Rajan v. State of Kerala and The Sub Inspector of Police, Areacode Police Station, Malappuram District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY,THE 19TH DAY OF SEPTEMBER 2018 / 28TH BHADRA, 1940** **Bail Appl..No. 6162 of 2018** **AGAINST THE ORDER/JUDGMENT IN SC 423/2018 of SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI CRIME NO.72/2018 OF AREACODE POLICE STATION, MALAPPURAM** ## **PETITIONER/ACCUSED:** **RAJAN, AGED 42 YEARS, PALATHINGAL HOUSE, POOVATHIKANDI, VALILLAPUZHA, AREACODE, MALAPPURAM DISTRICT. BY ADV. BABU S. NAIR** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN-682 031. 2 THE SUB INSPECTOR OF POLICE, AREACODE POLICE STATION, MALAPPURAM DISTRICT, PIN-673 639.** **BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.09.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** :2 : BA.6162/18 ## **ORDER** This application is filed under Section 439 of the Cr.P.C. 2. The applicant is the accused in Crime No.72 of 2018 registered at the Areacode Police Station, under §302 of the IPC. The deceased is his own daughter, who was aged 21 years when she was murdered. 3. According to the prosecution, the daughter of the applicant fell in love with a man. He was a member of the Scheduled Caste. The deceased was working as a Dialysis Technician at the Medical College Hospital, Kozhikode. The applicant came to know about the affair. He warned the deceased and asked her to cut her ties with her lover. The deceased, being fed up with the threat and harassment, eloped with her lover on 8.3.2018 and went off to Lucknow, where he was working as a Sepoy in the Indian Army. According to the prosecution, the applicant persuaded his daughter to come back home by assuring her that her marriage would be solemnized on 23.3.2018. He thus managed to tactfully persuade the deceased to come back home. On reaching home, she realized that she was duped by her own :3 : BA.6162/18 father. This led to a confrontation. It is alleged that on 22.3.2018, at about 4 p.m., the applicant attacked the deceased with a knife. She managed to escape and took refuge in a nearby house owned by one Abdul Latheef. The applicant followed her and entered the store room of the house where the deceased had entered to save her life. He then inflicted a stab injury on her chest, which bisected her heart and lung. Though the girl was rushed to the KMCT Medical College Hospital, Mukkom, her life could not be saved. The applicant was arrested on the next day and he was remanded. The investigation was completed and final report was laid before the learned Magistrate. The case has now been committed to the Court of Session, Manjeri. 4. Sri.Babu S. Nair, the learned counsel appearing for the applicant, submitted that the applicant herein was a loving father whose life turned topsy-turvy when his favourite daughter had eloped with a man of her choice. On the date of incident, he was in a state of mental trauma and it was in the said circumstance, the unfortunate incident had taken place. According to the learned counsel, the investigation having been completed and final report having been laid, further detention in custody of the applicant will only be punitive. According to the learned counsel, BA.6162/18 :4 : there cannot be any apprehension that the applicant would make himself scarce or thwart the course of justice. The applicant is a family man and the family members are depending on him for their livelihood. It is urged that a man on bail has a better chance to present his case by employing a counsel of his choice than one in custody. It was urged that the fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Referring to a recent judgment of the Hon'ble Apex Court in **Dataram Singh v. State of Uttar Pradesh** [(2018) 3 SCC 22] it was submitted that though the grant or denial of bail is entirely the discretion of the Judge in the facts and circumstances of each case, the exercise of judicial discretion has been circumscribed by the decisions of the Apex Court as well as this Court. The jurisdiction must be exercised judiciously and in a humane manner and compassionately, without being carried away by the brutality of the allegations, submits the learned counsel. 5. The learned Public Prosecutor has very strenuously opposed the prayer. It is submitted that the incident had taken place in the near vicinity of the residential home of the applicant and the main eye witnesses are the near relatives and friends of BA.6162/18 :5 : the applicant. It is submitted that the applicant would manage to terrorize the witnesses and tamper with the evidence and the whole trial would be in shambles if he is now released on bail. It is further submitted that all steps are being taken to expedite the trial proceedings. The diabolic nature by which the offence was committed was highlighted by the learned Public Prosecutor and it was submitted that the life of the eye witnesses would also be in danger if he is now released on bail. It is submitted that the grant of bail is dependent upon the contextual facts and the mere fact that the applicant has been in custody for some time or that the final report has been laid cannot be regarded as compelling factors in a case of instant nature. 6. I have anxiously considered the submissions advanced and have gone through the final report. It is trite that a detailed examination of the evidence and elaborate documentation of the merits of the case should be avoided while passing orders on bail applications. The courts will have to be cautious as the party should not have the impression that his case has been pre-judged. It is also equally 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 :6 : BA.6162/18 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 and finally (ix) the larger interest of the public or the State (See: **State of U.P through CBI v. Amarmani Tripathi** [(2005) 8 SCC 21] ; **Prahlad Singh Bhati v. NCT, Delhi & Anr** . [(2001) 4 SCC 280]; **Ram Govind Upadhyay v. Sudarshan Singh & Ors** . [(2002) 3 SCC 598]; **Pratapbhai Hamirbhai Solanki v. State of Gujarat and Anr** . [2012 (10) SCALE 237]. 7. This is a case of filicide. CWs. 1 to 7, who are the eye witnesses, are the near relatives of the applicant and the deceased, and also the neighbours. In that view of the matter, the fear expressed by the prosecution that the applicant would use his liberty to subvert justice and tamper with the evidence cannot be nonchalantly brushed aside at this stage. As held by the Apex Court in **Ram Govind Upadhyay v. Sudarshan Singh** [AIR 2002 BA.6162/18 :7 : (SC) 1475], while 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. Protection cannot be termed to be absolute, but stand qualified depending upon the exigencies of the situation. Liberty is to be secured through process of law, which is administered keeping in mind the interest of the accused, the near and dear of the victim who lost her life 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. 8. The allegations are serious and the apprehension expressed by the prosecution appears to be genuine. After considering the nature of accusation and severity of punishment in case of conviction, the apprehension expressed by the prosecution with regard to the possibility of tampering with the evidence and the witnesses, and the larger interests of the public and State, I am of the view that the applicant herein is not entitled to be released on bail at this stage. 9. In the peculiar facts and circumstances and taking note of the fact that the applicant is an under trial prisoner, I :8 : BA.6162/18 direct the court below to take all earnest efforts to expedite the trial proceedings and take the matter to its logical conclusion at the earliest. This application will stand dismissed. **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** ps/18/9/18 //true copy// P.S. To Judge