Muhammed Salih v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ``` ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 6[TH] DAY OF JUNE 2023 / 16TH JYAISHTA, 1945 BAIL APPL. NO. 4225 OF 2023 AGAINST THE ORDERin S.C.NO.901/2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE) ``` ## `- PETITIONER/2ND ACCUSED :` ``` MUHAMMED SALIH, AGED 30 YEARS S/O JALALUDHEEN KUNJ, PANCHAMOOTTIL HOUSE, MEMANA MURI, OCHIRA VILLAGE, KOLLAM, PIN - 690526 ``` ``` BY ADVS. OMAR SALIM A.N.BIJU ASHISH ABY DAVID ``` ## `- RESPONDENT/STATE :` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 2CIRCLE INSPECTOR OF POLICE, PALLICKAL POLICE STATION, THIRUVANANTHAPURAM, PIN - 695604 ``` ``` SRI C.K SURESH SR PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No. 4225 of 2023 2 **RAJA VIJAYARAGHAVAN V, J.** ## **------------------------------------B.A.No. 4225 of 2023** **------------------------------------------Dated this the 6th day of June, 2023** ## **ORDER** This application is filed under Section 439 of the Code of Criminal Procedure. 2. The petitioner herein is the second accused in S.C.No.901 of 2018, pending on the file of the First Additional Sessions Court, Thiruvananthapuram. He faces indictment for having committed the offence punishable under Sections 302, 307, 120B, 449, 201, 202, and 212 r/w Section 34 of the IPC and Section 27 of the Arms Act. 3. The prosecution allegation as per the charge can be briefly detailed as under: The 1st accused is a businessman with establishments in Qatar in the middle east. The relationship between the 1st accused and his wife became strained, and it ended in the dissolution of their marriage. He believed that his wife was in an adulterous relationship with a certain Rajesh, with whom she was maintaining constant contact. He decided to murder Rajesh and, to achieve his object, conspired with the 2nd accused, who was his friend, employee, and gym trainer, all rolled into one. The 2nd accused, who was hired for the purpose by the 1st accused, contacted accused Nos. 3, 4, 5, and 7 and B.A.No. 4225 of 2023 3 hatched a conspiracy to do away with Rajesh. They also assembled in the house of the 6th accused, who is a member of a WhatsApp group in which the 3rd accused is a member, and they are alleged to have chalked out a plan to liquidate Rajesh. Weapons and vehicles were mobilized, and necessary arrangements were made to make their escape without leaving any trace. On 26.03.2018, in the late hours, the accused Nos. 2 to 4 proceeded in a Maruti Swift car, which was hired to achieve the objective, and reached the recording studio of the deceased. The accused Nos. 2 to 4 entered the studio and found that CW1, a close friend of Rajesh, was with him. The accused No.4, with intent to murder, flashed a bill hook and inflicted serious injuries on the body of CW1. After injuring CW1 as aforesaid, the accused Nos. 2 and 3 entered the studio and, after cornering Rajesh, with intent to commit murder, inflicted a series of cut injuries with swords. After ensuring that Rajesh would not survive, the accused are alleged to have left the scene. Rajesh was rushed to the hospital; however, his life could not be saved. Based on the statement furnished by CW1, a crime was registered on 27.03.2018. Investigation was taken over by the Inspector of Police, Kilimanoor, who laid the final report before the Court. 4. Sri. Omar Salim, the learned counsel appearing for the petitioner, submits that the petitioner was arrested on 10.04.2018 and he has been undergoing incarceration for more than 5 years. He had earlier approached this B.A.No. 4225 of 2023 4 Court and had his applications for enlargement on bail were rejected by this Court. Though he had approached the Hon’ble Supreme Court, the Apex Court disposed of the SLP, granting the petitioner liberty to approach the Sessions Court and seek for regular bail. Though the petitioner approached the Court of Session, his application was rejected. The learned counsel urges that the examination of the prosecution witnesses was over on 17.03.2020. While so, the 3rd accused approached this Court seeking bail, and while disposing of the said application, this Court has directed the learned Sessions Judge to expedite proceedings and to conclude the same within a period of one month. It is pointed out by the learned counsel that the said order has not yielded any result. Though the matter was heard by three Sessions judges, due to routine transfers, they could not dispose of the matter. The case is now pending before the Additional Sessions Judge. While so, an application was filed by the prosecution to alter the charge, which was allowed by the learned Sessions Judge. The said order has been challenged by the petitioner before this Court. The prosecution stated before the Court that they do not have any additional witnesses to examine. However, the 3rd accused filed an application seeking to recall PW1 and PW118 and also for examining the mahazar witnesses, and the said application was allowed. The learned counsel submits that the likelihood of the trial being concluded in the near future is remote. Reliance is placed on the judgment rendered by the Apex Court in **Satender Kumar Antil v. Central** B.A.No. 4225 of 2023 5 **Bureau of Investigation & Another** [2022 LL SC 577] and it was argued that the prolonged delay in concluding a trial will adversely affect the right of the accused under Article 21 of the Constitution of India. 5. On the other hand, the learned Public Prosecutor has opposed the submissions. It is pointed out by the learned Public Prosecutor that the offence committed by the accused is extremely grave, and this Court had, on multiple occasions, rejected the bail. Though the said order was challenged before the Apex Court, the same was not interfered with. It is further submitted by the learned Public Prosecutor that the trial is now in the final stages, and no case for enlargement on bail is made out. It is further submitted that in tune with the orders passed by this Court, the proceedings can be expedited and the case can be concluded. 6. I have considered the submission advanced. 7. I find that the petitioner had earlier approached this Court seeking bail, and this Court having regard to the nature and gravity of the allegations against the petitioner, the reasonable possibility of the petitioner fleeing from the arms of justice, and other relevant facts and circumstances had rejected the prayer and ordered custody trial. Though the petitioner had challenged the order before the Apex Court, the said order was not interfered with. I also find from the submissions that the main accused are all facing trial while in judicial custody. I am not impressed with the contention of the learned counsel that 6 B.A.No. 4225 of 2023 detention in custody of the applicant herein for an indefinite period would be violative of Article 21 of the Constitution. As held by the Apex Court in **Ram Govind Upadhyay v. Sudarshan Singh** [AIR 2002 (SC) 1475], while liberty of an individual is precious and there should always be an all-round effort on the part of courts to protect such liberties of individuals, but this protection can be made available to the deserving ones only. Protection cannot be termed to be absolute but stand qualified depending upon the exigencies of the situation. Liberty is to be secured through the process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim who lost her life and also the collective interest of the community in order to ensure that parties do not lose faith in the institution and indulge in private retribution. ## 8. In **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu and Anr** . [JT 2012 (9) SC 155], the Apex Court while dealing with individual liberty and cry of the society for justice, has opined as under: - **17.** We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasise, the sacrosanctity of liberty is paramount in a civilised society. However, in a democratic body polity which is wedded to the rule of law an individual is expected to grow within the social restrictions sanctioned by law. The individual B.A.No. 4225 of 2023 7 liberty is restricted by larger social interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well-accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialised. The life of an individual living in a society governed by the rule of law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. That is why Edmond Burke while discussing about liberty opined, “it is regulated freedom”. **18.** It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilised milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organised society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquillity and safety which every well-meaning person desires. Not for nothing J. Oerter stated: 8 B.A.No. 4225 of 2023 “Personal liberty is the right to act without interference within the limits of the law.” 9. In **Rajesh Ranjan Yadav v. CBI** , (AIR 2007 SC 451) while Article 21 is of great importance, a balance must be struck between the right of liberty of the person accused of an offence and the interest of the society. No right can be absolute and reasonable restrictions can be placed on the exercise of the rights. The grant of bail due to prolonged incarceration cannot be said to be an absolute rule because the grounds of bail must depend upon the contextual facts and circumstances. 10. In the case on hand, the trial is at the final stages. This Court, in the bail application filed by the 3rd accused, has already issued directions to the Sessions Court to expedite the proceedings and to take the matter to its logical conclusion at the earliest. In that view of the matter, and having regard to the nature and gravity of the accusations against the petitioner, the severity of punishment in the event of conviction, and the danger of the accused absconding or fleeing if released on bail, I am of the considered opinion that the petitioner has not made out a case for grant of bail. This petition will stand dismissed. Sd/- ## **RAJA VIJAYARAGHAVAN V, JUDGE** SMA