PIAS and LIBIN SALAS v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 06TH DAY OF DECEMBER 2019 / 15TH AGRAHAYANA, 1941** ## **BAIL APPL..NO.8728 OF 2019** ## **CRIME NO.993 OF 2019 OF THE PUNNAPRA POLICE STATION, ALAPPUZHA DISTRICT** ## **PETITIONERS/ACCUSED :** |**1**|**PIAS, AGED 24 YEARS,**| |---|---| ||**S/O FELIX, PARAYAKKATTIL HOUSE,**| ||**PUNNAPRA VILLAGE,**| ||**SOUTH SIDE OF PARAVUR RAILWAY CROSS,**| ||**ALAPPUZHA DISTRICT.**| |**2**|**LIBIN SALAS, AGED 25 YEARS,**| ||**S/O SALAS, VALIYA VEETTIL,**| ||**PUNNAPRA VILLAGE, NEAR PONTHOTTAM SCHOOL,**| ||**ALAPPUZHA DISTRICT.**| ||**BY ADV. SRI.C.K.RAPHEEQUE**| ## **RESPONDENTS/COMPLAINANT/STATE :** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031, REPRESENTING THROUGH STATION HOUSE OFFICER, PUNNAPRA POLICE STATION, ALAPPUZHA DISTRICT, PIN - 682 018.** ## **SRI SAJJU S., SENIOR PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **BAIL APPL..NO.8728 OF 2019** **2** ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The applicants herein are accused Nos.11 and 14 in Crime No.993 of 2019 of the Punnapra Police Station registered under Sections 143, 147, 148, 149, 364, 302, 118 and 201 of the IPC. 3. It appears that the investigation has been completed in the above case and final report has been laid on 15.11.2019 before the learned Judicial Magistrate of the First Class, Ambalappuzha, where the case is pending as C.P. No.59 of 2019. 4. The case relates to the murder of one Manu. According to the prosecution, the accused had previous enmity towards the aforesaid Manu @ Kakan Manu and they were looking out for an opportunity to do away with him. On 19.08.2019, the accused, with intent to murder the aforesaid Manu, wrongfully restrained him outside the Bonanza bar near Paravur junction and the 1[st] accused is alleged to have attacked him. Accused Nos.2 to 4 joined the first accused and inflicted grievous injuries on his body. After inflicting injuries as aforesaid, the aforesaid Manu was **BAIL APPL..NO.8728 OF 2019** **3** abducted by accused Nos.2 and 3 in a scooter and he was taken to the Galeelio beach which is situated on the western side of Paravur. Manu was pulled down from the scooter and he was taken to the beach. It is further alleged that the 1[st] accused then summoned accused Nos.7 to 14 over on his mobile phone and they reached the spot and Manu was brutally attacked leading to his death. It is further alleged that accused No.15 reached the spot thereafter and he is alleged to have given instructions to the rest of the accused to bury the body of the aforesaid Manu in the beach and burn his clothes and other personal items. 5. Meanwhile, since Manu was missing for a couple of days, his father approached the police and gave a compliant on 21.08.2019, based on which a crime was registered under Section 57 of the Kerala Police Act, 2011. Accused Nos.2 to 4 were arrested on 22.08.2019 and the 5[th] accused was arrested on 24.08.2019. It appears that the 5[th] accused disclosed about the burial of the body of Manu and based on the said disclosure, the body was recovered from the beach. The applicants herein were arrested on 25.09.2019 and 23.09.2019 respectively and according to the prosecution, their presence and participation were spoken to by CW15, who is the star eye witness of the incident which took place in the beach. The prosecution also alleges that deceased Manu was a member **BAIL APPL..NO.8728 OF 2019** **4** of the Shapumukku group and the accused are the members of Galeelio group and these groups were engaged in a gang war. 6. Sri. C.K. Rapheeque, the learned counsel appearing for the applicants submitted that the applicants were roped in as accused about a month after the incident and that too on the strength of the statement given by CW15. It is submitted that CW15 is a planted witness and no reliance can be placed on his statement. It is further submitted that the injuries were all inflicted by accused Nos.1 to 4 and the applicants herein, being autorickshaw drivers were not even present at the scene of crime. It is further submitted that, a perusal of the final report would show that the applicants were roped in with the aid of Section 149 of the IPC and having regard to the role assigned to the applicants and the period of incarceration undergone, it is only just and proper that they be released on bail. 7. The learned Public Prosecutor has opposed the prayer. It is submitted that the prime witness, who has spoken about the involvement of the applicants herein is CW15 and if the applicants are released on bail, there is every chance that they would terrorize the witness and tamper with the evidence. He would further contend that all the accused are habitual offenders with the involvement in numerous crimes and they are **BAIL APPL..NO.8728 OF 2019** **5** the members of a notorious gang. He would point out that accused No.2 is involved in as many as 7 crimes, accused No.4 in 10 crimes, accused No.10 in 8 crimes and accused No.15 in 11 other crimes. Proceedings under the Kerala Anti-Social Activities Prevention Act has also been initiated against the accused. It is further submitted that the rest of the accused including the applicants herein are also involved in earlier crimes. Relying on the postmortem certificate it is submitted that serious injuries were inflicted. There are also reasons to suspect that Manu was buried when he was actually alive as sand was found inside his air ways. The severity of the injuries inflicted, the antecedents of the applicants and the likelihood of them interfering with the course of justice is highlighted by the learned Public Prosecutor to persuade this Court to refuse bail to the applicants. 8. The principles, which the Court must consider while granting or declining bail, have been stated by the Apex Court in a catena of cases. In **Prahlad Singh Bhati v. NCT, Delhi** [(2001) 4 SCC 280], it was held thus: “The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support **BAIL APPL..NO.8728 OF 2019** **6** thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.” 9. The very same principles were reiterated in **State of U.P. v. Amarmani Tripathi** [(2005) 8 SCC 21] as well. 10. In a recent judgment of the Hon'ble Apex Court in **Mahipal v. Rajesh Kumar @ Polia and Another** (judgment dated 5.12.2019 in Crl.A.No.1843 of 2019), it was held that the provisions for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by the higher courts. The court will have to balance numerous factors that guide the exercise of the discretionary power to grant bail in a case to case basis. Inherent in this determination is whether, on an **BAIL APPL..NO.8728 OF 2019** **7** analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding. 11. Coming back to the case on hand, the apprehension expressed by the State that the applicants would manage to make the trial into a farce, if they are released on bail, cannot be brushed aside. As held by the Apex Court, the reasonable possibility of the witnesses being tampered with and the possibility of securing the presence of the accused at the time of trial are valid considerations. The materials made available also show that the accused are hardened criminals and the likelihood of a retaliative incident occurring is also is highly likely. In the case on hand, the accused is charged for having committed a serious offence. The mere fact that the applicants have been in custody for some time may not be a reason to allow his application for bail. As held by the Apex Court in **Rajesh Ranjan Yadav** v. **CBI** (AIR 2007 SC 451), while Article 21 is of great importance, a balance must be struck between the right of liberty of the person accused of an offence and the interest of the society. No right can be absolute and reasonable restrictions can be placed on the exercise of the rights. The grant of bail due to prolonged incarceration cannot be **BAIL APPL..NO.8728 OF 2019** **8** said to be an absolute rule because, the grounds of bail must depend upon the contextual facts and circumstances. 12. Having considered all the relevant facts, I find no reason to allow this application and grant bail to the applicants. This application will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** **NS**