Rajesh R v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 12[TH] DAY OF FEBRUARY 2024 / 23RD MAGHA, 1945** **BAIL APPL. NO. 708 OF 2024** **CRIME NO.1710/2023 OF Poojappura Police Station,** **Thiruvananthapuram** ## **PETITIONER/S:** 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/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM DISTRICT, PIN - 682031 ## **OTHER PRESENT:** PP SMT NIMA JACOB THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 708 OF 2024 2 Dated this the 12[th] day of February,2024 ## **O R D E R** The petitioner, who is 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, 506(ii) and 34 of the Indian Penal Code, 1860 (in short, 'IPC'), has filed the application under Section 439 of the Code of Criminal Procedure, 1973 (‘Code’, for short). The petitioner was arrested on 12.11.2023. The petitioner had earlier filed B.A.No.10711/2023 before this Court, which was dismissed on 05.01.2024. 2. The prosecution case, in brief, is that: on 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 BAIL APPL. NO. 708 OF 2024 3 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 Jacob, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel appearing for the petitioner vehemently argued that the petitioner is totally innocent of the accusations levelled against him. There is no specific overt act alleged against the petitioner that he had committed the predicate offence under Section 302 of the IPC. The petitioner was arrested on 12.11.2023, which is more than 90 days. The investigation in the case is complete and the final report has been laid. There is change of circumstances in filing the present application. BAIL APPL. NO. 708 OF 2024 4 The petitioner is willing to abide by any stringent condition that may be imposed by this Court and also co-operate with the investigation. Hence, the application may be allowed. 5. The learned Public Prosecutor diligently opposed the application. She contended that there is a specific overt act alleged against the petitioner. She made available the postmortem certificate to substantiate the antemortem injuries that were sustained by the deceased. She also drew the attention of this Court to the report of the Investigating Officer to prove the complicity of the petitioner. She further contended that the petitioner is a history sheeter. He is the accused 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. She contended that if the petitioner is released on bail, there is every likelihood of him intimidating the witnesses and tempering with the evidence. Hence, the application may be dismissed. 6. The prosecution allegation is that on 07.11.2023 BAIL APPL. NO. 708 OF 2024 5 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 and hit the deceased on his neck, head, face and kicked 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 an admitted fact that the petitioner has criminal antecedents as submitted by the learned Public Prosecutor. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Another** [(2010) 14 SCC 496], the Honourable 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: BAIL APPL. NO. 708 OF 2024 6 - (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 accused; - (vi) likelihood of the offence being repeated; - (vii) reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted - by grant of bail.” 8. Subsequently, in **Kalyan Chandra Sarkar** ’s case, the Hon'ble Supreme Court has observed that, 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 BAIL APPL. NO. 708 OF 2024 7 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. In **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], the Hon'ble Supreme Court has held thus: “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” 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: BAIL APPL. NO. 708 OF 2024 8 “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 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.” On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar and the proclamation of the law in the afore-cited precedents, and on an appreciation of 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 reasonable apprehension projected by the prosecution that the petitioner may intimidate the witnesses and tamper with the evidence, the antecedents of the petitioner, and BAIL APPL. NO. 708 OF 2024 **==> picture [7 x 9] intentionally omitted <==** notwithstanding the fact that the petitioner has been in judicial custody for the last 90 days, and that the final report has been laid, I am not convinced and satisfied that the petitioner is to be released on bail, as it would have a deleterious impact on the society. Hence, I hold that the application is meritless and is only liable to be dismissed. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** rkc/12.02.24 BAIL APPL. NO. 708 OF 2024 10 ## **APPENDIX OF BAIL APPL. 708/2024** PETITIONER ANNEXURES |Annexure|1|TRUE COPY OF THE F.I.R IN CRIME NO:| |---|---|---| |||1710/2023 OF POOJAPPURA POLICE STATION,| |||THIRUVANANTHAPURAM DISTRICT| |Annexure|2|TRUE COPY OF THE PHOTOGRAPH OF THE| |||PETITIONER| |Annexure|4|TRUE COPY OF THE JUDGMENT OF THE HONOURABLE| |||SUPREME COURT OF INDIA IN CENTRAL BUREAU OF| |||INVESTIGATION V JAYAPRAKASH ETC REPORTED AS| |||[2022 KHC 7242]| |Annexure|5|TRUE COPY OF THE JUDGMENT OF ADDITIONAL| |||SESSIONS JUDGE-II ,THIRUVANANTHAPURAM IN| |||S.C NO:1985/2014 DATED 27/07/2022| |Annexure|6|TRUE COPY OF THE JUDGMENT OF THE HONOURABLE| |||SUPREME COURT OF INDIA IN MOHAMMAD WAJID &| |||ANR V STATE OF U.P & ORS. REPORTED AS [2023| |||LIVELAW(SC) 624]| |Annexure|7|TRUE COPY OF ORDER IN B.A NO:10711/2023| |||DATED 05/01/2024 OF THIS HONOURABLE COURT|