Jobin@Kiran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 25TH DAY OF JANUARY 2021 / 5TH MAGHA, 1942** ## **Bail Appl..No.7439 OF 2020** **CRIME NO.0993/2019 OF Punnapra Police Station , Alappuzha** ## **PETITIONER/S:** **1 JOBIN@KIRAN AGED 26 YEARS ARACKAL HOUSE, NORTH POONTHOPPU SCHOOL, WARD NO.1, PUNNAPRA, NORTH 688014 2 JOBIN@KIRAN AGED 26 YEARS ARACKAL HOUSE, NORTH OF POONTHOPPU SCHOOL,WARD NO.1, PUNNAPRA NORTH PANCHAYATH, ALAPPUZHA 688014 BY ADV. SRI.DEEPAK MOHAN** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031** ## **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** ## **SRI.C.N.PRABHAKARAN -SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13.01.2021, THE COURT ON 25.01.2021 PASSED THE FOLLOWING:** BA 7439/2020 2 ## ASHOK MENON, J. ------------------------------------ ## BA No. 7439 of 2020 ------------------------------------- Dated this the 25[th] day of January, 2021 ## O R D E R Application filed under Section 439 of the Cr.P.C. The applicant is the 7[th] accused in crime No.993/2019 of Punnapra Police Station for having allegedly committed offences punishable under Sections 143, 147, 148, 367, 302, and 201 read with Section 149 of the I.P.C. 2. The applicant was arrested on 26/08/2019 and remanded to judicial custody. The bail application filed by the applicant and the other accused before the Sessions Court, Alappuzha was dismissed. The applicant has approached this BA 7439/2020 3 Court for indulgence. 3. The applicant states that he is totally different and the charges levelled against him are false and frivilous. He is only 26 years old and a daily wage earner and is the only breadwinner of his family. He is willing to co-operate with the investigation and undertakes to abide by any conditions that may be imposed. 4. Heard the learned counsel appearing for the applicant Sri.Deepak Mohan and the learned Public Prosecutor. Records perused. 5. The learned Prosecutor submits that the accused in this crime inclusive of the applicant are habitual offenders. The deceased was also having criminal antecedents. The death was BA 7439/2020 4 caused due to gang rivalry. In case the accused are released on bail, there is every possibility of there being a retaliation resulting in worsening of the law and order in the locality. The applicant is capable of intimidating and influencing witnesses. Hence it is prayed that the application may be dismissed. 6. After having heard the submissions on either sides and on perusal of the records made available, I find that most of the accused in this crime are having multiple criminal cases registered against them and the applicant also is involved in such crimes. But some of the other accused are having more criminal cases registered against them. The applicant is also involved in an Abkari and NDPS cases. The post-mortem report indicates that the deceased had sustained eighteen BA 7439/2020 5 antemortem injuries. This indicates the brutality and motive of the assault. 7. The supreme Court has in Chaman Lal vs. State of U.P. and another [2004 (7) SCC 525], stated that the requisite factors to be kept in mind while considering an application for bail are: (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. 8. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and another [2010 (14) SCC 496] , the circumstances and factors to be kept in mind while considering application for bail are BA 7439/2020 6 ennumerated thus: "9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to be believed 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." From the aforesaid principles, it is quite clear that an order of BA 7439/2020 7 bail cannot be granted in an arbitrary or fanciful manner. In this context, it is also profitable to reproduce a passage from Neeru Yadav vs. State of Uttar Pradesh and another [2014 (16) SCC 508] , wherein the Supreme Court setting aside an order granting bail observed thus: "The issue that is presented before us is whether this Court can annul the order passed by the High Court and curtail the liberty of the 2nd respondent. We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has BA 7439/2020 8 enormous impact on his mind as well as body. A democratic body polity which is wedded to rule of law, anxiously guards liberty. But, a pregnant and significant one, the liberty of an individual is not absolute. The society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the collective and to the societal order. Accent on individual liberty cannot be pyramided to that extent which would bring chaos and anarchy to a society. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. No individual can make an attempt to create a concavity in the stem of social stream. It is impermissible. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly things which the society disapproves, the legal consequences are bound to follow. At that stage, the Court has a duty. It cannot abandon its BA 7439/2020 9 sacrosanct obligation and pass an order at its own whim or caprice. It has to be guided by the established parameters of law." 9. There is sufficient prima facie material available to indict the applicant. Considering his antecedents, it may not be proper to release him on bail, running the risk of the trial being affected by infuencing, intimidating and even harming the witnesses. The bail application is therefore dismissed. Sd/- ASHOK MENON JUDGE jg