Prasanth T v. The State of Kerala and Addl. R2

**BAIL APPL. NO. 8463 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 23[RD] DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943 BAIL APPL. NO. 8463 OF 2021 AGAINST SC 845/2020 OF II ADDITIONAL DISTRICT COURT & SESSIONS COURT, KOLLAM** ## **PETITIONER/ACCUSED :** PRASANTH T AGED 33 YEARS S/O SREEDHARAN NAMBIAR, THODUVAYIL HOUSE, CHANGAROTH P.O, PERUVANNAMUZHI, KOZHIKODE-673541. BY ADV P.JERIL BABU ## **RESPONDENT/CLAIMANT & STATE :** 1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682031. **2 ADDL. R2 SMT. VIJAYALEKSHMI AGED 65 YEARS, W/O SIVADASAN PILLAI, SREE VIHAR, NADUVILAKKARA, MUKHATHALA, PIN-691577 IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED 23.11.2021 IN CRL.M.A. NO.1 OF 2021. BY ADVS. SRI. C.K. SURESH, SR. PP. **BAIL APPL. NO. 8463 OF 2021 2** SRI. S.RAJEEV SRI. V.VINAY SRI. M.S.ANEER SRI. SARATH K.P. SRI. K.K.DHEERENDRAKRISHNAN THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BAIL APPL. NO. 8463 OF 2021** **3** ## **ORDER** This application for regular bail is filed under Section 439 of the Code of Criminal Procedure by the sole accused in S.C.No.845/2020 on the file of the Additional Sessions Court - II, Kollam. In the aforesaid case, the accused faces indictment for having committed offence punishable under Sections 302 and 301 of the IPC. 2. The victim is a lady with whom the petitioner was having close acquaintance. The prosecution alleges that the victim was abducted by the applicant on 17.03.2020 from Kallumthazham, Kollam in his car bearing registration No. KL 51 B 4404 by offering companionship and mental support. She was taken to Palakkad and they are alleged to have stayed in the house taken on lease by the applicant from 17.03.2020 to 20.03.2020. The prosecution alleges that the petitioner strangulated her with a wire and thereafter caused multiple blunt injuries on her chest and murdered her. With a view to wipe off the evidence, the petitioner is stated to have chopped off the legs of the victim and thereafter, burnt the remnants and buried the same in the nearby property. It is further alleged that the accused managed to siphon off an amount to the tune of Rs.2,56,000/-(Rupees Two lakhs fifty six thousand only). He is alleged to have taken some gold ornaments from the body of the corpse as well. Investigation was completed and the final **BAIL APPL. NO. 8463 OF 2021 4** report was laid before the jurisdictional court. 3. Sri.Jeril Babu. P., the learned counsel appearing for the applicant submitted that the applicant had earlier approached this Court and by Annexure-A1 judgment, the application for bail was dismissed. However, while dismissing the prayer, the trial court was directed to expedite the trial proceedings and take the matter to its logical conclusion at the earliest. It is submitted by the learned counsel that though the said order was passed almost a year back, nothing further has transpired. The applicant got afflicted with COVID-19 and his health condition is bad. It is further submitted that the applicant had undergone major surgeries in the year 2010 and this has also taken a toll on his health. His aged parents are left in the lurch and without his support. It is further submitted that as many as 92 witnesses have been cited, most of whom are residing in other Districts. Even if the trial were to commence, there is no possibility of the same being concluded in the near future. It is further submitted that the petitioner has been in custody from 29.4.2020 and it would not be in the interest of justice to keep him under incarceration for a further period. According to the learned counsel, stringent conditions can be imposed by this Court to ensure that the petitioner would not tamper with the evidence or influence the witnesses. The learned counsel urged that a person on bail has a better chance to prepare or present his case than one in custody. Relying on the decision of the Apex Court in G.Narasimhulu v. Public Prosecutor [AIR 1978 **BAIL APPL. NO. 8463 OF 2021 5** SC 429], it was contended that the requirement for bail is to secure the attendance of the prisoner and it is the duty of the court to admit the accused to bail, wherever practical unless there are strong grounds for supposing that such person will not appear to take the trial. The learned counsel has also referred to the decision of the Apex court in Dataram Singh v. State of Uttar Pradesh [2018 (3) SCC 22] and it is argued that while considering an application for bail, this Court should not be carried away by the severity of the accusations. He would also place heavy reliance on the decision of the Apex Court in State of Kerala v. Raneef [(2011) 1 SCC 784] and it is argued that when under-trial prisoners are detained in jail custody for an indefinite period, Article 21 of the Constitution is violated. The long period of detention undergone by the applicant is highlighted by the learned counsel to persuade this Court to release him on stringent conditions. 4. Sri.C.K.Sureshkumar, the learned Public Prosecutor, has opposed the prayer. It is submitted that this Court while dismissing the earlier application had considered the nature and gravity of the allegations, the severity of the injuries inflicted, the materials in support thereof, the role attributed, the antecedents and the likelihood of the applicant getting involved himself in other crimes and the possible apprehension of the applicant influencing and terrorizing the witnesses were taken note of while dismissing the earlier application. According to the learned Public Prosecutor, pursuant to directions issued by this Court, the learned Sessions Judge had **BAIL APPL. NO. 8463 OF 2021 6** scheduled the case for trial and the charge has also been framed. The learned Public Prosecutor would also highlight the various facets of the case to bring home the point that the release of the applicant on bail would be detrimental to a free and fair trial. 5. Sri. S. Rajeev, the learned counsel appeared for the de facto complainant had opposed the request of the petitioner for grant of bail. It is submitted by the learned counsel that the petitioner had challenged the order refusing bail before the Hon’ble Supreme Court and by Annexure-R2(a) order dated 20.4.2021, the Special Leave to Appeal (Criminal) was rejected. It is submitted that there is no change of circumstances to take a different view now. The learned counsel has also submitted that a Special Public Prosecutor has been appointed to conduct the trial and in that view of the matter, the apprehension of the petitioner that the trial would be delayed has no basis. 6. I have considered the submissions advanced. 7. The records made available reveals that the applicant had induced a young lady by feigning love and she was taken to a rented house at Palakkad. She was brutally murdered and her legs were chopped off. The medical certificate reveals that she had suffered rib fracture as well. She was burned and the remnants were buried in a property just behind the house of the applicant. The prosecution has cited several witnesses to prove the case against the applicant herein. The main apprehension of the prosecution is that the applicant would influence the witnesses and terrorize them. While **BAIL APPL. NO. 8463 OF 2021** **7** dismissing the earlier application, this Court took note of the serious nature of the allegations levelled against the applicant and the reasonable apprehension of the prosecution that if released on bail, the applicant would manage to influence the witnesses and tamper with the evidence. This Court had also considered the nature of accusations, the nature of the evidence in support 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. This Court had also taken note of the observations made by the Apex Court in Mahipal v. Rajesh Kumar @ Polia and Another (2020 (2) SCC 118), wherein it was held that an appropriate balance between public interest in the administration of justice and the protection of individual liberty has to be struck pending adjudication of the case. 8. In view of the submission of the learned counsel that despite the directions issued by this Court, the trial had not proceeded one step further, a report was called for from the learned Sessions Judge. In the report, it is stated as follows: “ I may most respectfully submit that the counsel for the accused was not present on 12.11.2021 and hence hearing on charge u/s **BAIL APPL. NO. 8463 OF 2021 8** 227 of Cr.P. adjourned. Subsequently, on 20.11.2021, both sides were heard on the question of discharge and this court proceeded to frame a charge against the accused. The accused produced today. Charge framed, read over to the accused in Malayalam and he pleaded not guilty. The trial in this case scheduled to begin from 10.12.2021. There are 92 witnesses cited by the prosecution. This court closing for Christman vacation on 23.12.2021. If permission is granted for conducting trial during the Christmas vacation, the trial could be concluded within 2 months. Hence, I most respectfully request to grant permission to conduct trial of SC.No.845/2020 during Christmas Vacation, the periods from 24th to 31st of December, 2021.” ## 9. From the report it is obvious that all steps are being taken by the trial court to expedite the proceedings. 10. I agree with the learned counsel appearing for the applicant that the delay that has occurred in commencing the trial cannot solely be attributed to the applicant. The restrictions imposed in view of the pandemic has been lifted and trial can commence without delay. Though the period of incarceration undergone by the applicant cannot be ignored, this Court cannot be unmindful of the severe nature of the accusation and the apprehension expressed by the prosecution cannot be brushed aside. This is a case in which the applicant had murdered a lady in a brutal manner. As **BAIL APPL. NO. 8463 OF 2021 9** held by the Apex Court in Ram Govind Upadhyay v. Sudarshan Singh (AIR 2002 SC 1475), while the liberty of an individual is precious and there should always be an all-round effort on the part of Courts to protect such liberties of individuals, but this protection can be made available to the deserving ones only. Liberty is to be secured through a process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim and also the collective interest of the community in order to ensure that parties do not lose faith in the institution and indulge in private retribution. 11. In Ash Mohammad v. Shiv Raj Singh @ Lalla Babu and Anr. , the Apex Court while dealing with individual liberty and cry of the society for justice has opined as under: “It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well - meaning person desires. **BAIL APPL. NO. 8463 OF 2021 10** 19. We are absolutely conscious that liberty is a greatly cherished value in the life of an individual, and no one would like to barter it for all the tea in China, but it is obligatory on the part of court to scan and scrutinize, though briefly, as regards the prima facie case, the seriousness and gravity of the crime and the potentiality of the accused to tamper with the evidence apart from other aspects before the restriction on liberty is lifted on imposition of certain conditions." Having regard to the entire aspects, I find no reason to enlarge the applicant on bail. The learned Sessions Judge shall endeavour to expedite the trial as stated in the report. This application will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** NS