P. Jayarajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN** **MONDAY, THE 13TH DAY OF AUGUST 2012/22ND SRAVANA 1934** **Bail Appl..No. 5755 of 2012 ()** **-----------------------------CRIME NO.136/2012 OF KANNAPURAM POLICE STATION, KANNUR DISTRICT** **ACCUSED(S)/ACCUSED NO.38:** **------------------------** **P. JAYARAJAN, AGED 55 YEARS S/O.KUNHIRAMAN, POOKODE, KUTHUPARAMBA C.P.I(M), KANNUR DISTRICT SECRETARY.** **BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.SOJAN MICHEAL SRI.P.NARAYANAN SRI.GILBERT GEORGE CORREYA SRI.V.S.BOBAN** ## **RESPONDENT/COMPLAINANT:** **---------------------------** **STATE OF KERALA (CIRCLE INSPECTOR OF POLICE, VALAPATTANAM) REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **BY PUBLIC PROSECUTOR SRI.R.RANJITH BY SRI.T.ASAF ALI, DIRECTOR GENERAL OF PROSECUTIONS** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 13-08-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE I: COPY OF THE REMAND REPORT DATED 01.08.2012 OF THE PETITIONER, SUBMITTED BY THE INSPECTOR OF POLICE, VALAPATTANAM BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANNUR.** **ANNEXURE II: COPY OF THE ORDER DATED 12.04.2012 IN BAIL APPLICATION NO.2113/2012 OF THIS HONOURABLE COURT.** **ANNEXURE III: COPY OF THE REMAND REPORT DATED 26.05.2012 OF ACCUSED NOS.18, 21, 22 AND 30 SUBMITTED BY THE INSPECTOR OF POLICE, VALAPATTANAM BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KANNUR.** **ANNEXURE IV: COPY OF THE FIR IN CRIME NO.229/2012 DATED 20.02.2012 OF TALIPARAMBA POLICE STATION.** **ANNEXURE V: COPY OF THE ORDER DATED 04.08.2012 IN C.M.P.NO.3256/2012 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KANNUR.** **//TRUE COPY//** ## **P.A. TO JUDGE** ## **S.S.SATHEESACHANDRAN, J. ------------------------------B.A.NO.5755 OF 2012 ----------------------------------Dated this the 13[th] day of August, 2012** ## **O R D E R** Petitioner is one among the accused (A38) in Crime No.136/2012 of Kannapuram Police Station, Kannur District, registered for offences punishable under Sections 143, 147, 148, 447, 364, 324 and 307 read with Section 149 of Indian Penal Code, for short, ‘the IPC’, the investigation of which is now being continued incorporating some other offences also including Section 302 IPC. 2. On account of political animosity and in retaliation to an attack made on some leaders of Marxist party, some workers/followers of that party as members of an unlawful assembly, after keeping in duress some workers of another political party, namely, Indian Union Muslim League, One Shukkoor and his companions, in Keezhara in Kannur District, at a time between 12.30 and 2.30 p.m, assaulted their captives, and consequent to stab injuries inflicted the aforesaid Shukkoor **B.A.No.5755/2012** **2** succumbed, and his companions suffered severe injuries, according to the prosecution. The victim and his companions who had taken refuge in a residential building were dragged out by their assailants, who were armed with deadly weapons, and after taking their photos in mobile and relaying them to fix their identity as involved in the attack of the party leaders, and instructions received, the victim Shukkoor after taken to a nearby paddy land was stabbed to death. A few hours before the assault on Shukkoor an untoward incident had taken place at a place situate few kilometers away, in which some party workers of Indian Union Muslim League intimidated some party leaders of the Marxist party, who included the petitioner and a local M.L.A when they visited that place. Petitioner, the District Secretary of the Marxist Party, after the aforesaid incident, with the M.L.A and some other party workers, was in a hospital. Shukkoor and his companions after being kept under wrongful restraint at a spot situate some kilometers away from the hospital and their suspected involvement in the attack on the leaders being conveyed to a local leader, local Secretary of **B.A.No.5755/2012** **3** Marxist party, in the presence of petitioner and local M.L.A that local leader, who is proceeded as one among the accused (A30), gave instruction over phone ‘to deal with the captives’. In implementing that instruction the captors dealt with the captives stabbing Shukkoor to death and inflicting serious injuries to his companions, according to the prosecution. On the basis of the materials collected during investigation the petitioner has been included as one among the accused in the crime (A38) imputing the offence of Section 118 of the IPC against him for having not informed the police the design formed by the assailants with the local Secretary, A30, who gave instructions over phone in his presence to deal with the captives kept in duress by their assailants. 3. Petitioner was arrested on 01-08-2012, and his application moved before the Magistrate for his enlargement on bail had been turned down. He has therefore moved the above application for bail contending that he has been falsely implicated in the crime and, further, the offence imputed against **B.A.No.5755/2012** **4** him has no basis or sustainability under law. 4. I heard the learned senior counsel Shri.M.K.Damodaran who appeared for the petitioner, and Shri.Asaf Ali, learned Director General of Prosecutions, for short, the 'D.G.P.'. 5. Petitioner is the District Secretary of the Marxist party in Kannur District and he had been questioned twice in connection with the crime by the investigating agency before his arrest on 01-08-2012, is the submission of his counsel. He was directed to appear for further questioning on the above date before the police and, without even informing him the grounds of arrest nor having any further questioning, he was arrested negating all the principles and guidelines given by the Supreme Court in D.K Basu’s case **(D.K.Basu v. State of West Bengal (1997 SCC (Crl.) 92)** , according to the counsel. Even the investigating agency has no case the petitioner has any role in the commission of the crime involving the murder of Shukkoor but only that he overheard the instruction passed to the captors **B.A.No.5755/2012** **5** of Shukkoor and his companions by the local Secretary of the party (A30) over phone and he did not inform the police to prevent the occurrence. Petitioner with the local M.L.A and some party workers after they were attacked by some Muslim League party workers, consequent to the injuries sustained in such assault, were at the hospital. Presence of police party in the hospital to record the statement of the petitioner when the alleged phone call was received from the captors of Shukkoor and instructions were stated to have been given by A30, is a telltale circumstance which would show that the petitioner has been falsely implicated in the crime, according to the counsel. 6. Placing much emphasis over the illustration given to Section 118 of the IPC, the learned senior counsel contended that the penal provision thereof can be imputed against a person only in a case where it is shown that he had given false information with intend to facilitate the commission of the offence, and not otherwise. At any rate, unless a person does any positive act whereby he facilitates commission of an offence **B.A.No.5755/2012** **6** that penal provision cannot be proceeded against him is the further submission of the counsel. Incorporation of the above offence against the petitioner on the allegation imputed of is nothing but an abuse of that penal provision covered by the Code and it has been so done out of political illwill and animosity to manacle the petitioner as a co-accused in the crime to tarnish and defame him and also his party, according to the learned senior counsel. While the petitioner was in hospital not only the local M.L.A, but, several party workers and also the police party who reached there to record his statement were present. When that be the situation, the allegation imputed that he overheard some conversation over phone made by the local Secretary giving some instructions to the captors of Shukkoor to deal with the captives effectively is highly improbable. His implication as an accused for overhearing the phone call of A30 and thus knowing the design to commit the crime he did not inform the police, to impute that thereby he facilitated its commission, in the fact situation involved, is hardly susceptible, submits the learned senior counsel. **B.A.No.5755/2012** **7** 7. Annexure I remand report of the petitioner is referred to by the counsel to contend that the only imputation made thereunder is that he overheard the phone call made by A30 but did not inform the police to prevent the occurrence and thereby he is culpable for the offence under Section 118 of IPC. On the fact situation presented surrounding the alleged phone call made by A30, the accusation made has no basis at all, submits the counsel. Observation made by this court in Annexure II order passed by this court in a bail application moved by another accused in the crime that during the investigation of the crime ‘there is an attempt to widen the net’ is banked upon by the counsel to contend that the petitioner has been falsely implicated in the crime on baseless allegations. Annexure III remand report filed in the crime in respect of some other accused, including A30, is also relied to contend that even at that stage there was no allegation of any complicity in the crime by the petitioner. Annexure IV is the F.I.R registered in the crime over the incident in which the petitioner, the local M.L.A and some party workers **B.A.No.5755/2012** **8** are stated to have been assaulted by some workers of Indian Union Muslim League at Ariyil in Pattuvam on the same date of the occurrence in the present case, but a few hours before. That crime over the assault on the petitioner, the M.L.A and his party workers, recording his statement has been registered under Section 307 IPC and other offences, is also canvassed by the counsel with reference to his hospitalization after the occurrence in that case, to contend that his implication in the crime as a co-accused is baseless. 8. Petitioner is a chronic cardiac patient undergoing treatment after having undergone three angioplasty, he is physically disabled and not even having full stretch movements of his hands consequent to an assault on his person a decade ago in which he lost two fingers as well, that he cannot wear his dresses without the help of a bystander, his hearing capacity is weak, he requires continuous physiotherapy and he has been advised to have continuous medical treatment, are other circumstances canvassed by the counsel placing reliance on **B.A.No.5755/2012** **9** copies of some documents including those relating to his treatment, produced as Annexures VI to X with a petition. 9. The learned counsel for the petitioner relied on **Sanjay** **Chandra v. Central Bureau of Investigation 2012 (1) SCC (Crl.) 26)** to urge what are the factors to be taken into relevant consideration in the grant of bail. Observations made in paragraphs 21 to 27 in the above decision are canvassed by the counsel contending that one must not lose sight of the fact that imprisonment before conviction has a substantial punitive content and the object of bail is neither punitive nor preventative deprivation of personal liberty, and declining bail should be an exception, only if justifiable circumstances are presented in the case to do so. No such circumstance has been made out on the fact situation in the case, which, on the contrary, would indicate that the petitioner has been falsely implicated in the crime on frivolous allegation, is the submission of the counsel. The learned counsel urged for enlarging the petitioner on bail subject to conditions as may deem fit and proper to this Court. **B.A.No.5755/2012** **10** 10. Strongly opposing the application the learned Director General of Prosecutions contended that the murder of Shukkoor was too gruesome and the perpetration of the crime was in retaliation of an attack on the petitioner and the local M.L.A a few hours before, that too on the basis of a design formed by the assailants with the co-conspirators, including A30. Circumstances under which Shukkoor was stabbed to death is so shocking and it has all the trappings of a murder committed by Talibans, is the submission of the D.G.P. The victim and his companions who had taken refuge in a residential building were surrounded by their assailants, party workers of the petitioner, numbering about 50 persons, who were armed with deadly weapons. They took photos of the victim and his companions in mobile and relayed it to their leaders to ascertain their involvement in the attack on their party leaders, which occurred few hours before. The assailants got instruction to deal with them. Three among the companions of Shukkoor were dragged out of the house and assaulted, who, later, were brought back to **B.A.No.5755/2012** **11** the house. Thereafter Shukkoor and another were taken to a nearby paddy land and in implementation of the instruction received, the assailants stabbed to death Shukkoor and inflicted multiple severe stab injuries on his companion, according to the Director General of Prosecutions. Instruction to deal with the victim and his companions over phone was given by the local secretary of the party, A30, in the presence of the petitioner and the local M.L.A, while all of them were in the hospital room. If the petitioner had raised a little finger to restrain A30 and the assailants the murder of Shukkoor in the brutal manner would not have taken place. In fact he has facilitated the design formed to commit the murder of Shukkoor by not informing the police after knowing of such design. His inculpation as a co-accused for the offence under Section 118 of IPC, which is borne out by the materials gathered in the investigation, is not open to doubt, is the further submission of the Director General of Prosecutions. Investigation is still in progress and a definite conclusion can be formed only after collection of materials whether he is culpable of having criminally conspired with the **B.A.No.5755/2012** **12** other accused in the commission of the murder of Shukkoor, is the further submission of the Director General of Prosecutions. 11. After the arrest of the petitioner in the crime, a State wide hartal was organized by his party protesting his arrest, in which destruction of public property in a mass scale and attack on police personnel causing injuries to 118 of them in Kannur District alone, some of them sustaining very serious injuries, had been caused, according to the learned DGP. A chart showing the statistics over the attacks made and loss of properties in connection with the arrest of the petitioner is also placed. Almost all the offices of the political parties opposite to the party of the petitioner in Kannur District were destroyed and demolished by the attacks made in the protest carried over his arrest. 712 crimes have been registered in connection with the protest and attacks made, in which value of properties damaged, including both private and public has been assessed at Rs.2,23,87,561/- (Rupees Two Crores twenty three lakhs eighty seven thousand five hundred and sixty one only). Even family **B.A.No.5755/2012** **13** members of the police personnel who were involved in the arrest of the petitioner are threatened and intimidated by the party workers, and some of the families of those police personnel who reside in Kannur are provided round the clock security in view of the constant threat to them, to prevent any mishap, is the further submission of the D.G.P. The whole State has been kept at ransom by the hartal conducted on the day organized to protest his arrest, and the lawlessness perpetrated in Kannur District has undermined and seriously affected the morale of the police personnel, especially those in the lower levels in that District, is the submission of the learned DGP to oppose the application of the petitioner for his release. Protest organized by his party and the lawlessness that followed deserve to be taken note of by this court in considering his application for bail, is the further submission of the DGP pointing out that his release on bail at this stage would send shock waves unsettling the confidence reposed by the witnesses connected with the crime in the investigating agency and the justice delivery system. **B.A.No.5755/2012** **14** 12. I have adverted to some facets of the crime as presented by the learned senior counsel appearing for the petitioner and also the learned DGP only for the limited purpose, for consideration of this bail application, and, at this stage, it is not appropriate for this court to express any opinion nor make any observation over the circumstances connected with the crime. True, reference to the factual aspects presented has to be taken note of for the limited purpose to determine the entitlement of the petitioner for bail, having regard to the principles governing the grant of such discretionary relief. Petitioner is the District Secretary of his party in Kannur District. Petitioner and an M.L.A of his party, and some workers as well, were attacked by some workers of Indian Union Muslim League. After such incident they were in a hospital. A few kilometers away some of the workers of the Indian Union Muslim League including Shukkoor who have taken refuge in a residential building were encircled by some of his party workers. In retaliation of the attack on their leaders, after getting instruction, Shukkoor was stabbed to death and his companions **B.A.No.5755/2012** **15** were assaulted causing them severe injuries. Instruction to deal with Shukkoor and his companions was given by the local secretary of the party over phone in the presence of the petitioner and the party M.L.A, is the crux of the case to proceed against the petitioner of having facilitated the crime even after knowing the design to commit the crime in not informing it to the police. Though various circumstances were presented by the learned senior counsel over the bodily weakness of the petitioner including his disablements the fact remains he is the District Secretary of a political party, prima facie, indicating that he is capable of discharging the functions attached to that post. Petitioner and an M.L.A and some workers were attacked by some workers of an opposite party and as a result of this they had to seek hospitalization. In the presence of the petitioner and local M.L.A if any information had been received by a local secretary of his party, where the prosecution allegations imputed in the crime are such that photos of the captives were relayed over the mobile to ascertain their identity as assailants of the petitioner and local M.L.A, whether the petitioner overheard the **B.A.No.5755/2012** **16** phone call made by the local Secretary or not may not be the only circumstance which may assume significance in considering the question whether he had in any way facilitated the design to commit the murder of Shukkoor. The investigating agency has proceeded against the petitioner under Section 118 of IPC imputing the allegation that he knew of the design by overhearing the instruction given by A30 to the captors of Shukkoor and companions to deal with them but did not inform the police to prevent the occurrence, with intend to facilitate the design to commit the crime. That imputation, at this stage, cannot be assessed in isolation without having a perception to the back drop of the entire scenario and more particularly whether a local Secretary would have passed on such an instruction, if that be so, without gaining of the attention or knowledge of the petitioner, the District Secretary. 13. I do not find any merit in the submission made by the learned senior counsel that the illustration to Section 118 of IPC takes all situations covered under that penal offence. The **B.A.No.5755/2012** **17** illustration deals with one among the situations that of furnishing false information and misleading with intend to facilitate the commission of the offence. After the amendment made to the Section, by the Amendment Act 10 of 2009, even omission to inform, after knowing a design to commit an offence punishable with death and imprisonment for life, with intend to facilitate the commission of such offence, is culpable under Section 118. So much so, at this stage, when the investigation is in progress, the prosecution allegations imputed that the petitioner knew the design to commit the crime which resulted in the murder of Shukkoor, and with intend to facilitate the commission of offence he did not inform the police, or omitted to do so, and, therefore, liable to be proceeded under Section 118 of IPC cannot be taken exception to. 14. The remand reports filed in respect of some other accused in the crime, at different stages of investigation, do not make any mention of the complicity of the petitioner for any offence is not at all a circumstance indicating that he has been **B.A.No.5755/2012** **18** falsely implicated. He was questioned twice and the arrest was made when he was directed to appear for further questioning in no way can be canvassed as a circumstance that his arrest has been made violating the principles in D.K.Basu’s case. Even assuming that one or other principle laid down in that decision has been flouted that cannot have any decisive effect in judging his entitlement over the discretionary relief of bail, which, no doubt, has to be evaluated on time tested principles applicable thereto. When that be so, the observations made in Annexure II order in a bail application filed by another accused with reference to the FIR registered in the crime and investigation later proceeding against other accused persons not named in that report, cannot be given much consideration to doubt the fairness of the investigation conducted in the crime. Observation, if any, made in the bail application at that stage of investigation can have relevance only to the application considered, which, it is seen, had been dismissed holding that considering the nature of the offences committed, the petitioner thereof cannot be released on bail. So much so, the **B.A.No.5755/2012** **19** circumstances canvassed with reference to remand reports and Annexure II order by the learned senior counsel do not assist the petitioner in any way for grant of bail in his favour. 15. Learned senior counsel has relied on Sanjay Chandra’s case, cited supra, wherein the Supreme Court has adverted to and given emphasis to the broad principles applicable in the grant of bail, a discretionary relief, and also relevant considerations applicable at different stages of the case, more particularly, pre and post charge stages. The object of bail is to secure the presence of the petitioner for trial, but the grant of that discretionary relief depends upon various factors and circumstances presented in the case. One among such factors that has necessarily to be taken note of with respect to the personal liberty of the accused is the interest and protection of the society. In **Siddharam Satlingappa Mhetre v. State of Maharashtra ((2011) 1 SCC 694),** highlighting the above aspect, the Supreme Court has held thus: **B.A.No.5755/2012** **20** _“Society has a vital interest in grant of refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interest, namely, sanctity of individual liberty and the interest of the Society. The law of bails dovetails two conflicting interests, namely on the one hand, the requirements of shielding society of the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to the fundamental principles of criminal jurisprudence regarding presumption of innocence of accused until he is found guilty and the sanctity of individual liberty.”_ 16. In shielding society from the hazards of those committing crimes, it is not only the individual acts perpetrated by him, which had given rise to the crime, but, even the consequences that followed, in which he is directly or indirectly involved, have to be taken note of, and, if that has debilitating effect of undermining the confidence of the society in the justice delivery system a court exercising its discretionary relief in the grant of bail cannot shut it out with a Nelson’s eye. Can this court be oblivious to the circumstances presented by the D.G.P., the violence unleashed in the aftermath of the arrest of the **B.A.No.5755/2012** **21** petitioner in which protests made is stated to have transgressed all limits causing destruction to private and public property in a mass scale apart from causing injury to a good number of police personnel ? Protest against the arrest of a person in a crime that too involving the offence of murder organizing a hartal throughout the State may be one within the option of a political party, but chaos and lawlessness unleashing violence in such protests taken and wanton destruction of public and private property, if condoned, that would jeopardize the fabric of the society and, definitely, undermine the faith of the public in the law enforcing agencies and justice delivery system. Chart furnished by the D.G.P. showing the number of cases registered, and police personnel injured, and destruction of public and private properties, its value coming to crores, with the circumstances presented that there is threat even against the family members of the police personnel, necessarily, have to be weighed and evaluated in considering the competing interest of the society with that of the personal liberty of the petitioner to seek bail. Witnesses connected with the crime and the police **B.A.No.5755/2012** **22** personnel and their families require to be insulated from any threat from any quarters against their person and property. If there is any threat thereto that too by a concerted action of a group or party, that also has to be taken note of, in the exercise of the discretionary relief canvassed of. Circumstances presented in the case with the gravity of the offences imputed and also the potential threat emanating, having regard to the violence unleashed protesting against the arrest of the petitioner, is clearly indicative that protection of the interest of the society should gain the upper hand, and the petitioner, at this stage, when the investigation is in progress, is not entitled to the discretionary relief of bail. Bail application is dismissed. ## **S.S.SATHEESACHANDRAN JUDGE** prp