Rajesh R v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945 ``` ``` BAIL APPL. NO. 10711 OF 2023 ``` ``` CRIME NO.1710/2023 OF POOJAPPURA POLICE STATION, THIRUVANANTHAPURAM ``` ## `PETITIONER:` ``` 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 DISTRICT, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.10711/2023 -:2:- Dated this the 5[th] day of January,2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), by the fourth accused in Crime No.1710/2023 of Poojappura Police Station, Thiruvananthapuram, registered against all the accused alleging them to have committed the offences punishable under Section294(b), 341, 323, 324, 302, 506(ii) and 34 of the Indian Penal Code, 1860(in short, ‘IPC’). 2. The prosecution case, in brief, is that: on 07.11.2023, at around 23.30 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 B.A.No.10711/2023 -:3:- 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 Smt. Nima T.V., the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. At any rate, Section 302 of the IPC will not stand attracted as against the petitioner. The petitioner is willing to co-operate with B.A.No.10711/2023 -:4:- the investigation. The petitioner has been in judicial custody since 12.11.2023. His continuous detention is unnecessary. The petitioner is willing to abide by any stringent condition imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor vehemently opposed the application. She made available the postmortem certificate and the report of the Investigating Officer. She contended that the antemortem injuries would reveal the gruesome murder committed by the accused. She also drew the attention of this Court to the report of the Investigating Officer revealing the complicity of the petitioner. She submitted that the investigation is still in progress and the petitioner may not be let off on bail, which would affect the the investigation. She prayed that the application be dismissed. 6. The prosecution allegation against the B.A.No.10711/2023 -:5:- petitioner is that, he along with the other accused have committed the murder of the person named Pradeep. The petitioner’s contention is that he was not present at the time of the incident. On the contrary, the Investigating Officer has stated that the petitioner was very much present at the scene of occurrence, which is evident from the CCTV visuals. Be that as it may, the prosecution allegation is that the petitioner along with other accused have murdered the deceased. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Another** [(2010) 14 SCC 496], the Hon’ble Supreme Court has observed as follows: “9. …...... It is well 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 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 B.A.No.10711/2023 -:6:- 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.” ## 8. The Hon’ble Supreme Court in **Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another** [AIR 2004 SC 1866] has held thus: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. See Ram Govind Upadhyay v. Sudarshan Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)” ## 9. In a recent decision the Hon’ble Supreme B.A.No.10711/2023 -:7:- Court in **P. Chidambaram v. Directorate of Enforcement** [2019 SCC Online SC 1549], has gone on to hold that if an applicant can satisfy the Court of the tripod test i.e., the absence of (i) flight risk (ii) tampering with the evidence and (iii) influencing the witnesses, then, the bail can be granted. 10. After bestowing my anxious consideration to the materials placed on record, and the report filed by the Investigating Officer, I notice that what has been occurred is the gruesome murder of deceased. The heinous nature of the murder, the gravity of the accusation, the severity and punishment that is likely to be imposed in the event of the conviction of the accused and the character and behaviour of the petitioner does not satisfy the conscience of this Court to order the release of the petitioner on bail at this nascent stage of investigation. As the investigation is still in progress, there is every likelihood of the B.A.No.10711/2023 -:8:- petitioner tampering with evidence and intimidating and threatening the witnesses. There are no cogent grounds or valid reasons to exercise the powers of this Court under Section 439 of the Code. The application is devoid of any merits. Resultantly, the bail application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/05.01.24 //True copy// P.A. To Judge