Nishad @ Nisar v. State of Kerala and Arshika (Added R3)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 7[TH] DAY OF DECEMBER 2022 / 16TH AGRAHAYANA,** **1944** **BAIL APPL. NO. 7450 OF 2022** **CRIME NO.1989/2021 OF TOWN SOUTH POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED NO.12:** **NISHAD @ NISAR AGED 37 YEARS, S/O.BAVA, MANAKKAL HOUSE, CHUNANGAD, OTTAPPALAM, PALAKKAD DISTRICT, PIN - 679101** **BY ADVS. SRI.SUNNY MATHEW SMT.NIKITTA TRESSY GEORGE** ## **RESPONDENTS/COMPLAINANTS & STATE:** - **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM COCHIN - 682031** - **2 THE STATION HOUSE OFFICER TOWN SOUTH POLICE STATON, PALAKKAD DISTRICT - 679101** - ***3 ARSHIKA W/O. SANJITH, MAMBARAM, KINASSERY, PALAKKAD DISTRICT PIN-678 701 *(ADDL. R3 IS IMPLEADED AS PER ORDER DATED 11-11-2022 IN CRL.M.A 1/2022)** B.A. No.7450/22 ## **-:2:-** **BY ADVS. SRI.K.B.ARUNKUMAR SRI.GRACIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF PROSECUTION SMT.POOJA K.S.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.12.2022, THE COURT ON 07.12.2022 PASSED THE FOLLOWING:** **-:3:-** B.A. No.7450/22 ## **BECHU KURIAN THOMAS, J. -------------------------------B.A. No.7450 of 2022** ## **---------------------------------** Dated this the 7[th ] day of December, 2022 ## **ORDER** This is an application for regular bail filed under section 439 of the Code of Criminal Procedure, 1973. 2. Petitioner is the 12[th] accused in Crime No.1989 of 2021 of Palakkad Town South Police Station, alleging offences punishable under sections 120(b), 143, 144, 147, 148, 341, 302, 109, 118, 201, 212, 465, and 471 r/w section 149 of the Indian Penal Code, 1860 and also under section 27(3) r/w section 7(a) (b) of the Arms Act, 1959. 3. The crime relates to the murder of one Sri. Sanjith, who was an active worker of the RSS. Prosecution alleges that on 15.11.2021, accused 1 to 5 formed themselves into an unlawful assembly, armed with dangerous weapons, and while Sri. Sanjith was travelling on a motorbike along with his wife, they rammed into him and hacked him to death in front of his wife. 4. Petitioner, as accused No.12, is roped in as one of the B.A. No.7450/22 ## **-:4:-** conspirators to the murder, and he was arrested on 02.12.2021. 5. Sri. Sunny Mathew, the learned counsel for the petitioner, contended that even though petitioner is alleged to be a conspirator, the allegations reveal only the bailable offence of harbouring an offender and nothing more. According to the learned counsel, there are no materials to connect the petitioner either with the crime or with any conspiracy and also that he has been arrayed as an accused solely on an assumption, without any material. The learned counsel also submitted that petitioner has no antecedents at all and that, going by the prosecution allegations, petitioner had come into the picture only on 17-11-2021 to pick up accused 2, 4 and 6 in an autorickshaw and harboured those accused in a lorry and also in his house. The allegation of the petitioner being part of the conspiracy is totally false, and there is no material linking him with the alleged conspiracy. It was further contended that since petitioner has been in custody since 02-12-2021, further detention is not only unnecessary but would amount to punishment, even before he is found guilty. The learned counsel also contended that none of the witnesses had stated about the involvement of the petitioner B.A. No.7450/22 ## **-:5:-** in any conspiracy, and in such circumstances, the continued detention is not justified. It was pointed out that one Sri. Haroon, who is alleged to have been present in the alleged conspiracy along with the petitioner on 14-11-2021, as spoken to by CW87, is arrayed only as a charge witness, which itself will indicate that there was no conspiracy involving the petitioner. The counsel concluded his submissions by submitting that petitioner is willing to abide by any conditions that may be imposed upon him. The learned counsel relied upon the decision in **Satender Kumar Antil v. Central Bureau of Investigation and Another** (2022 (4) KHC 570). 6. Sri.Gracious Kuriakose, learned Additional Director General of Prosecution, on the other hand, opposed the application and contended that the murder of Sri. Sanjith on 26.07.2020 was a pre-planned political murder, which was part of a series of murders committed, all conspired by the petitioner and others. The learned Additional Director General of Prosecution pointed out that one Sakeer Hussain was attempted to be murdered on the anniversary of the murder of Sanjith and on 15.11.2021, one Sri.Sajith was attacked, followed by the B.A. No.7450/22 ## **-:6:-** murder of Sri.Subair on 15.04.2022. Two murders that took place subsequent to the murder of the deceased in the instant case were all part of the conspiracy to murder the political rivals, and petitioner's role was significant in the crime. It was submitted that Sakeer Hussain was the relative of the petitioner and hence there was a personal enmity also for the petitioner. 7. According to the prosecution, in the conspiracy that was hatched, each accused were given specific roles and petitioner was required to assist accused 2, 4 and 6 to escape and to harbour them and since he was part of the conspiracy, he is a conspirator. It was also argued that prior to the incident, the presence of the petitioner in the conspiracy on 13-11-2021 has also been revealed and therefore, there is ample material to connect him to the conspiracy. The learned Additional Director General of Prosecution also submitted that meticulous verification of the involvement of each accused had been carried out, which is evident from the fact that accused 15 to 20 have been arrayed only for the offence of harbouring the offenders, while petitioner is included as an accused for the conspiracy. It was also submitted that the nature of the offence, the B.A. No.7450/22 **-:7:-** circumstances prevailing in the locality, the danger that will ensue if the petitioner is released must all be borne in mind while considering the bail application. The learned Additional Director General of Prosecution relied upon the decisions in **Ishwarji Nagaji Mali v. State of Gujarat and Another** [(2022) 6 SCC 609], **Pawan Kumar Alias Monu Mittal v. State of Uttar Pradesh and Another** [(2015) 7 SCC 148], **Kalyan Chandra Sarkar v. Rajesh Ranjan alias pappu yadav and Another** [(2004) 7 SCC 528], **Mohmed Inayatullah v. State of Maharashtra** [(1976) 1 SCC 828], **State of Maharashtra v. Damu S/o Gopinath Shinde and Others** [(2000) 6 SCC 269] & **Pulukuri Kottaya and Others v. The King-Emperor** (Privy Council Appeal No.37 of 946). 8. Sri.K.B.Arunkumar, the learned Counsel for the defacto complainant, also vehemently opposed the application and submitted that the statements of witnesses arrayed as charge witnesses clearly speak about the involvement of the petitioner in the conspiracy and he referred to the statement of CW87 especially. The learned Counsel also adopted the arguments advanced on behalf of the State. B.A. No.7450/22 ## **-:8:-** 9. I have considered the rival contentions. 10. It is trite law that the object of bail is neither punitive nor preventive. The grant or refusal of bail is intended to secure the presence of the accused during trial. The principles of personal liberty enshrined under Article 21 of the Constitution of India and the elementary principle that every accused is presumed to be innocent until and unless he is found to be guilty are two factors that must weigh with the court while considering an application for bail. Detention prior to conviction has the effect of being punitive in nature, and it is considered as opposed to the constitutional principles to deprive a person of bail pending trial or to refuse bail before conviction solely for the purpose of giving him a taste of imprisonment as a lesson. Of course, courts have noted that, in certain circumstances, the need to have a custodial trial is a necessity for reasons which are peculiar to each individual case. ## 11. In the decision in **Satendar Kumar Antil v. Central** **Bureau of Investigation and Another** (2022 SCC Online SC 825), the Supreme Court held that the seriousness of the charge and the severity of the punishment had to be taken into account B.A. No.7450/22 **-:9:-** while considering the application for bail. 12. Similarly, in the decision in **Sanjay Chandra v. Central Bureau of Investigation** [(2012) 1 SCC 40], the Supreme Court had observed that the grant or refusal to grant bail lies within the discretion of the court and is regulated to a large extent by the facts and circumstances of each particular case. The court had also observed that bail should not be denied merely because of the sentiments of the community against the accused, and the primary purpose of bail in a criminal case is to relieve the accused of imprisonment, to relieve the State of the burden of keeping him pending trial and at the same time to keep the accused constructively in the custody of the court whether before or after the conviction to assure that he will submit to the jurisdiction of the court and be in attendance thereon, whenever his presence is required. 13. With the aforesaid principles in mind, when the circumstances of this case are appreciated, it is noticed that the petitioner is alleged to be a conspirator and had harboured three of the main accused. The contention of the learned Counsel for the petitioner that the statements of CW69, CW144 and CW149 B.A. No.7450/22 ## **-:10:-** relied upon by the prosecution to link the petitioner with the alleged conspiracy does not connect him to any conspiracy; prima facie, seems to have some substance. However, the contention that one Haroon mentioned by CW87 is only a charge witness is not correct as the learned Additional Director General of Prosecution pointed out that the said Haroon is accused No.6. The conspiracy involving the petitioner is alleged to have taken place on 13-11-2021 and the murder took place on 15-11-2021. Thus, there are significant circumstances that have been garnered against the petitioner, which cannot be ignored in a case of this nature. 14. However, the petitioner was arrested on 02-12-2021, and he has been in custody for more than one year. As mentioned earlier, detention prior to conviction has the effect of being punitive in nature and depriving a person of bail pending trial solely for the purpose of giving him a taste of imprisonment as a lesson has been deprecated by the Supreme Court. Considering the volume of evidence to be adduced, an immediate culmination of the trial also seems to be remote. 15. The apprehension expressed by the prosecution that **-:11:-** B.A. No.7450/22 the witnesses would be intimidated or influenced can be secured by appropriate conditions. The allegation that the situation in the locality will be very tense if the petitioner is released cannot be applied as a general phenomenon with respect to every accused. 16. The nature of allegations against the petitioner and the circumstances discussed above leads this Court to take a considered view that despite the serious allegations against the petitioner, his custodial trial is not essential and that he can be released on bail on conditions. 17. In such circumstances, I allow this application and direct the petitioner to be released on bail on the following conditions: (a) Petitioner shall be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. (b) Petitioner shall co-operate with the trial of the case. (c) Petitioner shall not intimidate or attempt to influence or contact the witnesses; nor shall he attempt to tamper with the evidence. (d) Petitioner shall not commit any similar offences while he is on bail. (e) Petitioner shall not leave the country without the permission of the jurisdictional Court. B.A. No.7450/22 ## **-:12:-** In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court. **BECHU KURIAN THOMAS JUDGE** vps