Gireesh @ Gireesh Kumar @ Chinkuttan @ ChinkuttY v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945** **BAIL APPL. NO. 1294 OF 2024** **CRIME NO.567/2022 OF Cheruthuruthy Police Station, Thrissur** ## **PETITIONER/ACCUSED:** **GIREESH @ GIREESH KUMAR @ CHINKUTTAN @ CHINKUTTY AGED 38 YEARS S/O. BALAKRISHNAN, PUTHENPURAKKAL HOUSE, PAIMKULAM, VAZHALIPADAM DESOM, THALAPPILLY, THRISSUR, PIN - 680585** ## **BY ADV RESMI NANDANAN** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28)** **adgp sri grashious kuriakose ,sr pp sri c k suresh** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 1294 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.567/2022 of Cheruthuruthy Police Station, Thrissur, registered against him, for allegedly committing the offence under Section 302 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioner was arrested on 29.11.2022. 2. The crux of the prosecution case is that: on 28.11.2022, at around 9.00 hours., the accused due to his previous animosity inflicted cut injuries on the face and neck of CW1's uncle named Vasudevan (deceased) with a chopper in a property owned by Balakrishnan Nair. The deceased succumbed to the injuries then and there on the spot. Thus, the accused has committed the above offence. **BAIL APPL. NO. 1294 OF 2024** **3** 3. Heard; Smt. Resmi Nandanan, the learned counsel appearing for the petitioner and Sri.C.K.Suresh, the learned Senior Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. A reading of FIR as well as the Final Report would substantiate that the offence will not be attracted. At any rate, the petitioner has been in judicial custody since 29.11.2022, the investigation in the case is complete, the recovery has been effected and the final report has been laid. Therefore, the petitioner’s further detention is unnecessary. Hence, the bail application may be allowed. 5. The learned Public Prosecutors seriously opposed the application. He contended that in addition to the above crime, the petitioner has also **BAIL APPL. NO. 1294 OF 2024** **4** committed an offence under Section 307 and Crime No.568/2022 has also been registered against him by the very same Police Station. In that case also, the petitioner has been remanded to judicial custody and that case has been numbered as SC No.1132/2023 and is pending before the same Court of Session. If the petitioner is released on bail, there is every likelihood of him intimidating witnesses, tampering with the evidence and also fleeing from justice. 6. The prosecution allegation against the petitioner is that he had out of his previous animosity with the deceased, had inflicted cut injuries on his neck and face of the deceased, who lost his life. Indisputably, the petitioner is also an accused in Crime No.568/2022 of the same Police Station for allegedly committing the offence under Section 307 of the Indian Penal Code. Both the cases are pending trial before the Court of **BAIL APPL. NO. 1294 OF 2024** **5** Session. 7. Even though the petitioner had filed similar applications for bail before the Court of Session, Thrissur, the learned Sessions Judge by Annexures 1 and 2 orders dismissed the said applications on the finding that the petitioner may tamper with the evidence and influence the witnesses. 8. It cannot be gainsaid that the exceptional power to grant bail under Section 439 of the Code is wide-ranging and discretionary. The power is to be exercised judiciously. 9. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr. [(2010) 14 SCC 496]** , the Honourable Supreme Court has observed as follows: - “9. …...... It is well settled 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 **BAIL APPL. NO. 1294 OF 2024** **6** 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 danger, of course, of justice being thwarted by grant of bail.” 10. Subsequently, in **Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and another [(2005) 2 SCC 42]** , the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the **BAIL APPL. NO. 1294 OF 2024** **7** severity of the punishment, the reasonable apprehension of the accused with the evidence or tampering apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the evidence by the accused. ## 11. In **Mahipal v. Rajesh Kumar [(2020) 2 SCC** ## **118]** , the Hon'ble Supreme Court has held thus: “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not **BAIL APPL. NO. 1294 OF 2024** **8** required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” 12. It is also worth recollecting the observations made by the Hon'ble Supreme Court in **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr [(2012) 9 SCC 446]** in the following lines: “30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed **BAIL APPL. NO. 1294 OF 2024** **9** whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.” 13. After bestowing my anxious consideration of the facts, materials placed on record, the rival submissions made across the Bar, I prima-facie find the accusations to be true. On comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, the potential severity of the punishment that is likely to be imposed on him, the petitioner is a person with criminal antecedents and the reasonable apprehension projected by the prosecution that the petitioner may tamper with the evidence, notwithstanding the fact that the petitioner has been in judicial custody since 29.11.2022, I am not **BAIL APPL. NO. 1294 OF 2024** **10** convinced and satisfied that the petitioner is to be released on bail, as it would have a deleterious impact on the society. Hence, I hold that the application is misconceived and is only liable to be dismissed. Resultantly, the application is dismissed. **Sd/- C.S.DIAS(J) JUDGE** lsn