Lijesh K. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944** **BAIL APPL. NO. 5953 OF 2022** **AGAINST THE ORDER/JUDGMENTCMP 1268/2022 OF JUDICIAL MAGISTRATE OF FIRST** ## **CLASS ,THALASSERY** **CRIME NO.183/2022 OF NEW MAHI POLICESTATION, KANNUR** **PETITIONER/ACCUSED NO.1:** **LIJESH K.,AGED 38 YEARS,S/O JANARDHANAN K, SREESANKARALAYAM,KOMAL VIYAL, TEMPLE GATE P O.,THALASERRY - 670102** **BY ADVS.S.RAJEEV,V.VINAY M.S.ANEER,SARATH K.P. PRERITH PHILIP JOSEPH** ## **RESPONDENT/State:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM -682 031 (CRIME NO 183/2022 OF NEW MAHI POLICE STATION, KANNUR DISTRICT)** **BY SRI.GRACIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.10.2022, ALONG WITH Bail Appl..6792/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.5953 & 6792/2022 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944** **BAIL APPL. NO. 6792 OF 2022** **AGAINST THE ORDER/JUDGMENT IN Bail Appl. 4178/2022 OF HIGH COURT** ## **OF KERALA** **CRIME NO.183/2022 OF NEW MAHE POLICESTATION** **PETITIONER/ACCUSED NO.13:** **ATMAJ.S.ASHOK,AGED 25,S/O.ASOKAN, SAMANG HOUSE, KODIYERI AMSOM, MADAPEEDIKA, KANNUR DISTRICT, PIN - 670671** **BY ADVS.R.ANIL, B.RAMAN PILLAI (SR.) M.SUNILKUMAR,SUJESH MENON V.B. THOMAS ABRAHAM (NILACKAPPILLIL) THOMAS SABU VADAKEKUT,MAHESH BHANU S. S.LAKSHMI SANKAR,RESSIL LONAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682031** ## **OTHER PRESENT:** **BY ADGP - SRI. GRACIOUS KURIAKOSE** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.10.2022, ALONG WITH Bail Appl..5953/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.5953 & 6792/2022 3 ## **VIJU ABRAHAM, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - ## **B.A. Nos.5953 & 6792 of 2022** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of October, 2022 ## **ORDER** These are applications for regular bail. 2. B.A.No.5953/2022 is filed by the 1[st] accused, whereas B.A. No.6792/2022 is filed by accused No.13 in Crime No.183 of 2022 of New Mahe Police Station, Kannur District registered alleging commission of offences punishable under Sections 143, 147, 148, 447, 204, 120B and 302 read with Section 149 of the Indian Penal Code (in short, “IPC”). 3. The prosecution allegation is that, the accused who are workers of BJP/RSS were in inimical terms with one Haridasan, a CPI(M) loyalist in connection with an incident which occurred on 08.02.2022 near to Kooloth Bhagavathi Temple in which accused Nos.10 and 11 were attacked by the said Haridasan and his friend named Angi Suran. Due to said animosity and political rivalry, the accused entered into a criminal conspiracy to commit murder of said Haridasan and on 21.02.2022 the accused formed themselves BA No.5953 & 6792/2022 4 into an unlawful assembly and in pursuance of the conspiracy hatched, at 1.20 a.m. trespassed into the property of Haridasan and concealed themselves behind the bushes near to the well of the house of the said Haridasan. Immediately when the said Haridasan came to the courtyard of his house, the accused beat him using steel pipes and hacked him to death using sword and thus committed the above said offences. 4. The specific case of the petitioner in B.A. No.5953/2022, who is the first accused in the aforesaid crime, is that he was arrested on 22.02.2022 and he is in custody since then. It is submitted by the learned counsel for the petitioner that petitioner is eligible of statutory bail, after 90 days, if no final report is filed, going by Section 167 Cr.PC. The specific case of the petitioner is that only an incomplete final report is filed in the case and due to certain defects the same has been returned back and therefore, the petitioner is entitled for statutory bail as on the said date. The petitioner moved the Judicial Magistrate of First Class, Thalassery under Section 167(2) of the Criminal Procedure Code seeking default bail and the said application was rejected by BA No.5953 & 6792/2022 5 Annexure 1 order. Though he also moved an application before the Court of Sessions, Thalassery, the same was also rejected by Annexure 2 order. The specific contention of the petitioner is that it is the bounden duty of the Court to inform the accused about the benefit of statutory bail and also contended that on 23.05.2022 the petitioner accrued a statutory right for grant of bail. To substantiate the said contention, the petitioner relies on the Judgment in _**Ravindran v. Intelligence Officer, Directorate of Revenue Intelligence [2020 (6) KLT 127(SC)]**_ and also the Judgment of the Bombay High Court in _**Sharadchandra Vinayak Dongre and Others v. State of Maharashtra [MANU/MH/0193/1991]**_ to contend for the position that the petitioner is entitled for statutory bail as envisaged in Section 167(2) of Cr. P.C. 5. The learned Additional Director General of Prosecution opposed the application for bail mainly contending that the petitioner is the 1[st] accused in the above said crime and has actively involved in the commission of the offence, inasmuch as serious overtacts of hacking the deceased with a sword along with BA No.5953 & 6792/2022 6 accused Nos.2, 3, 4, 5 and 6 is alleged against the petitioner. It is further submitted that the petitioner is a person having serious criminal antecedents and he is involved in 7 other criminal cases including even offences punishable under Section 302 IPC. As regards the contention of the petitioner that he is entitled for statutory bail, the learned Additional Director General of Prosecution submitted that the charge sheet was originally filed on 20.05.2022 within the statutory period and the charge sheet was returned on 21.05.2022 for curing certain defects and the same was re-submitted after curing the defects on the same day itself. Later it was returned again due to certain defects on 25.05.2022 and resubmitted after curing the defects on 30.05.2022. Therefore, on the basis of the same, the learned Additional Director General of Prosecution submitted that inasmuch as the charge sheet was filed within the statutory period, the subsequent return of the charge sheet for curing the defect and re-presentation of the same after curing the defect will not give any right to the petitioner for grant of default bail. The learned Additional Director General of Prosecution seriously BA No.5953 & 6792/2022 7 opposed the application for bail mainly contending that as the charge sheet was filed within time, the return of the same for curing certain defects will not make the petitioner entitled for statutory bail. He relies on the Judgment in _**Saharath V. P. v. State of Kerala (2021 KHC 5061)**_ and also the Judgment in _**Shino Paul and Others v. State of Kerala and Others [2010 (1) KHC 469]**_ to substantiate his contentions _**.**_ 6. The case of the petitioner in B. A. No.6792/2022, who is the 13[th] accused in the above said crime, is that he has been falsely implicated in the above said crime and he has no other criminal antecedents. It is also submitted by the learned counsel for the petitioner that the petitioner has passed plus two and ITI and has been working with private firms and his marriage was on 21.05.2021 and thereafter he was leading a peaceful life with his parents, newly wedded wife and his only sister. It is the case of the petitioner that 11 days after the registration of the FIR in the above crime, he has been falsely implicated as an accused alleging criminal conspiracy. He appeared before the investigating officer as directed and his formal arrest was BA No.5953 & 6792/2022 8 recorded on 04.03.2022 and thereafter he is in custody. It is the case of the petitioner that till date, the investigating agency could not collect any incriminating evidence against him. It is his further case that while he was in custody, the investigating agency has planted recovery of 3 swords stated to be handed over by the other accused allegedly at the instance of the petitioner, on 13.03.2022. A complaint was also preferred before the learned Magistrate in this regard. It is also submitted that the final report is already laid and further detention of the petitioner is not required for the purpose of investigation. Even though the petitioner moved an application before the Sessions Court, the same was rejected by Annexure A order. Later the petitioner along with 7 other accused, filed B.A. No.4178/2022, and the same was also rejected by this Court as per order dated 14.07.2022. It is further submitted by the petitioner that he is an active worker of BJP and that is the main reason for falsely implicating him in the alleged crime. It is also submitted that his father was a prominent leader of CPI(M) in Kodiyeri, who was even elected as Councilor of Kodiyeri West Ward of Thalassery BA No.5953 & 6792/2022 9 Municipality as CPI(M) candidate. Later he severed all his connection with CPI(M) and that is also a reason for falsely implicating the petitioner in the alleged crime. Even going by the prosecution case, the petitioner is not among the alleged assailants of the deceased Haridasan. 7. The learned Additional Director General of Prosecution seriously opposed the application for bail. It is submitted that the petitioner is now arrayed as accused No.8. It is also submitted that the petitioner also has an active role in the alleged crime as well as in the conspiracy. Three swords were recovered by the police based on the confession statement of the petitioner herein. It is further submitted that there were earlier attempts to commit murder of the deceased on 11.02.2022 and accused Nos. 7, 8, 10, 11, 13, 14, 15 and 16 formed in an unlawful assembly to commit murder of the deceased, but due to some reasons it could not take place. Thereafter, the petitioner herein along with accused Nos.1, 4, 6 and 7 conspired on 14.02.2022 to commit the alleged offence, but the same could not be materialised on the said date also. The investigation reveals that the petitioner is the prime conspirator BA No.5953 & 6792/2022 10 to the commission of the alleged offence. On verification of the tower location, on 09.02.2022, 11.02.2022 and on 14.02.2022, the petitioner was found together with the other accused and this would reveal that all these persons including the petitioner was present at the same place, at the same time. The call records were also collected and on observing the sound files extracted by the RFSL, Kannur, the clear involvement of the petitioner in the conspiracy and commission of the offence is revealed. Therefore, the learned Additional Director General of Prosecution opposed the application for bail mainly for the reason that the investigation clearly reveals the involvement of the petitioner in the conspiracy as well as attempt to commit the alleged crime along with other accused. 8. As regards the petitioner in B.A.No.5953/2022, he is the 1[st] accused in the alleged crime, one among the assailants who brutally murdered the deceased. The postmortem certificate dated 21.02.2022 clearly reveals that inasmuch as 23 antemortem injuries were noted and the attack resulted in the amputation of the left leg of the deceased and as per the opinion as to the cause BA No.5953 & 6792/2022 11 of death, it is stated that it is due to multiple incised sharp force injuries inflicted; resulting in amputation of left leg, transecting major blood vessels and injuries resulting in cut/fractures, blood loss and shock. He is also involved in 7 other criminal cases of serious nature, including one punishable under Section 302 IPC. Main contention of the petitioner is that he is entitled for statutory bail inasmuch as an incomplete report was filed before the court below. It is not in dispute that the charge sheet was originally filed on 20.05.2022, ie., within the statutory period. The only contention of the petitioner is that the charge sheet was returned back for curing defect and ultimately it was resubmitted only on 30.05.2022. The petitioner submitted that he is entitled for statutory bail as on 23.05.2022, since as on that date, no final report was filed before the court, and therefore, he is entitled for statutory bail. It is seen from Annexure A1 order passed by the learned Magistrate that the charge sheet was filed on 20.05.2022, within the statutory period and the same was returned on 21.05.2022 for curing defects. Thereafter, the charge sheet was re-submitted after curing the defect on 21.05.2022 and it is only BA No.5953 & 6792/2022 12 on 25.05.2022, it was again returned for curing defects and that it was resubmitted on 30.05.2022 after curing the defects noted. In **Ravindran'** s case (Supra), it is specifically held that 'the right to be released on default bail continues to remain enforceable if the accused has applied for such bail, notwithstanding the pendency of the bail application; or subsequent filing of the chargesheet or a report seeking extension of time by the prosecution before the Court; or filing of the chargesheet during the interregnum when challenge to the rejection of the bail application is pending before a higher Court'. On the strength of the said Judgment the learned counsel for the petitioner submitted that Section 167(2) Cr.PC provides for a clear mandate that it gives an indefeasible right to the accused for grant of bail in case charge sheet is not filed within the statutory period. In _**Sharadchandra Vinayak Dongre**_ case (Supra), the question that was considered is as to whether the action of the trial court in taking cognizance of the offence on the basis of an incomplete police report, was in accordance with law and in the said Judgment, it was held that the Magistrate court cannot take cognizance on the strength of an BA No.5953 & 6792/2022 13 incomplete police report. The Additional Director General of prosecution relies on the Judgment in _**Shino Paul**_ 's case (Supra) which specifically considered a similar question as in the present case and paragraph 1 of the said order dealing with the facts of the case is extracted below: _“ 1. The questions of law involved in this Bail Application are (1) whether the accused would be entitled to 'default bail' under the proviso (a) to sub-section (2) of S. 167 of the Code of Criminal Procedure in a case where the charge sheet filed within time was returned by the learned Magistrate to the investigating officer with certain directions regarding investigation, and when the charge sheet was not re-submitted within ninety days from the date of arrest of the accused (2) When the charge - sheet was filed within time and cognizance was not taken, whether the Magistrate has jurisdiction to remand an accused to judicial custody. If so, would S.309 Code of Criminal Procedure apply to the situation?”_ ## Later in paragraph 15 of the said judgment it is held as follows: _“15. For the purpose of disposal of this Bail Application, it is not necessary to decide the correctness or otherwise of the order dated 08/12/2009 passed by the learned Magistrate. That question is pending consideration in a Writ Petition. It is well settled that a further investigation under S.173(8) CrPC can be made at various stages. It can be made even after cognizance of the offence is taken. However, after taking cognizance of the offence, the Magistrate cannot, of his own, make an order for further investigation. Such an order can be passed on the application of the investigating officer. Filing the charge sheet, however, does not preclude the investigating officer from making further investigation in terms of S. 173 (8) CrPC (See Kishan Lal v. Dharmendra Bafna and Another, 2009 KHC 835: 2009 (7) SCC 685 2009 (2) KLD 330 2009 (9) SCALE 768 AIR 2009 SC 2932, Randhir Singh Rana v. State (Delhi Administration), 1997 KHC 247: 1997 (1) SCC 361 AIR 1997 SC 639: 1997 (1) KLT SN 73, Reeta Nag v. State of West Bengal and Others, 2009 KHC 4942 2009 (9) SCC 129, Dinesh Dalmia v. CBI, 2007 KHC 5701 2007 (8) SCC 770: 2007 (2) KLD 344 (SC): 2007 (4) KLT SN 27 JT 2007 (11) SC 164: AIR 2008 SC 78: 2008 CriLJ 337, State of Bihar and Another v. J. A. C. Saldanna_ BA No.5953 & 6792/2022 14 _and Others, 1980 KHC 591 AIR 1980 SC 326: 1980 (1) SCC 554 1980 SCC (Cri) 272 1980 CriLJ 98 1980 MLJ (Cri) 382 1980 (17) ACC 279: 1980 (28) BLJR 18). - In the present case, the charge sheet was filed well within time. Even though - the learned Magistrate returned the charge sheet, it cannot be held that the proviso to S. 167(2) is attracted. I am not inclined to accept the contention of the petitioners that the case has to be dealt with as if no - ” charge sheet is filed (underline supplied)_ A similar issue was considered by this Court in _**Saharath V. P.**_ 's case (Supra). In paragraph 5 of the said Judgment it is held as follows: _“5. The applicant had raised all these contentions earlier and this court had vide Order dated 21-10-2020 found that there were no reasons to hold that the final report was not filed within time. The copy of the Drug Disposal Committee was not seen handed over to the accused. Hence, the prosecution was directed by the jurisdictional court to cure that defect. This Court had relied upon the decision of the Supreme Court in Central Bureau of Investigation v. R. S. Pai and Another. (2002 (2) KLT 149 (SC) 2002 (5) SCC 82], and the decision of this Court in Shino Paul and Others v. State of Kerala [2010 (1) KLT 339], wherein it was held that if a mistake is committed in not producing the relevant documents at the time of submitting the report or the charge sheet, it is always open to the investigating officer to produce the same with the permission of the Court. In the - case on hand, the charge sheet was returned as defective. It implies permission to cure the defects. The defects were cured and the charge- sheet was re- presented. It cannot be said that the proviso to S. 167(2) Cr. P C. would get attracted, and the accused to get default - bail if the charge sheet is re presented after curing the defects, beyond the period in the said proviso, when the charge sheet was originally filed within time. Regarding the application of the embargo under S.37 of the NDPS Act, this Court had referred to the judgment of the Hon'ble Supreme Court reported in Union of India (UOI) v. Shri Shiv Shanker Kesari [KHC 5675: 2007 (7) SCC 798] and the application for bail was dismissed.” (underline supplied)_ In view of the declaration of law by this Court in _**Shino Paul**_ 's BA No.5953 & 6792/2022 15 case (Supra) and _**Saharath**_ 's case(Supra) as above, I find no merit in the contention raised by the petitioner that he is entitled for statutory bail. 9. Considering the facts that the petitioner in B.A.No.5953 of 2022 has an active involvement in the actual commission of the crime and further that he is involved in 7 other criminal cases, including one punishable under Section 302 IPC, I feel that the petitioner is not entitled for bail at this stage. 10.As regards the petitioner in B.A.6792/2022, _prima facie_ I feel that the involvement of the petitioner in the alleged conspiracy is clear from the material collected by the prosecution as part of the investigation. It is true that the veracity and admissibility of the same are matters to be considered at the time of trial. But considering the active role of the petitioner in the commission of the present offence, I am not inclined to grant bail to the petitioner at this stage. All the accused persons involved in the alleged crime, except the petitioner in B. A. No.6792/2022 have serious criminal antecedents, and in the said circumstances, the apprehension raised by the prosecution that if the petitioners BA No.5953 & 6792/2022 16 are released on bail, there is every chance of repeating similar offences and also chance for influencing or terrorizing the witnesses cannot be brushed aside. It is seen that accused Nos. 3 and 4 are absconding even as on this date. It is settled law that nature of seriousness of the offence, likelihood of accused fleeing from justice, the impact that the release of the accused may make on the prosecution witnesses, its impact on the society and likelihood of tampering with the evidence are all matters that should weigh with the court while exercising the discretion to grant bail. Therefore, taking all these aspects into consideration, and having regard to the seriousness of the alleged crime, I am of the opinion that the petitioners in both the bail applications are not entitled for bail at this stage. These bail applications are accordingly, dismissed. **VIJU ABRAHAM JUDGE** sm/