Noushad @ Monu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 14[TH] DAY OF JUNE 2023 / 24TH JYAISHTA, 1945** **BAIL APPL. NO. 2134 OF 2023** **CRIME NO.280/2022 OF NILAMBUR POLICESTATION** ## **PETITIONER/ACCUSED NO.9:** **NOUSHAD @ MONU,AGED 42 YEARS, OCC-LABOUR S/O HAMZA, THANGALAKATH HOUSE, KAIPPANJERI, SULTHAN BATHERI, WAYANAD DISTRICT, PIN - 682301** **BY ADVS. BIJU ANTONY ALOOR SAKSHYA A.K. K.P.PRASANTH T.S.KRISHNENDU ARCHANA SURESH JINSON JACOB** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 STATION HOUSE OFFICER, NILAMBUR POLICE STATION, MALAPPURAM, PIN - 679329** ## **OTHER PRESENT:** ## **ADDL.PP : P.NARAYANAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **14.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.2134 of 2023 2 ## **VIJU ABRAHAM, J.** **................................................................. B.A. No.2134 o 2023 .................................................................** Dated this the 14[th] day of June, 2023 ## **ORDER** This is an application for regular bail. 2. Petitioner is the 9[th] accused in Crime No.280 of 2022 of Nilambur Police Station registered alleging offences punishable under Sections 365, 344, 302 and 201 read with Section 34 of the Indian Penal Code. 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 1[st] 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 offences. BA No.2134 of 2023 3 4. Petitioner submitted that he is in custody since 12.05.2022 and he is totally innocent of the allegations levelled against him, and that he has been falsely implicated in the above-said crime. It is further submitted that the charge sheet is already laid and therefore further detention of the petitioner is not required for the purpose of investigation of the case. Petitioner further submits that no overt acts are committed by him. Petitioner has health issues and continued detention will seriously affect him. All the documents produced by the investigating agency are false and fabricated and further that no incriminating material was found against the petitioner. 5. Learned Addl. Public Prosecutor seriously opposed the application for bail by filing a statement dated 05.06.2023 mainly contending that the petitioner had an active involvement in the commission of the offence. The petitioner along with A1,A2 and A8 made continuous physical torture on the victim. A1, A2 and A8 with the help of the petitioner chopped the body into pieces and packed it in carry bags. Later A1, A2, A8 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, the petitioner along with the other accused also tried to destroy the evidence of the criminal acts. Learned Addl. Public Prosecutor further submits that the petitioner is involved in 2 other cases of which one registered as Crime No. 422 of BA No.2134 of 2023 4 2022 of Nilambur police station is alleging commission of offences punishable under Sections 120B and 302 read with Section 34 of IPC which was subsequently handed over to CBI as per the orders of this court and the same is now pending as FIR No. RC 0342022S005 CBI/SCB/Thiruvananthapuram of CBI Special Crime Branch, Thiruvananthapuram. The 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. Learned Public Prosecutor further submitted that the petitioner has approached this court earlier and this court as per Annexure 3 order dismissed the application by a detailed order and that there is no change in circumstances so as to enable the petitioner to seek for bail again. 6. Learned counsel appearing for the petitioner would contend that the petitioner has serious medical issues and that he is undergoing medication while in custody. It is submitted that taking note of the serious medical condition of the petitioner he shall be released on bail. I called for a report from the jail authorities regarding the present health condition of the petitioner and the Superintendent of BA No.2134 of 2023 5 Sub Jail, Manjeri, has forwarded the report of the District Medical Board, Govt. General Hospital, Manjeri which reveals that the petitioner was using narcotic drugs before admission to prison and he developed withdrawal symptoms related to substance use and was treated at Govt Medical College, Manjeri. It is also reported that on examination he is conscious, oriented, co-operative, PMA Talk - normal, Mood - anxious and that the mental status examination is inconclusive and he needs serial examination in an inpatient setting. Learned Addl. Prosecutor submits that whatever necessary treatment that are required will be provided to him. Learned Public Prosecutor relies on the judgment of the Apex Court in State of _**UP v. Gayatri Prasad Prajapati, 2020 SCC OnLine SC 843, Rosamma v. State of Kerala, 1994 (1) KLT 965, National Investigating Agency v. Redaul Hussain Khan, (2010) 5 Gauhati Law Reports, 704,**_ to contend that the accused has no right to demand for examination by an expert doctor of his choice and it is for the jail authorities and the doctors attached to such institution to take a decision in the matter and court cannot allow the accused to go on bail on the ground of his sickness unless the court takes the view that while remaining in custody, the accused cannot be provided with the required treatment. 7. I have considered the bail application of the petitioner as per Annexure 3 order and rejected the said request. The offence BA No.2134 of 2023 6 committed by the petitioner is of a grave nature and was executed in a very brutal manner. The petitioner has criminal antecedents of even having committed an 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 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]._ 8. Learned Addl. Public Prosecutor relying on the decisions in **P…..v. State of Madhya Pradesh, 2022 SCC OnLine SC 552** , and BA No.2134 of 2023 7 ## _**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 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. Though the petitioner cited his present health condition as a change in circumstance, the report submitted by the jail authorities shows that proper treatment is provided to the petitioner and therefore, based on the judgments cited supra, I am of the opinion that the same by itself is not a ground for grant of bail to the petitioner. But there will be a direction to the jail authorities to see that all necessary and adequate medical treatment is extended to the petitioner without any fail. Considering the facts and circumstances of the case and BA No.2134 of 2023 8 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 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** cks