KANNAN@SAMJITH v. STATE OF KERALA

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 15[TH] DAY OF FEBRUARY 2024 / 26TH MAGHA, 1945 ``` ## `BAIL APPL. NO. 9711 OF 2022` ``` CRIME NO.50/2021 OF KODUNGALLUR POLICE STATION, THRISSUR ``` ## `PETITIONER:` ``` KANNAN@SAMJITH AGED 32 YEARS MANNATTARA HOUSE KARA PANCHAYATKULAM; EDAVILANGU, PIN – 680673 ``` ``` BY ADVS.M.SHAJU PURUSHOTHAMAN K.S.RAJESH ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` BY ADVS.ADVOCATE GENERAL OFFICE KERALA DIRECTOR GENERAL OF PROSECUTION(AG-10) P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR() ``` ## `OTHER PRESENT:` ``` PP SMT SHYNI V O ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.9711/2022 -:2:- Dated this the 15[th] day of February,2024 ## **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.50/2021 of Kodungallur Police Station, Thrissur, registered against him, for allegedly committing the offences under Sections 294(b), 323, 324, 326 & 302 of the Indian Penal Code, 1860(in short, ‘IPC’). The petitioner was arrested on 05.01.2021. 2. The essence of the prosecution case is that: on 03.01.2021, at around 9.10 a.m., the accused had an altercation with his father and he attacked his father with a wooden stick. In the attack, the father sustained grievous injuries, including a fracture on his ribs. The father succumbed to the injuries. Thus, the accused has committed the above offences. 3. Heard; Sri. M. Shaju Purushothaman, the B.A.No.9711/2022 -:3:- learned counsel appearing for the petitioner and Smt. Shyni V.O., the learned 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. He has been falsely implicated in the crime. He has been in judicial custody since 05.01.2021. The investigation in the case is complete and the final report has been laid on 20.03.2021. The petitioner’s further detention is unnecessary. Hence, the bail application may be allowed. 5. The learned Public Prosecutors seriously opposed the application. She contended that the petitioner had committed the gruesome murder of his father. The trial in the case is in progress. The petitioner’s earlier application was dismissed by this Court by Annexure-1 order. There is no change of B.A.No.9711/2022 -:4:- circumstances. If the petitioner is let off on bail, it would certainly hamper with the evidence and the petitioner may flee from justice. Hence, the application may be dismissed. 6. The prosecution allegation is that the petitioner out of his previous animosity with his father, had attacked and hit him with a wooden stick and the father sustained grievous injuries, including a fracture on his ribs and he succumbed to the same. 7. Although the petitioner had filed B.A.No.1160/2022 before this Court for a similar relief, the application was dismissed by Annexure-1 order, taking into account the nature and seriousness of the crime and also the fact that the petitioner was involved in eight other cases, including a crime for committing the offence under Section 302 of the IPC. 8. It cannot be gainsaid that the exceptional power to grant bail under Section 439 of the Code is B.A.No.9711/2022 -:5:- wide-ranging and discretionary, and 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 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 B.A.No.9711/2022 -:6:- 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 severity of the punishment, the reasonable apprehension of the accused tampering with the evidence or 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: B.A.No.9711/2022 -:7:- “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 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. B.A.No.9711/2022 -:8:- 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.” 13. On an anxious consideration of the facts, materials placed on record, the rival submissions made across the Bar and the proclamation of the law in the afore-cited precedents, 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 B.A.No.9711/2022 -:9:- prosecution that the petitioner may tamper with the evidence, notwithstanding the fact that the petitioner has been in judicial custody since 05.01.2021, I am not 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 meritless and is only liable to be dismissed. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/15.02.24 //True copy// P.A. To Judge