the cars committed riot armed with deadly weapons like swords and iron pipes and pounced upon the deceased Sijo with with vengeance, and attacked him with those weapons and caused his death. The friends of the deceased, were also attempted to be murdered by knocking them down from the motorcycles, and thereafter, they were intimidated with the weapons that they wielded. Accused 9 and 10 guarded either sides of the road during the incident to ensure that the members of Sijo's gang did not come to his assistance until their common object was accomplished. The deceased had allegedly BAs 7985 & 9166/2020 5 sustained 48 ante mortem injuries on his body, and succumbed to it instantaneously. The crime was registered on getting information from two persons who noticed the injured person lying on the road in a pool of blood. The applicants were arrested on 11.07.2020 and remanded to judicial custody. They continue in remand. 3. The applicants state that they are innocent and the allegations against them are not true. It is submitted that they have been falsely implicated,and had nothing to do with the crime. A6 states that he has just one more case against him for offence punishable under S.324 IPC. CW2 cited by the prosecution as an eyewitness and injured had gone to the Medical College Hospital on 06/07/2020 for treatment of his injuries, and had narrated an alleged history of fall from the bike. Hence, the prosecution version of the deceased being accompanied by his friends and and they having witnessed the occurrence is a make believe story contrived by the imagination of the investigating officer. Final report is already filed on completion of investigation, and hence, there is no purpose to detain the applicants. BAs 7985 & 9166/2020 6 4. Heard the learned counsels Sri C.P.Udayabhanu for A6 and Sri Vishnuprasad Nair for A7. The learned Sr. Public Prosecutor C.R Suresh appeared for the State. 5. The learned counsel appearing for A6, Sri C.P.Udayabhanu, has relied on a catena of decisions in support of his argument that the object of bail is not punitive but to secure the presence of the accused for trial. And that bail is the rule whereas its refusal is an exception. It is also submitted that even though the offence alleged is grave and serious, and there are several criminal cases pending against the accused, these factors by themselves cannot be the basis for refusal of prayer for bail. The decisions relied upon by him are _**Dr. Shivinder Mohan Singh v. Directorate of Enforcement [2020 SCC OnLine Del 766], Prabhakar Tiwari vs. State of U.P. and Anr [Crl. A. No. 154/2020]**_ and _**Suraj Kumar v. Union Territory of J & K [BA No. 259/2020]**_ in support of his arguments. 6. The learned Public Prosecutor has vehemently opposed the application for bail for the reasons which he states thus:- The applicants and other co-accused are members of a notorious criminal gang allegedly BAs 7985 & 9166/2020 7 involved in drug peddling and allied criminal activities. All the accused are involved in multiple criminal cases; A4 being involved in up to twenty criminal cases. Proceedings under the KAPPA were also initiated against a few of them. It is further stated by the learned Public Prosecutor that the applicants too are also not novices in the field. Both of them have criminal antecedents and belong to an organized gang of criminals. It is stated that there are materials to show that a conspiracy was hatched in the house of the 1st accused. It is in prosecution of that conspiracy and in prosecution of the common object of the unlawful assembly that the deceased was deceitfully invited over the phone by A1 to the scene of occurrence. It is stated by the learned Public Prosecutor that the deceased as also the assailants were at one point in time, members of the same gang involved in criminal activities, mainly in dealing with drugs. But because of their internal disputes with regard to the peddling of drugs, they split up and formed two rival warring gangs engaged in striking each other. They were involved in constant skirmishes and scuffles, which has led to the twin murder referred to above. It is in retaliation and in order to wreak vengeance, that the conspiracy in BAs 7985 & 9166/2020 8 the instant crime to eliminate deceased Sijo, was hatched. The immediate reason was that the deceased had recently intimidated A10. Considering all these facts and circumstances, the learned Public Prosecutor has opposed the applications for bail with much vehemence, stating that in case the applicants are released, there is every possibility of a flare-up in the gang rivalry that exists. 7. The learned Public Prosecutor has also relied on a number of decisions in support of his argument that bail cannot be granted to the accused in this crime. He relies on the decision in _**Chidambaram P** vs._ _**CBI [2020 Criminal Law Journal 663]**_ wherein it is held that the jurisdiction to grant bail has to be exercised on the basis of the well settled principles having regard to the facts and circumstances of each case. The nature of accusation and the severity of the punishment in the case of conviction and the nature of materials relied upon by the prosecution, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant of the witnesses, reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his absconding or BAs 7985 & 9166/2020 9 fleeing from justice, character, behaviour and standing of the accused and the circumstances which are peculiar to the accused as also the larger interest of the public or State and similar other considerations are to be considered while granting bail and that the discretion of the Court has to be exercised judiciously and not in an arbitrary manner. The learned Prosecutor has also relied on the decisions in _**Rajesh Ranjan Yadav@ Pappu Yadav v CBI [AIR 2007 SC 451]**_ , _**Virupakashappa Gouda and Ano vs. State of Karnataka and Ano [AIR 2007 SC 1685], State of U.P through CBI vs. Amarmani Tripathi [AIR 2005 SC 3490], Ram Govind Upadhyay v. Sudarshan Singh [AIR 2002 SC 1475],**_ and _**Prahalad Singh vs. NCT [Delhi AIR 2001 SC 1444]**_ in support of his argument opposing the bail. 8. _**In Prasanta Kumar Sarkar vs. Ashis Chatterjee and another [2010 (14) SCC 496],**_ it has been held that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors which can be reproduced in this passage: "9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground BAs 7985 & 9166/2020 10 to be believed 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." It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Art.21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Art.21, since the same is authorised by law. But even persons accused of non bailable offences are entitled to bail if the Court concerned comes to the conclusion that the BAs 7985 & 9166/2020 11 prosecution has failed to establish a prima facie case against him and / or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case, there is a need to release such persons on bail where fact situations require it to do so. (See _**Kalyan Chandra Sarkar v. Pappu Yadav [2005 KHC 604 : AIR 2005 SC 921]**_ ). _9._ After having heard the submissions made on either side, and on perusal of the records available, including the postmortem report, it indicates a heinous and brutal and pre meditated murder of a young man. The fact that there were 48 ante mortem wounds inflicted on the body of the deceased, and that his skull was ruptured, spilling out scattering the grey matter. It is true that the deceased was no saint. He was the second accused in a twin murder case, where two persons belonging to the gang of the accused herein were annihilated. He was involved in a number of other cases too. It is in retaliation of that murder, the present incident took place. His face has been mutilated beyond recognition with incessant blows inflicted with iron pipes and swords. The applicants too had inflicted specific injuries sufficient to cause death. A6 had allegedly carved the entire body of the deceased with BAs 7985 & 9166/2020 12 his sword. In case the applicants are granted bail, they are capable of posing threat to important witnesses and tamper with evidence. The circumstances where bail can be granted even in cases involving non bailable offences, as described in _**Kalyan Chandra Sarkar**_ (supra) does not apply to this case. On the other hand, there are strong indications of the invovement of the applicants and a prima facie case made out against them. Hence, I am of the opinion that the applicants are not entitled to bail. The final report has already been filed and I am sure that the trial court may endeavour to take the trial to its ultimate conclusion at the earliest, despite the restrictions of the pandemic times. The applications for bail are dismissed. Sd/- ASHOK MENON JUDGE jg