Common Bail Applications in Crime No. 213/2024, Kallambalam Police Station, Thiruvananthapuram: Fathima Beevi v. State of Kerala; Beevi Kunju and Muhammed Shan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946** **BAIL APPL. NO. 3494 OF 2024** **CRIME NO.213/2024 OF Kallambalam Police Station,** **Thiruvananthapuram** **AGAINST THE ORDER/JUDGMENT DATED 18.04.2024 IN CMP NO.2149 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS - IV, ATTINGAL PETITIONER/S:** **FATHIMA BEEVI, AGED 20 YEARS D/O. ABDUL MAJEED, A.N. MANZIL, MUKKADA MARUTHIKUNNU NAVAYIKULAM, THIRUVANANTHAPURAM, PIN - 695603** **BY ADVS. C.P.UDAYABHANU NAVANEETH.N.NATH** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** - **2 STATION HOUSE OFFICER, KALLAMBALAM POLICE STATION,THIRUVANANTHAPURAM, PIN - 695605** **BY ADVS. SRI.C.K.SURESH, SR.PUBLIC PROSECUTOR SRI.GRACIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF PROSECUTION ADDL. STATE PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.06.2024, ALONG WITH Bail Appl..2586/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NOs. 3494 & 2586 OF 2024 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 6[TH] DAY OF JUNE 2024 / 16TH JYAISHTA, 1946** **BAIL APPL. NO. 2586 OF 2024** **CRIME NO.213/2024 OF Kallambalam Police Station,** ## **Thiruvananthapuram** **AGAINST THE ORDER/JUDGMENT DATED 19.03.2024 IN CRMC NO.661 OF 2024 OF DISTRICT COURT & SESSIONS COURT, THIRUVANANTHAPURAM PETITIONER/S:** - **1 BEEVI KUNJU,AGED 52 YEARS, D/O. SOUJATH BEEVI, A.N. MANZIL, KOONANCHALIL, MUKKU KADA,MARUTHIKUNNU.P.O., KUDAVOOR,THIRUVANANTHAPURAM, PIN - 695603** **2 MUHAMMED SHAN,AGED 28 YEARS, S/O. SHAJAHAN, POOVANKAL HOUSE, NADAYARA,MUTTAPALAM. P.O., CHEMMARUTHI VILLAGE. THIRUVANANTHAPURAM,PIN - 695145** **BY ADVS. C.P.UDAYABHANU NAVANEETH.N.NATH** ## **RESPONDENT/S:** - **1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **2 STATION HOUSE OFFICER,KALLAMBALAM POLICE STATION, THIRUVANANTHAPURAM, PIN - 695605** **BY ADVS. SRI.C.K.SURESH, SR.PUBLIC PROSECUTOR SRI.GRACIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF PROSECUTION ADDL. STATE PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.06.2024, ALONG WITH Bail Appl..3494/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NOs. 3494 & 2586 OF 2024 3 ## **COMMON ORDER** The applications are filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused in Crime No.213/2024 of the Kallambalam Police Station, Thiruvananthapruam, registered against the accused, for allegedly committing the offences punishable under Sections 323, 324, 325 and 302 r/w. Section 34 of the Indian Penal Code (in short, 'IPC'). The accused 1 and 2 were arrested on 28.02.2024 and the 3[rd] accused was arrested on 16.04.2024. B.A.No.2586/2024 is filed by the accused 1 and 2 and B.A.No.3494/2024 is filed by the 3[rd] accused. As the applications arise from the same crime, they were consolidated, jointly heard and are disposed of by this common order. 2. The gravamen of the prosecution case is that: on 20.02.2024, at around 22 hours, the accused, in furtherance of their common intention to murder Abdul Majeed (deceased and the husband of the 1[st] accused, step father of the 2[nd] accused and the father of the 3[rd] BAIL APPL. NOs. 3494 & 2586 OF 2024 4 accused), the 1[st] accused hit the deceased on the back of his head with the handle of a hoe, and the accused 2 and 3 pushed the deceased on to the floor and his head hit against the wall. Then, the accused kicked and beat the deceased all over his body and he suffered grievous injuries. The deceased lost his life on 25.02.2024 at 23.30 hours at the Medical College Hospital, Thiruvananthapuram. Thus, the accused have committed the above offences. 3. Heard; Sri.C.P.Udayabhanu, the learned counsel appearing for the petitioners and Sri.C.K.Suresh, the learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. A reading of the First Information Statement and the Final Report laid by the Investigating Officer would reveal that the offence under Section 302 cannot be attributed against the petitioners. In fact, in the same incident, the 2[nd] accused had also BAIL APPL. NOs. 3494 & 2586 OF 2024 5 suffered an injury due to the assault made by the deceased. It is an act of private defence that the 2[nd] accused had pushed the deceased on to the floor. Therefore, the accused cannot be attributed of having committed the murder of the deceased. The very fact that the deceased had not specifically mentioned that the accused had caused the injuries to him shows the hollowness in the prosecution. The accused 1 and 2 have been in judicial custody since 28.02.2024 and the 3[rd] accused has been in judicial custody since 16.04.2024. The investigation in the case is complete and the final report has been laid. The accused 1 and 3 are ladies. Hence, the petitioners may be enlarged on bail. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, opposing the application. It is stated that the 1[st] accused hit the deceased with the BAIL APPL. NOs. 3494 & 2586 OF 2024 **==> picture [7 x 9] intentionally omitted <==** handle of a hoe and the accused 2 and 3 pushed him on the ground and then all the accused stamped him and he suffered grievous injuries. The scene of occurrence and the hoe shows the presence of blood. Moreover, in Section 164 statement of the deceased and the dying declaration recorded by the Judicial First Class Magistrate-XII, Thiruvananthapuram, wherein the deceased has clearly stated that it was the accused who assaulted and caused grievous injuries to him. Subsequent to the recording of the dying declaration, the deceased lost his life on 25.02.2024. The postmortem report also reveals that there are corresponding injuries on the deceased, which in turn shows the complicity of the accused in the crime. If the accused are released on bail, it would certainly have a deleterious impact on the society. The accused may also intimidate the witnesses and tamper with the evidence, especially since the BAIL APPL. NOs. 3494 & 2586 OF 2024 7 deceased and the accused are relatives. Therefore, the applications may be dismissed. 6. The prosecution allegation against the accused is that on 20.02.2024, the 1[st] accused hit the deceased on his head with the handle of a hoe and he suffered a deep injury. Immediately thereafter, the accused 2 and 3 pushed the deceased on to the ground and his head hit against the wall and suffered injuries both on his head as well as neck, and he suffered a fracture on his neck. 7. I have perused the materials on record as well as the case diary. Both in the 164 statement given by the deceased as well as the dying declaration he has clearly stated that it was the 1[st] accused who hit him with a hoe on his head and the accused 2 and 3 who pushed him down to the ground and he hit his head and neck on the wall and suffered grievous injury. On an evaluation of the materials on record, prima facie, I find that there are BAIL APPL. NOs. 3494 & 2586 OF 2024 **==> picture [7 x 9] intentionally omitted <==** specific overt acts alleged against the accused 1 and 2. However, that is a matter to be decided at the time of trial. 8. It is well settled that at the stage of consideration of the bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. There is only a need to indicate in such orders reasons for prima facie concluding why bail is granted or refused, particularly where the accused is charged of having committed a serious offence [read **Kalyan Chandra Sarkar v. Rajesh Ranjan,** [(2004) 7 SCC 528]. 9. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly the 164 statement of the deceased, the dying declaration of the deceased recorded by the Doctor and also the postmortem certificate which shows BAIL APPL. NOs. 3494 & 2586 OF 2024 9 that the deceased lost his life due to the grievous injuries caused to his head and neck and further that it was the 1[st] accused who allegedly hit the deceased with the handle of a hoe and it was mainly the 2[nd] accused who pushed the deceased on to the floor, and his neck hit on the wall and suffered a fracture, I am prima facie satisfied that the accused 1 and 2 are not entitled to be released on bail. However, since there is no specific overt act as against the 3[rd] accused, who is also a lady and the daughter of the deceased, I hold that she is entitled to be released on bail, but subject to stringent conditions. 10. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the broad parameters for Courts while dealing with bail applications by holding as follows: > “9.xxx xxx xxx However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled BAIL APPL. NOs. 3494 & 2586 OF 2024 10 that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe 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”. ## 11. Similarly, in **Kalyan Chandra Sarkar v. Rajesh** **Ranjan's** case (supra), the Honourable Supreme Court observed thus: “11.The law regarding grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from nonapplication of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v.Sudarshan _Singh [(2002) 3 SCC 598] and uran v. Rambilas [(2001) 6 SCC 338.)”_ ## 12. In **Neeru Yadav v. State of U.P and another** ## [(2016) 15 SCC 422], the Hon'ble Supreme Court has BAIL APPL. NOs. 3494 & 2586 OF 2024 11 ## held as under: “ 13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilised society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society; and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus: "Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites; in proportion as their love to justice is above their rapacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things that men of intemperate minds cannot be free. Their passions forge their fetters [Alfred Howard, The Beauties of Burke (T. Davison, London) 109]." 14. E. Barrett Prettyman, a retired Chief Judge of US Court of Appeals had to state thus: "In an ordered society of mankind there is no such thing as unrestricted liberty, either of nations or of individuals. Liberty itself is the product of restraints; it is inherently a composite of restraints; it dies when restraints are withdrawn. Freedom, I say, is not an absence of restraints; it is a composite of restraints. There is no liberty without order. There is no order without systematised restraint. Restraints are the substance without which liberty does not exist. They are the essence of liberty. The great problem of the democratic process is not to strip men of restraints merely because they are restraints. The great problem is to design a system of restraints which will nurture the maximum development of man's capabilities, not in a massive globe of faceless animations but as a perfect realisation, of each separate human mind, soul and body; not in mute, motionless meditation but in flashing, thrashing activity. [Speech at Law Day Observances (Pentagon, 1962) as quoted in Case and Comment, Mar - Apr 1963]" 15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the BAIL APPL. NOs. 3494 & 2586 OF 2024 12 accused. What has weighed with the High Court is the doctrine of parity. A history - sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner. 16. In this regard, we may profitably reproduce a few significant lines from Benjamin Disraeli: "I repeat……… that all power is a trust - that we are accountable for its exercise - that, from the people and for the people, all springs, and all must exist." 17. That apart, it has to be remembered that justice in its conceptual eventuality and connotative expanse engulfs the magnanimity of the sun, the sternness of mountain, the complexity of creation, the simplicity and humility of a saint and the austerity of a Spartan, but it always remains wedded to rule of law absolutely unshaken, unterrified, unperturbed and loyal.” 13. The law has thus crystalised that while deciding an application for bail under Section 439, the courts are obliged to look into the nature, gravity and seriousness of the crime, the potential severity of the punishment that is likely to be imposed, the character, behaviour and standing of the accused, the prosecution’s legitimate apprehension regarding the tampering of evidence, the flight risk that is involved and whether releasing the accused on bail would have a deleterious impact on the society. BAIL APPL. NOs. 3494 & 2586 OF 2024 13 14. On an anxious consideration of the facts, rival submissions made across the Bar and the materials placed on record and on analysing the law on the point and also for the reasons mentioned above, I hold that the accused 1 and 2 are not entitled to be released on bail, but, the 3[rd] accused is entitled to be released on bail. In the result: - (1) B.A.No.2586/2024 is dismissed. - (2) B.A.No.3484/2024 is allowed, by directing the petitioner to be released on bail on her 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 court having jurisdiction, which shall be subject to the following conditions: - (i) The petitioner/3[rd] accused shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is filed. She shall also appear before the Investigating Officer as and when required; BAIL APPL. NOs. 3494 & 2586 OF 2024 14 - (ii) The petitioner/3[rd] accused shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii) The petitioner/3[rd] accused shall not commit any offence while she is on bail; - (iv) The petitioner/3[rd] accused shall surrender her passport, if any, before the court below at the time of execution of the bond. If she has no passport, she shall file an affidavit to the effect before the court below on the date of execution of the bond; - (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. BAIL APPL. NOs. 3494 & 2586 OF 2024 15 (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner/3[rd] accused even while the petitioner/3[rd] accused is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. (viii) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- **C.S.DIAS, JUDGE** rkc/06.06.24 BAIL APPL. NOs. 3494 & 2586 OF 2024 16 ## **APPENDIX OF BAIL APPL. 2586/2024** ## **PETITIONER ANNEXURES** **Annexure 1** **ORDER DATED 19-03-2024 IN CRMC 661/2024 ON DISTRICT COURT & SESSIONS COURT, THIRUVANANTHAPURAM** BAIL APPL. NOs. 3494 & 2586 OF 2024 17 ## **APPENDIX OF BAIL APPL. 3494/2024** ## **PETITIONER ANNEXURES** **Annexure 1 CERTIFIED COPY OF ORDER IN C.M.P. NO. 2149/2024 DATED 18.04.2024 PASSED BY THE HON'BLE JFCM COURT-IV, ATTINGAL,** **THIRUVANANTHAPURAM**