Rajesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945** ## **BAIL APPL. NO. 10102 OF 2023** **CRIME NO.846/2023 OF MARAYAMUTTAM POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/1ST ACCUSED:** **RAJESH, AGED 41 YEARS S/O AMAL DAS, MINI HOUSE, VADAKARA DESOM, PERINKADAVILA VILLAGE, NEYYATTINAKRA, THIRUVANANTHAPURAM DISTRICT, PIN - 695121** **BY ADVS. V.G.ARUN V.JAYA RAGI(K/3390/1999) R.HARIKRISHNAN (KAMBISSERIL)(K/993/2012) NEERAJ NARAYAN(K/332/2016)** ## **RESPONDENT/STATE & COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.01.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.10102 OF 2023** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in crime No.846/2023 of the Marayamuttam Police Station, Thiruvananthapuram, registered against the accused (2 in number) for allegedly committing the offences punishable under Secs. 341, 294(b), 324, 427, 307 read with Sec.34 of the Indian Penal Code. The petitioner was arrested on 15.10.2023. 2. The gist of the prosecution case is that: around 17.00 hours on 14.10.2023, due to the previous animosity between the accused and the defacto-complainant, while the defacto-complainant was travelling on his motorcycle bearing Reg.No.KL-20-P-8322, the first accused went on his motorcycle with the second accused on the pillion, wrongfully restrained the defacto-complainant, caught hold **BAIL APPL.NO.10102 OF 2023** **3** of his shirt and asked him as to why he had complained to the police. Thereafter, the second accused took a chopper and attempted to cut on the neck of the defacto-complainant. Since he prevented it, the cut fell only on a portion of the neck and left hand. The second accused also cut on the right elbow and thigh with a chopper and inflicted injuries on the defacto-complainant and also caused damage to his mobile phone to the tune of Rs.47,500/-. Thus, the accused have committed the above offences. 3. Heard; Sri.V.G.Arun, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner vehemently argued that even going by Annexure 2 Case Diary, it can be gathered that the overt act is alleged against the second accused. It is the second accused who caused the injuries to the defacto-complainant. Moreover, the second accused has already been enlarged on bail. Applying the principles of parity, the petitioner is entitled to be released on bail. Merely **BAIL APPL.NO.10102 OF 2023** **4** because the prosecution has alleged that the petitioner has antecedents, the same is immaterial in view of the law laid down by the Hon'ble Supreme Court in **Prabhakar Tewari v. State of U.P. & Anr** . [2020 KHC 6077]. The petitioner has been in incarceration for the last more than 190 days. The investigation in the case is complete and the Final Report has been laid. Therefore, the continued detention of the petitioner is unnecessary. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor submitted that the petitioner is a history sheeter. The petitioner is involved in four crimes registered by the very same police station and one crime registered by the Neyyattinkara Police station for committing similar offences. If the petitioner is let off on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Moreover, it would have a deleterious effect on the society. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is **BAIL APPL.NO.10102 OF 2023** **5** that, he along with the second accused had waylaid the defacto-complainant and the accused inflicted grievous injuries on the defacto-complainant. It is revealed from the report filed by the investigating officer that the petitioner is an accused in five other crimes of similar nature. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Another** [(2010) 14 SCC 496], in paragraph 9, 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: (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 (viii) danger, of course, of justice being thwarted by grant of bail.” ## 8. Again, the Honourable Supreme Court in **Kalyan** **BAIL APPL.NO.10102 OF 2023** **6** ## **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. On going through the afore cited decisions, it is categorically declared by the Hon'ble Supreme Court that the character, behaviour, means, position and standing of the accused, the likelihood of him committing similar offences **BAIL APPL.NO.10102 OF 2023** **7** and a reasonable apprehension that the witnesses may be intimidated and evidence would be tampered are all relevant factors to be considered at the time of deciding a bail application. The decision relied on by the learned counsel for the petitioner in **Prabhakar Tewari'** s case was rendered in a case wherein the High Court has granted an order of bail. It is well settled in a host of decisions that the antecedents of the applicant, the likelihood of him intimidating the witnesses and also whether he would flee from justice have to be looked into before an order of bail is being granted. 10. After bestowing my anxious consideration to the materials placed on record and taking note of the nature, seriousness and gravity of the offences alleged against the petitioner, the fact that he is a history sheeter because he is involved in five crimes of similar nature, I accept the apprehension projected by the prosecution that there is every likelihood of the petitioner committing similar offences and also intimidating the witnesses and tampering with the evidence. Therefore, I am of the definite view that the **BAIL APPL.NO.10102 OF 2023** **8** petitioner is not entitled to be released on bail because there is a danger of justice being thwarted. The application is devoid of any merit and hence it is only to be dismissed. Resultantly, the application is dismissed. **Sd/-** **C.S.DIAS JUDGE** **shg**