B.A.No.9395/23 (Bail Application No. 9395/2023) - In the High Court of Kerala at Ernakulam

B.A.No.9395/23 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 28[TH] DAY OF NOVEMBER 2023 / 7TH AGRAHAYANA, 1945_ _BAIL APPL. NO. 9395 OF 2023_ _CRIME NO.1255/2020 OF Anthikad Police Station, Thrissur PETITIONER/ACCUSED NO.7:_ _SMITH, AGED 44 YEARS, S/O.SANKARANARAYANAN, KAREPARAMBIL HOUSE, PERINGOTTUKARA DESOM, KIZHAKKEMURI VILLAGE, THRISSUR, PIN – 680 565._ _BY ADVS. S.RAJEEV V.VINAY M.S.ANEER ANILKUMAR C.R. PRERITH PHILIP JOSEPH SARATH K.P. K.S.KIRAN KRISHNAN_ ## _RESPONDENT/STATE:_ _STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031._ _THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ B.A.No.9395/23 2 ## **ORDER** This is an application filed u/s 439 of the Code of the Criminal Procedure seeking regular bail. 2. The petitioner is the 1[st] accused in Crime No.1255 of 2020 of Anthikkad Police Station, which was registered for the offences punishable under Sections 341, 302, 392, 506 r/w Section 34 of IPC. 3. The prosecution case is that on 10.10.2020 at around 11.15 a.m., the accused Nos.1 to 6 reached the public road near Magattukara Vattukulam Temple in a motor car with a common intention to kill the brother of the de facto complainant, one Mr.Nidhil. Thereafter, when he reached there in a car, he was pulled out of the car, and assaulted with sword and axe, thereby committed his murder. During the course of investigation, the petitioner was implicated as the 7[th] accused, as according to the prosecution, he participated in the conspiracy to commit the said murder. As part of the investigation, he was arrested on 20.10.2020 and since then he has been under detention. Even though, the petitioner filed an application seeking bail on an B.A.No.9395/23 3 earlier occasion, the same was dismissed as Annexure-V order. This is the second application submitted by him. 4. Heard Sri.S.Rajeev, learned counsel for the petitioner and Sri.Jacob E.Simon, learned Public Prosecutor for the State. 5. The learned counsel for the petitioner submits that the petitioner has been in custody for more than three years and even as per the prosecution case, no specific overt act has been alleged against him. The other accused against whom similar allegations are raised were already released on bail and the learned counsel brought the attention of this Court to the orders passed in those bail applications, which are produced along with this bail application. Petitioner further submits that he is ready and willing to cooperate with the trial and shall abide by any condition that may be imposed by this Court. 6. On the other hand the learned Public Prosecutor opposed the said contention by pointing out that the petitioner is a person having criminal antecedents as he is involved in eight other cases. Criminal antecedents were taken note of by this Court in Annexure-V order and dismissed the said application, considering the same. As per the prosecution case, he was the B.A.No.9395/23 4 main person behind the attack and therefore, the learned Public Prosecutor seeks dismissal of the application. 7. I have carefully gone through the records. As rightly pointed out by the learned counsel for the petitioner, the petitioner has been under judicial custody for more than three years. The learned counsel places reliance upon the decision rendered by the Honourable Supreme Court in **Union of India v. Najeeb [2021(4) KLT SN 49]** , wherein it was observed in paragraph No.16 as follows: “16. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In **Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India [1994 (2) KLT Online 1142(SC)=(1994) 6 SCC 731]** , it was held that under-trials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is B.A.No.9395/23 5 left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.” 8. The learned counsel for the petitioner also places reliance upon the decisions rendered by the Honourable Supreme Court in **Prabhakar Tewari v. State of U.P and Others [(2020) 11 SCC 648]** and **Sanjay Chandra v. C.B.I [2012(1) KLT SN 36]** . When the facts and circumstances existing in this case are considered in the light of the principles laid down by the Honourable Supreme Court in the above referred decisions, I find some force in the contention of the learned counsel for the petitioner. The fact that the petitioner has been under judicial custody for the past three years cannot be brushed aside. Of course, it is true that the petitioner was involved in eight other cases, but the long incarceration of the petitioner without trial is something which affects his personal liberty and it is reported that, the trial in this case is likely to be take some time. In such circumstances, taking note of the aforesaid aspects, I deem it B.A.No.9395/23 6 appropriate to grant bail to the petitioner upon stringent conditions to ensure his cooperation to the trial. In the result, the application is allowed on the following conditions:- (i) The petitioner shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court. (ii) The petitioner shall appear before jurisdictional court as and when required. (iii) The petitioner shall not commit any offence of similar nature while on bail. (iv) The petitioner shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation. (v) The petitioner shall not leave India without the permission of the trial Court. (vi) The petitioner shall surrender his passport before the jurisdictional court and if the petitioner is not having a valid passport, file an affidavit to that effect. B.A.No.9395/23 7 In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/28.11.23 8 B.A.No.9395/23 ## _APPENDIX OF BAIL APPL. 9395/2023_ ## _PETITIONER ANNEXURES_ - _Annexure-I_ _A COPY OF THE BAIL ORDER GRANTING BAIL TO ACCUSED NOS. 8 AND 9 IN CRL.M.C. NO.839/2021 DATED 08-07-2021_ _Annexure-II_ - _A COPY OF THE BAIL ORDER GRANTING BAIL TO ACCUSED NOS. 10 AND 11 BY HON'BLE HIGH COURT OF KERALA IN BA NO.7677/2020 DATED 26-11-2020_ _Annexure-III_ - _A COPY OF THE BAIL ORDER GRANTING BAIL TO ACCUSED NO.12 BY THE HON'BLE HIGH COURT OF KERALA IN BA NO.2447/2023 DATED 05-062023_ _Annexure-IV_ - _A COPY OF THE BAIL ORDER GRANTING BAIL TO ACCUSED NO.13 IN CRL.M.C. NO.1152/2020 DATED 13-11-2020 BY SESSIONS COURT, THRISSUR_ _Annexure-V_ _A COPY OF THE BAIL ORDER DATED 06-07-2023 IN BA NO.3349/2022 BY HON'BLE HIGH COURT OF KERALA_