Nidheesh P.S. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** **Bail Appl..No. 156 of 2019** **AGAINST THE ORDER/JUDGMENT IN SC NO.754/2018 of ADDITIONAL DISTRICT COURT, IRINJALAKUDA** **CRIME NO.413/2018 OF IRINJALAKUDA POLICE STATION, THRISSUR** ## **PETITIONER/3RD ACCUSED:** **NIDHEESH P.S., AGED 27 YEARS S/O SASIDHARAN, PERINGATHIL HOUSE, MUTHITHARA, KARALAM P.O., THRISSUR DISTRICT.** **BY ADV. SRI.VINAY RAMDAS** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF IRINJALAKUDA POLCIE STATION IN THRISSUR DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31.** **BY SRI.SUMAN CHAKRAVARTHY, SENIOR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.02.2019, ALONG WITH Bail Appl..402/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.As.156 & 402 of 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 12TH DAY OF FEBRUARY 2019 / 23RD MAGHA, 1940** **Bail Appl..No. 402 of 2019** **CRIME NO.413/2018 OF IRINJALAKUDA POLICE STATION, THRISSUR** ## **PETITIONER/5TH ACCUSED:** **MEJO JOSEPH, AGED 25 YEARS, S/O JOSEPH, KUNNATHAN HOUSE, KOMBARA DESOM, VELOOKKARA VILLAGE, THRISSUR DISTRICT.** **BY ADV. SRI.RAJIT** ## **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.SUMAN CHAKRAVARTHY, SENIOR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.02.2019, ALONG WITH Bail Appl..156/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.As.156 & 402 of 2019 3 ## **ORDER** These applications are filed under Section 439 of the Cr.P.C. 2. The applicants are the accused Nos. 3 and 5 in S.C.No.754 of 2018 on the file of the Additional Sessions Judge, Irinjalakkuda. In the aforesaid case, they are being proceeded against for having committed offence punishable under Sections, 143, 147, 148, 323, 324, 326, 307, 450 and 302 r/w. Section 149 of the IPC. 3. On 27.5.2018, at about 11.15 p.m., in pursuance of a conspiracy hatched by accused Nos.1 to 13 to murder one Vineeth, the accused Nos. 1 to 5 are alleged to have trespassed into his house and when Vijayan, father of Vineeth, opened the door, he was inflicted with fatal injuries. The mother and grandmother of Vineeth intervened to save the deceased. They were also brutally attacked. According to the prosecution, accused Nos.1 to 5 are the persons, who trespassed into the house and had inflicted injuries, and accused Nos.6 to 11 and 14 are the persons, who had actively aided accused Nos.1 to 5 and stood guard outside the house, to facilitate the commission of the crime by the principal accused. B.As.156 & 402 of 2019 4 4. The learned counsel appearing for the 3[rd] accused submitted that the crime was registered based on the statement given by the wife of the deceased. She had named only three unknown persons as the assailants. However, in the course of investigation, her additional statement was recorded and several others, who had nothing to do with the incident, were added as accused. The learned counsel would further contend that if, in fact, the 3[rd] accused was present in the scene of crime, his name would have been definitely mentioned. According to the learned counsel, the gross discrepancy in the version of CW1 as well as CW3 would show that innocent persons were roped in later. It is further submitted that the 3[rd] accused has been in custody from 7.6.2018 and prays that he be released on bail. 5. The learned counsel appearing for the 5[th] accused vehemently submitted that the said accused was roped in at a later stage. In the F.I.Statement, the presence of only three unknown persons are mentioned. The first informant would also state that the main injury was inflicted by one of the accused and the rest of them assaulted her husband with sticks. The only persons who had stated about the presence of the 5[th] accused are CW3, the son of the deceased, and CW28. Their statement is vague and unreliable. B.As.156 & 402 of 2019 5 According to the learned counsel, though in the final report, it is alleged that the 5[th] accused was armed with a stick, with which he had inflicted injuries, no corresponding wounds are noted in the body. He would refer to the decision of the Apex Court in **Sanjay Chandra v. CBI** [2012(1) SCC 40] and it was argued that the object of bail is to secure the presence of the accused at the stage of trial. According to the learned counsel, a person, who is on bail, has a better chance to defend his case than a person in custody. Reliance is also placed on **Dataram Singh v. State of Uttar Pradesh** [2018 (3) SCC 22], and it is submitted that though the grant or denial of bail is entirely the discretion of the Judge, in the facts and circumstances of each case, the exercise of judicial discretion has been circumscribed by the decisions of the Apex Court as well as this Court. The jurisdiction must be exercised judiciously, in a humane manner and compassionately without being carried away by the severity of the allegations. 6. The learned Public Prosecutor has stoutly opposed the prayer. He would contend that the applicants herein and the other accused who had taken part in the incident are hardened criminals with a long history of involvement in serious criminal cases. For a trivial incident, which took place earlier in the day, the applicants B.As.156 & 402 of 2019 6 herein along with the rest of the accused in pursuance of a conspiracy, had trespassed into the house of the deceased during late hours on 27.5.2018 and had inflicted very serious injuries. The wife of the deceased had suffered fracture of both her hands and her husband was hacked to death. He would refer to the antecedents of each accused who took part in the incident. According to him, the 1[st] accused, Ranjith, is involved in 3 crimes; the 2[nd] accused in 14 crimes; the 3[rd] accused in 6 crimes; the 4[th] accused in 3 crimes; the 5[th] accused in 2 crimes; the 11[th] accused in 4 crimes and the 13[th] accused in as many as 10 crimes. The main eye-witnesses are CW1 and CW3 and if the applicants are released on bail at this stage, there is reasonable possibility that they would tamper with the evidence and terrorize the witnesses. The gravity of the injuries and the manner in which the brutal murder was committed on the hapless victims are also highlighted by the learned Public Prosecutor to persuade this Court to deny bail to the applicants at this stage. It is also submitted that there is a reasonable possibility that the applicants shall abscond and make themselves scarce if released on bail. 7. I have anxiously considered the submissions advanced by both sides and have intensely scrutinized the final report. It is trite that a detailed examination of the evidence and elaborate B.As.156 & 402 of 2019 7 documentation of the merits of the case should be avoided while passing orders on bail applications. The courts will have to be cautious as the party should not have the impression that his case has been pre-judged. It is also equally 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 accusations; (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 and finally (ix) the larger interest of the public or the State (See: **State of U.P through CBI v. Amarmani Tripathi** [(2005) 8 SCC 21] ; **Prahlad Singh Bhati v. NCT, Delhi & Anr** . [(2001) 4 SCC 280]; **Ram Govind Upadhyay v. Sudarshan Singh & Ors** . [(2002) 3 SCC 598]; **Pratapbhai Hamirbhai Solanki Vs. State of Gujarat and Anr** . [2012 (10) SCALE 237]. B.As.156 & 402 of 2019 8 8. In the case on hand, the murder was committed by a group of persons pursuant to a conspiracy hatched by them. The deceased is an aged man who happened to be the father of an adversary of the applicants and others. The prime witness is the wife of the deceased and she had also suffered multiple fractures on both her hands. The son of the deceased had also occasion to witness a part of the incident. The learned counsel appearing for both sides made a serious endeavour to show that there are major discrepancies in their version. It cannot be forgotten that the incident had taken place in the dead of night. Some minor discrepancies are bound to occur. The investigation which was conducted, prima facie, shows the involvement of the applicants and the brutal manner in which the offence was committed. In that view of the matter, the fear expressed by the prosecution that the applicants, if released on bail, would use their liberty to subvert justice and tamper with the evidence cannot be nonchalantly brushed aside at this stage. 9. There is yet another aspect of the matter. I find that the accused who are involved in the instant crime are history sheeters. Though the 5[th] accused is involved in only two crimes, the fact remains is that he has been assigned a major role in the incident. In **Neeru Yadav v. State of Uttar Pradesh and Anr** [(2016) 15 SCC B.As.156 & 402 of 2019 9 422], the Hon'ble Supreme Court had held that the criminal antecedents of the accused is a valid consideration when an application for bail is considered. The crimes in which the applicants and others are involved are heinous in nature and it would reveal their penchant to indulge in criminal activities. 10. I am not impressed with the contention of the learned counsel that detention in custody of the applicants herein for an indefinite period would be violative of Article 21 of the Constitution. The applicants have been in custody from 7.6.2018 in a case of murder. 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 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 the parties do not lose faith in the institution and indulge in private retribution. B.As.156 & 402 of 2019 10 11. 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: - “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 civilized 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 organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires. 19. We are absolutely conscious that liberty is a greatly cherished value in the life of an individual, and no one would like to barter it for all the tea in China, but it is obligatory on the part of court to scan and scrutinize, though briefly, as regards the prima facie case, the seriousness and gravity of the crime and the potentiality of the accused to tamper with the evidence apart from other aspects before the restriction on liberty is lifted on imposition of certain conditions.” 12. Having considered the nature and gravity of the accusations against the applicants, the apprehension expressed by the prosecution concerning the safety of the prime witnesses and the likelihood of their abscondence, I am of the view that this Court will B.As.156 & 402 of 2019 11 not be justified in releasing the applicants on bail at this stage. If the trial is delayed further, the applicants may approach the Sessions Court and seek appropriate orders. These applications are dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** ps/12/2/2019 //TRUE COPY.// P.S. TO JUDGE