Bava U. v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022/16TH AGRAHAYANA,** ## **1944** **BAIL APPL. NO. 6431 OF 2022** **CRIME NO.1989/2021 OF PALAKKAD TOWN SOUTH POLICE STATION** ## **PETITIONER/10TH ACCUSED:** **BAVA U AGED 57 YEARS, S/O.UMER, DARUSSALAM, PALLIPPARAMBU, ALATHUR P.O., PALAKKAD DISTRICT, PIN - 678541** **BY ADVS. SRI.SUNNY MATHEW SMT.NIKITTA TRESSY GEORGE** ## **RESPONDENT/COMPLAINANTS & STATE:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM**| ||**COCHIN, PIN - 682031**| |**2**|**THE STATION HOUSE OFFICER**| ||**TOWN SOUTH POLICE STATION ,**| ||**PALAKKAD DISTRICT, PIN - 679101**| |***3**|**ADDL.R3. ARSHIKA**| ||**AGED 27 YEARS, W/O. SANJITH,**| ||**MAMBARAM, KINASSERY,**| ||**PALAKKAD DISTRICT, PIN – 678701.**| ***(ADDL.R3 IS IMPLEADED AS PER ORDER DATED 11-11-2022 IN CRL.M.A. NO.1/2022. BY ADVS. SRI.K.B.ARUNKUMAR** B.A. No.6431/22 **-:2:-** **SRI.GRACIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF PROSECUTION SMT.POOJA K.S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.11.2022, THE COURT ON 07.12.2022 PASSED THE FOLLOWING:** **-:3:-** B.A. No.6431/22 **BECHU KURIAN THOMAS, J. -------------------------------B.A. No.6431 of 2022 ---------------------------------** Dated this the 7[th] day of December, 2022 ## **ORDER** This is an application for regular bail filed under section 439 of the Code of Criminal Procedure, 1973. 2. Petitioner is the 10[th] accused in Crime No.1989 of 2021 of Palakkad Town South Police Station, alleging offences punishable under sections 120(b), 143, 144, 147, 148, 341, 302, 109, 118, 201, 212, 465, and 471 r/w section 149 of the Indian Penal Code, 1860 and also under section 27(3) r/w section 7(a) (b) of the Arms Act, 1959. 3. The crime relates to the murder of Sri. Sanjith, who was an active worker of the RSS. According to the prosecution, on 15.11.2021, the said Sri.Sanjith was murdered by accused 1 to 5 after forming themselves into an unlawful assembly and armed with dangerous weapons. Prosecution claims that while the deceased was travelling on a motorbike along with his wife, the accused rammed into him and thereafter hacked him to death in front of his wife. **-:4:-** B.A. No.6431/22 4. Petitioner, as accused No.10, has been roped in as one of the main conspirators to the murder, and he was arrested on 06.05.2022. 5. Sri.Sunny Mathew, the learned counsel for the petitioner, vehemently argued that the only role attributed to the petitioner is that of a conspirator and that there is no shred of evidence or material to connect him either with the crime or with any conspiracy. Learned counsel also contended that petitioner is the District President of an organisation called SDPI, and he has been arrayed as an accused solely on an assumption and without any material. The learned counsel also submitted that petitioner has no antecedents at all and that he is only a school teacher. In the absence of any material linking him with the alleged conspiracy, his further detention is contrary to his right to liberty under Article 21 of the Constitution of India. Learned counsel referred to the alleged telephone calls between the first accused and the petitioner, which is sought to be relied upon by the prosecution as one of the crucial material to link him with the crime and submitted that as the petitioner was the Divisional President of the organisation and the first accused being the head of another local area, they would have invariably been B.A. No.6431/22 **-:5:-** conversing with each other on various aspects of the functioning of the organisation, and that cannot under any circumstances lead to an assumption that petitioner was a conspirator to commit a murder. Learned counsel referred to the statements of CW298, CW129 and CW130, whose statements are sought to be utilised as material to link the petitioner with the crime. The learned counsel contended that the aforesaid witnesses speak nothing against the petitioner, and in such circumstances, his continued detention is not justified. The counsel concluded by submitting that petitioner is willing to abide by any conditions that may be imposed upon him, including remaining out of the district itself. The learned counsel relied upon the decisions in **Satender Kumar Antil v. Central Bureau of Investigation and Another** (2022 (4) KHC 570) and **Sanjay Chandra v. Central Bureau of Investigation** [(2012) 1 SCC 40]. 6. Sri.Gracious Kuriakose, learned Additional Director General of Prosecution, on the other hand, opposed the application and contended that the murder of Sri.Sanjith on 26.07.2020 was a well-planned political murder, which was part of a series of murders committed, all conspired by the petitioner and others. The learned Additional Director General of **-:6:-** B.A. No.6431/22 Prosecution pointed out that one Sakeer Hussain was attempted to be murdered on the anniversary of the murder of Sanjith and on 15.11.2021, one Sri.Sajith was attacked, followed by the murder of Sri.Subair on 15.04.2022. Two murders that took place subsequent to the murder of the deceased in the instant case were all part of the conspiracy to murder the political rivals, and petitioner's role is significant in the crime. 7. According to the prosecution, it is only after the petitioner was apprehended that the attacks stopped and therefore, it is evident that petitioner is the mastermind behind these murders. It was also argued that prior to the incident of murder, there were 87 mobile calls and 10 short messages between the petitioner and the first accused and that the call data records reveal the repeated contacts being made by the petitioner with other accused, all of which indicates his involvement in the conspiracy to murder the deceased Sanjith. Another crucial aspect pointed out by the learned Additional Director General of Prosecution was that, soon after the murder, the first accused contacted the petitioner, and thereafter, he switched off his phone. It was further submitted that within two days of the murder, petitioner absconded and was traced to a **-:7:-** B.A. No.6431/22 remote area in a far-off district, that too, after several months. The learned Additional Director General of Prosecution submitted that circumstances have been adduced to prove the involvement of the petitioner as a mastermind behind the killings. The learned Additional Director General of Prosecution further submitted that the nature of the offence, the circumstances prevailing in the locality, the danger that will ensue if the petitioner is released, all of which would indicate that petitioner ought not to be released on bail pending trial. It was also submitted that there is sufficient material against the petitioner, apart from the statements of the witnesses, which are all admissible as evidence during the trial. In support of his contentions, the learned Additional Director General of Prosecution relied upon the decisions in **Ishwarji Nagaji Mali v. State of Gujarat and Another** [(2022) 6 SCC 609], **Pawan Kumar Alias Monu Mittal v. State of Uttar Pradesh and Another** [(2015) 7 SCC 148], **Kalyan Chandra Sarkar v. Rajesh Ranjan alias pappu yadav and Another** [(2004) 7 SCC 528], **Mohmed Inayatullah v. State of Maharashtra** [(1976) 1 SCC 828], **State of Maharashtra v. Damu S/o Gopinath Shinde and Others** [(2000) 6 SCC 269] & **Pulukuri** B.A. No.6431/22 **-:8:-** **Kottaya and Others v. The King-Emperor** (Privy Council Appeal No.37 of 946). 8. Sri.K.B.Arunkumar, the learned Counsel for the defacto complainant, also vehemently opposed the application and submitted that the statements of witnesses arrayed as charge witnesses clearly speak about the involvement of the petitioner in the conspiracy and also pointed out that the petitioner was the main conspirator of the crime. It was further submitted that even the defacto complainant's life could be in danger if the petitioner is released on bail. The learned Counsel also adopted the arguments advanced on behalf of the State. ## 9. I have considered the rival contentions. 10. Though the object of bail is neither punitive nor preventive, courts have noted that in certain circumstances, the need to have a custodial trial is a necessity for reasons which are peculiar to each individual case. Every application for bail deserves to be considered in the light of the distinctive features arising in the particular case. ## 11. In the decision in **Satendar Kumar Antil v. Central Bureau of Investigation and Another** (2022 SCC Online SC 825), the Supreme Court held that the seriousness of the charge **-:9:-** B.A. No.6431/22 and the severity of the punishment has to be taken into account while considering an application for bail. 12. Similarly, in the decision in **Sanjay Chandra v. Central Bureau of Investigation** [(2012) 1 SCC 40], the Supreme Court had observed that the grant or refusal to grant bail lies within the discretion of the court and is regulated to a large extent by the facts and circumstances of each particular case. The court had also observed that bail should not be denied merely because of the sentiments of the community against the accused, and the primary purpose of bail in a criminal case is to relieve the accused of imprisonment, to alleviate the State of the burden of keeping the accused pending trial and at the same time to keep him constructively in the custody of the court before conviction to assure that he will submit to the jurisdiction of the court and be in attendance, whenever his presence is required. 13. With the aforesaid principles in mind, when the circumstances of this case are appreciated, it is noticed that the petitioner is alleged to be the main conspirator of the murder. The allegation that prior to the murder, there were about 85 calls between the petitioner and the first accused and immediately **-:10:-** B.A. No.6431/22 after the crime, the first accused had contacted the petitioner, pursuant to which the telephone of the petitioner was switched off, and the various telephone call records between him and other accused are prima facie, significant circumstances which cannot be ignored in a case of this nature, atleast at this juncture. Further, the alleged withdrawal of Rs. 50,000/- on 11-08-2021 and handing it over to the 1[st] accused on 14-08-2021 is also crucial, atleast prima facie. Of course, the merits of those materials will have to be tested during the trial, and this Court cannot, at this phase, appreciate the relevancy or otherwise of those materials. However, the prosecution allegation that the petitioner is the ‘king conspirator’ and that his release will affect the prosecution during trial cannot be brushed aside lightly. 14. The prosecution allegation that the witnesses would be intimidated by the sheer presence of the petitioner outside, as he is the leader of a very powerful organisation, capable of influencing various witnesses who are arrayed in the case, also cannot be ignored. This Court cannot brush aside the contention of the prosecution that the situation in the locality will be very tense if the petitioner is released and that even his own life will **-:11:-** B.A. No.6431/22 be under threat. Further, if the life of the petitioner is under threat, releasing him on bail would restrict his own ability to ensure his presence during the trial, and the same itself is a reason not to release him on bail at this juncture. The circumstance that the petitioner absconded from the place and remained aloof for months together, evading the process of law, also weighs against his release on bail. 15. Taking note of the nature of allegations and the contentions advanced, including the series of murders that occurred, after the murder of deceased Sanjith and prior to the arrest of the petitioner, I am of the view that releasing the petitioner on bail would prejudice the prosecution case especially since, the intimidation and influence that can be exerted by the petitioner over the witnesses cannot be ignored. 16. In such circumstances, I find that the petitioner is not entitled to be released on bail pending trial. Accordingly, I dismiss this application. ## **BECHU KURIAN THOMAS JUDGE** vps