Rajesh R v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 2[ND] DAY OF APRIL 2024 / 13TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2468 OF 2024 ``` ``` CRIME NO.1710/2023 OF POOJAPPURA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ## **`PETITIONER/4TH ACCUSED:`** ``` RAJESH R AGED 35 YEARS S/O A.RAJAN T.C 49/690,THAZATHUKUNNIL VEEDU,POOJAPPURA P.O THIRUVANANTHAPURAM DISTRICT, PIN - 695012 ``` ``` BY ADV S.NIKHIL SANKAR ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PUBLIC PROSECUTOR SRI C S HRITHWIK`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A No.2468 of 2024 ``` 2 Dated this the 2[nd ] day of April,2024 ## **O R D E R** This is the third application filed by the 4[th] accused in Crime No.1710/2023 of the Poojappura Police Station, Thiruvananthapuram, registered against the accused (six in number) for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 302 and 506(ii) r/w 34 of the Indian Penal Code, 1860 (in short, 'IPC'). The petitioner had earlier filed B.A.Nos.10711/2023 and 708/2024 under Section 439 of the Code of Criminal Procedure, 1973 (‘Code’, for short), which were dismissed by this Court, by Annexures 7 and 8 orders on 5.1.2024 and 12.2.2024, respectively. The petitioner was arrested on 12.11.2023. 2. The prosecution case, in brief, is that: on ``` B.A No.2468 of 2024 ``` 3 07.11.2023, at around 23.45 hours, the de facto complainant’s brother named, ‘Pradeep’(deceased) shouted at the second accused at the parking area of Poojappura ‘Sabari Bar’. Out of the said animosity, the accused Nos.1 to 6 formed an unlawful assembly in ten minutes and when the de facto complainant and deceased were returning to the Hill View Hotel, where they were residing, the accused Nos.1 to 6 followed them and restricted their path and the accused stabbed the de facto complainant and the deceased. The fourth accused along with other accused had brutally beaten and fisted the deceased on his neck, head, face and kicked his abdomen and, then, the first accused murdered the deceased. Thus, the accused have committed the above offences. 3. Heard; Sri. S. Nikhil Sankar, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik, the learned Public Prosecutor. 4. The learned counsel appearing for the ``` B.A No.2468 of 2024 ``` 4 petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. There is no specific overt act alleged against the petitioner to have committed the predicate offence under Section 302 of the IPC. The petitioner was arrested on 12.11.2023,. The investigation in the case is complete and the final report has been laid. Now, the case has been committed to the Court of Session, which is a change of circumstances, which made the petitioner to file the present application. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. He contended that there is no change of circumstances after the passing of Annexure 8 order warranting the petitioner to file a fresh application. The repeated filing of the applications is a sheer abuse of process of law. ``` B.A No.2468 of 2024 ``` 5 Moreover, the petitioner is a person with criminal antecedents, since he is involved in Crime Nos.393/2014, 554/2014, 1266/2018 and 756/2023, all of the Poojappura Police Station registered against him for allegedly committing the offences under the Indian Penal Code. If the petitioner is released on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. By Annexures 7 and 8 orders, this Court has rightly dismissed the earlier applications on prima facie finding the petitioner’s active involvement in the crime. Moreover, merely because the petitioner is under judicial custody for a particular period of time, does not entitle him to be released on bail as observed in **Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another** [(2004) 7 SCC 528]. The application is meritless and only liable to be dismissed. 6. The prosecution allegation is that on ``` B.A No.2468 of 2024 ``` 6 07.11.2023 at around 23.45 hours, the accused 1 to 6 formed an unlawful assembly and in furtherance of their common intention to murder the deceased, they followed him and the accused 1 to 6 brutally manhandled and hit the deceased on his neck, head, face and kicked him on his abdomen, and then the 1[st] accused stabbed the deceased to death. On going through the materials placed on record, it is evident that there is a specific overt act alleged against the petitioner. The petitioner has contended that he was not present at the scene of occurrence. On the contrary, the Investigating Officer has categorically stated that the CCTV visuals clearly reveal that the petitioner was at the scene of occurrence. The question is a matter of trial. It is undisputed that the petitioner has criminal antecedents since he is involved in four other crimes. 7.In **Chidambaram P. v. Central Bureau of Investigation** [2019 KHC 7072 (SC)] the ``` B.A No.2468 of 2024 ``` 7 ## Honourable Supreme Court has observed thus:- 22. The jurisdiction to grant bail has to be exercised on the basis of the well - settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail: - (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another 2001 (4) SCC 280). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. xxxxxxxxxxx” ## 8. Similarly, in **Kalyan Chandra Sarkar** ’s case, the Hon'ble Supreme Court has observed that, ``` B.A No.2468 of 2024 ``` 8 while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the witnesses by the accused. 9. Likewise, in **Gurucharan Singh Ors. V. State (Delhi Administration)** [(1978) 1 SCC 118], ``` B.A No.2468 of 2024 ``` 9 the Honourable Supreme Court has held that while considering an application of bail, it is necessary to consider the nature and seriousness of the offence; the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State, and similar factors which may be relevant in the facts and circumstances of the case. 10. It is also worth recollecting the observations made by the Hon'ble Supreme Court in **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr** [(2012) 9 SCC 446] in the following lines: “30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing ``` B.A No.2468 of 2024 ``` 10 conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.” After bestowing my anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, and the proclamation of the law in the afore-cited decisions, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, the potential severity of the punishment that is likely to be imposed on him, the petitioner is a person with criminal antecedents, since he is involved in four other crimes and the reasonable apprehension projected by the prosecution that there is a likelihood of the petitioner tampering with the evidence and intimidating the witnesses, notwithstanding the fact ``` B.A No.2468 of 2024 ``` **==> picture [13 x 9] intentionally omitted <==** that the case has already been committed to the Court of Session, I am of the firm view that the petitioner is not entitled to be released on bail, because it would have a deleterious impact on the society and justice will be thwarted. The application is meritless and is only to be rejected. Resultantly, the application is dismissed. SD/- ## **C.S.DIAS,JUDGE** rmm/2/4/2024