HabeeB @ Quarter @ Arif v State of Kerala

1 BA No.2313 of 2024 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 2313 OF 2024 ``` ``` CRIME NO.1821/2023 OF Pathanamthitta Police Station, ``` ``` Pathanamthitta ``` ## **`PETITIONER/S:`** ``` HABEEB @ QUARTER @ ARIF ,AGED 38 YEARS S/O RAHIM,'PALLIMURUPPEL VEEDU',VALAMCHUZY, KUMBAZHA MURI, PATHANAMTHITTA VILLAGE.NOW RESIDING AT ALANKARATHU PUTHEN VEEDU,KULASEKHARAPATHY, PATHANAMTHITTA VILLAGE,PATHANAMTHITTA DISTRICT, PIN - 689645 ``` ``` BY ADVS. ``` ``` S.SHANAVAS KHAN S.INDU ``` ``` KALA G.NAMBIAR ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER , PATHANAMTHITTA POLICE STATION,PATHANAMTHITTA DISTRICT, PIN - 689645`** ``` Additional Director General of Prosecution Sri Grashious Kuriakose ,Sr PP Sri C.K Suresh ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.2313 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.2313 of 2024** ## **-----------------------------------** ## **Dated this the 23[rd] day of May, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.1821/2023 of the Pathanamthitta Police Station, registered against the accused (five in number), for allegedly committing the offences punishable under Secs.120B, 449, 397, 461, 380, 302, 201 and 414 read with Sec.34 of the Indian Penal Code. The petitioner was arrested on 6.1.2024. 2. The gravamen of the prosecution case is that: the accused, in furtherance of their common intention, had hatched a conspiracy to commit the murder of one George Unnunni (deceased), who was running a shop named ‘Puthuvelil Stores’ at Mylapra, and in pursuance of their 3 BA No.2313 of 2024 common intention, on 30.12.2023, the first accused had taken the accused 2 to 4 in an auto-rickshaw bearing registration No.KL 04/AC 9963 to the shop of the deceased. Then, the accused 2 to 4 entered the shop of the deceased by acting as customers and committed the murder of the deceased by strangulating him. The fourth accused had robbed a gold chain and Rs.70,000/- of the deceased. The fourth accused entrusted the gold chain to the second accused who in turn entrusted the same to the first accused, who gave it to the fifth accused, his relative. Thus, the accused has committed the above offences. 3. Heard; Sri.S.Shanavas Khan, the learned counsel appearing for the petitioner and Sri.C.K.Suresh, the learned Special Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled 4 BA No.2313 of 2024 against him. A reading of Annexure-A FIR and also the final report laid by the Investigating Officer reveal that there is no specific overt act alleged against the petitioner who had only taken the accused 2 to 4 in his auto-rickshaw to the alleged place of occurrence. It was the accused 2 to 4 who allegedly murdered the deceased. The Court of Session has enlarged the fifth accused on bail as per its order dated 28.2.2024 in Crl.M.P No.1082/2024. The petitioner is at par with the fifth accused. Since the investigation is complete and final report has been laid, the petitioner’s further detention is unnecessary. Therefore, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the petitioner is a person with criminal antecedents. The petitioner is a hardcore criminal and is involved in three other cases namely, Crime 5 BA No.2313 of 2024 Nos.2792/2015 and 269/2011 of the Pathanamthitta Police Station and Crime No.646/2014 of the Sethaparpanalloor Police Station, Tamil Nadu. There are incriminating materials to show the petitioner’s active involvement in the crime. Actually, the petitioner is the kingpin of the incident. It was the petitioner who took the accused 2 to 4 to the shop room of the deceased and made them to commit the murder of the deceased. In addition to the same, it was at the behest of the petitioner that the gold ornaments of the deceased were sold by the fifth accused. If the petitioner is enlarged on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence because he is a habitual offender. Moreover, the petitioner has no roots in any given place. Therefore, there is every likelihood of him fleeing from justice. Hence, the application may be dismissed. 6 BA No.2313 of 2024 6. The prosecution allegation against the petitioner is that, he had taken the accused 2 to 4 to the place of incident and caused the murder of the deceased on 30.12.2023. Thereafter, the accused had taken away the gold chain and money of the deceased and sold it through the fifth accused. 7. On an evaluation of the materials on record, it can be gathered that the petitioner is an accused in three other crimes of which Crime No.269/2011 is registered for allegedly committing the offence under Sec.379 of the IPC. The materials on record prima facie shows the petitioner’s active involvement in the crime. But, that is a matter to be decided at the time of trial. 8. 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: 7 BA No.2313 of 2024 “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 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”. ## 9. Similarly, in **Kalyan Chandra Sarkar v. Rajesh Ranjan,** [(2004) 7 SCC 528], 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 non-application of mind. It is also necessary for 8 BA No.2313 of 2024 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.) 10. Likewise, in **Gurucharan Singh Ors. V. State** (Delhi Administration) [(1978) 1 SCC 118], the Honourable Supreme Court has held that while considering an application of bail, it is necessary to consider the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar factors which may be relevant in the facts and circumstances of the case. 9 BA No.2313 of 2024 11. 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 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.” 12. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar and on comprehending the nature, gravity and seriousness of the accusations levelled against the petitioner, that the petitioner is a person with criminal antecedents, that the apprehension projected by the 10 BA No.2313 of 2024 prosecution that the petitioner may intimidate the witnesses and tamper with the evidence and further that if the petitioner is enlarged on bail, it would have a deleterious impact on the society, I am convinced that the petitioner is not entitled to be released on bail because there is a danger of justice being thwarted. ## Resultantly, the bail application is dismissed. sd/- sks/23.5.2024 **C.S.DIAS, JUDGE**