Nishad v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM FRIDAY, THE 30[TH] DAY OF JUNE 2023 / 9TH ASHADHA, 1945** **BAIL APPL. NO. 3852 OF 2023** ## **PETITIONER:** NISHAD AGED 35 YEARS, S/O SHOWKATHALI, NADUTHODIKA HOUSE, MUKKATTA, NILAMBUR TALUK, MALAPPURAM DISTRICT., PIN - 679329 BY ADVS. P.SAMSUDIN JITHIN LUKOSE ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ## **OTHER PRESENT:** PP - BIMAL K.NATH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.A. No. 3852 of 2023 2** ## **VIJU ABRAHAM, J.** ## **-----------------** ## **B.A. No. 3852 of 2023** **----------------------------Dated this the 30[th] day of June, 2023** ## **ORDER** This is an application for regular bail. 2. The petitioner is the 8th accused in Crime No. 280/2022 of Nilambur Police Station. The offences alleged are punishable u/ss 365, 344, 302, 201, 120B, 109, 212 r/w 34 IPC. 3. The prosecution case, in brief, is that on some day in the month of August 2019 accused Nos.1 to 7 abducted one Shaba Shareef, a resident of Rajeev Nagar, Mysore and wrongfully restrained him at the house belonging to the lst accused at Mukkatta, where he was beaten up to extract secret information from him regarding his ancestral treatment method. Later, someday in October 2020 at night accused Nos.1 and 2 along with accused Nos.8 and 9 killed the said Shaba Shareef and chopped his body into pieces and threw in the river from Seethi Haji bridge at Edavanna. Thus, the accused persons committed the aforesaid ## **B.A. No. 3852 of 2023 3** offences. 4. The petitioner submitted that he has been falsely implicated in the above-said crime. It is true that the petitioner was the driver of the 1st accused for some time in 2019. But he has no knowledge about the crime in the present case committed by the 1st accused. The petitioner is implicated on a mistaken identity. No materials are recovered from the possession of the petitioner or on the basis of any confession made by him. Petitioner has not participated in any of the activities in the crime. Petitioner has no involvement in the alleged actions of the accused. There is no direct or indirect evidence linking the petitioner with the above-said crime. The petitioner is innocent of the charges. He is in custody since 10-05-2022. Petitioner has father, mother, wife and a kid. He is a driver by profession and is the sole bread winner of the family. At the time of arrest, he was not associated with the 1st accused and further that he has no antecedents. A bail application was ## **B.A. No. 3852 of 2023 4** submitted on behalf of the petitioner and the same was dismissed by the learned Judicial First Class Magistrate Court Nilambur by Annexure-A2 order. It is further submitted that the prosecution could not trace out any materials to prove that the person named Shaba Shareef is killed and his body is disposed of. The remains of the body allegedly recovered from the river is sent for DNA analysis, but no report is received so far. The investigation in the case is completed, and the final report is already filed. 5. Petitioner submits that even though he moved this Court earlier seeking bail, the same was rejected by Annexure-A3 also taking into consideration that the petitioner is involved in another crime, Crime No. 422/2022 of Nilambur Police Station, alleging commission of offence under Section 302 IPC committed in AbuDhabi. Petitioner contented that during the alleged commission of the above crime, he was in Kerala and the original passport will reveal the above said aspects. ## **B.A. No. 3852 of 2023 5** 6. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 7. Learned Public Prosecutor seriously opposed the application for bail mainly contending that the petitioner has an active involvement in the commission of the offence. The petitioner along with A1,A2 and A9 made continuous physical torture on the victim. A1, A2 and A9 with the help of the petitioner chopped the body into pieces and packed it in carry bags. Later A1,A2,A9 and the petitioner took these bags and put in the car, brought it to the Edavanna Seethi Haji Bridge, threw the body pieces into the Chaliyar river. Thus, they tried to destroy the evidence of the criminal acts. The petitioner was driving the said car and based on his statement the vehicle was also seized. Learned Public Prosecutor further submits that petitioner is involved in another double murder case which is registered as Crime No. 422 of 2022 of Nilambur police station and that the contention of the petitioner that he has no criminal antecedents is not correct. The ## **B.A. No. 3852 of 2023 6** offence committed by the petitioner is of a grave nature and was executed in a very brutal manner. The petitioner has criminal antecedents even including commission of offence punishable under Section 302 IPC, and if he is enlarged on bail at this stage, there is every chance for him to abscond and also to influence and threaten the witnesses and to tamper with the evidence and therefore prayed that petitioner shall not be enlarged on bail. The learned Public Prosecutor also submitted that the investigation in Crime No. 422/2022 of Nilambur Police Station, has been handed over to the CBI as per the orders passed by this Court. 8. On the contention taken by the petitioner that he was in Kerala at the time of the alleged commission of Crime No. 422/2022 of Nilambur Police Station, this Court as per order dated 19.05.2023 sought for a report in this regard through the learned Public Prosecutor. It was reported by the learned Public Prosecutor upon instruction that on verification of the passport ## **B.A. No. 3852 of 2023 7** details of the petitioner, it is revealed that at the relevant point of time, the petitioner was abroad. 9. I have considered the bail application of the petitioner on earlier occasion and rejected the same as per Annexure-A3 order. The bail application submitted by the 9th accused who is also similarly situated was also rejected by this Court as per order dated 16.06.2023 in BA No. 2134/2023. The offence committed by the petitioner is of a grave nature and was executed in a very brutal manner. The petitioner has criminal antecedents of having committed another offence punishable under Section 302 IPC. The Apex Court has time and again reminded about the facts to be born in mind while considering an application for bail which has been summarized in _**Prasanta Kumar**_ ## _**Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496**_ as follows: _“9.…………. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the_ ## **B.A. No. 3852 of 2023 8** _point. 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 (viii) danger, of course, of justice being thwarted by grant of bail.” [See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)] (SCC p. 31, para 18), Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 : 2001 SCC (Cri) 674] , and Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598].”_ 10. Learned Public Prosecutor relying on the decisions in _**P…..v. State of Madhya Pradesh, 2022 SCC OnLine SC 552, and Mamta and another v. State (NCT of Delhi) and another, 2022 (8) SCC**_ _**598**_ contended that the abovesaid parameters fixed by the Apex Court will definitely disentitle the petitioner for grant of bail at this stage. The recent decision of the Apex Court in _**Deepak Yadav v. State of Uttar Pradesh and another, (2022) 8**_ ## **B.A. No. 3852 of 2023 9** _**SCC 559**_ has also reiterated the parameters to be born in mind while considering an application for bail and held that for grant or denial of bail the “nature of crime” has a huge relevance. Learned Public Prosecutor also relied on the judgment in _**Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and another, (200) 7 SCC 528**_ to contend that even though the accused has the right to make successive applications for grant of bail, the court also has a duty to record what are the fresh grounds which persuaded it to take a different view from the one taken in the earlier application. Considering the facts and circumstances of the case and taking into consideration the seriousness of the allegation against the petitioner, and the brutal way in which the murder was committed and also taking into consideration the serious criminal antecedents of the petitioner, I am not inclined to grant bail to him. Since the petitioner is in custody from 12.05.2022, there ## **B.A. No. 3852 of 2023 10** will be a direction to the trial court concerned to take all earnest steps to expedite the trial of the case and complete the same without much delay. Bail application is accordingly dismissed. sd/- **VIJU ABRAHAM, JUDGE** pm