Rakesh Kumar v. State of Kerala and Others

B.A No. 968 of 2024 1 ``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 9[TH] DAY OF FEBRUARY 2024 / 20TH MAGHA, 1945 BAIL APPL. NO. 968 OF 2024 ``` ``` CRIME NO.1280/2018 OF Kottarakkara Police Station, Kollam AGAINST THE ORDER IN SC 1259/2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - VI, KOLLAM/ V ADDL.MACT ``` ## `PETITIONER/SOLE:` ``` RAKESH KUMAR AGED 33 YEARS S/O RADHAKRISHNA PILLAI, KOCHUPUTHEN VEEDU (H), NEAR SOCIETY JUNCTION, UMMANNOOR VILLAGE, KOLLAM DISTRICT, PIN - 691520 ``` ``` BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) T.S.SARATH SAMEER M NAIR SAILAKSHMI MENON JOTHISHA K.A. SHIFANA M. ``` ## `RESPONDENTS /STATE:` - `1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031` - `2 THE STATION HOUSE OFFICER KOTTARAKKARA POLICE STATION, KOLLAM DISTRICT, PIN - 691506` - `3 THE DEPUTY SUPERINTENDENT OF POLICE PUNALUR SUB DIVISION, KOLLAM DISTRICT, PIN - 691305` B.A No. 968 of 2024 2 ``` BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28) ``` ## `OTHER PRESENT:` ``` ADGP SRI GRASHIOUS KURIAKOSE ,SR PP C K SURESH ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A No. 968 of 2024 3 ## **Dated this the 9[th] Day of February, 2024** ## **O R D E R** “No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 ” emphasised the Honourable Supreme Court in **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81].” 1. The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (‘Cr. PC’, for short) by the sole accused in Crime No.1280/2018 of the Kottarakkara Police Station, Kollam, registered against him for allegedly committing the offences punishable under Sections 449, 302 and 397 of the Indian Penal Code. The petitioner has been in judicial custody since 28.05.2018. B.A No. 968 of 2024 4 2. The gravamen of the prosecution case is that on 27.05.2018, between 18.30 and 20.00 hours, the father of the de facto complainant, Baby (deceased), was found murdered in his shop in Society Mukku in Ummannoor Village. The gold chain and ring worn by the deceased and Rs.7,500/- were also seen robbed. The investigation has unveiled that it was the accused who committed the above crime by throttling the deceased when he resisted the accused from committing the robbery. 3. The materials on record reveal that the petitioner was arrested on 28.05.2018. The police, after investigation, laid Annexure A1 final report before the Judicial First-Class Magistrate Court -I, Kottarakara. The case was committed to the Court of Session, Kollam and numbered as S.C.No.1259/2018. The trial in the case has concluded, and the petitioner’s statement under Sec.313 of the Cr. PC was recorded. When the case was listed for final hearing, the Deputy Superintendent of Police ― the 3rd respondent ― filed Annexure A2 application to stop 5 the proceedings in the case, inter alia, on the grounds that further investigation is to be conducted because in the Forensic Science Laboratory (FSL) report, the nail clippings and the hair found on the deceased are not matching with that of the petitioner. Moreover, in the Sec.313 questioning of the accused, he alleged that one Unnikrishna Pillai, a native of the locality who later committed suicide, was involved in the crime. The samples of the deceased and the children of the late Unnikrishna Pillai have been forwarded for the DNA profiling tests to the Regional Chemical Laboratory. Unless the report is received, the possibility of another person being involved in the crime cannot be ruled out. The District Police Chief has authorised him to conduct further investigation. Hence, the further proceedings in S.C.No.1259/2018 may be stopped. 4. The learned Sessions Judge, by Annexure A3 order, has permitted further investigation and ordered the proceedings to be stopped. B.A No. 968 of 2024 6 5. Pursuant to the Annexure A3 order, the petitioner filed Crl. M.P.No.1657/2023, under Section 439 of the Code, to release him on bail. 6. By Annexure A4 order, the learned Sessions Judge dismissed the application on the grounds that the case was in the final hearing stage, that permission has been granted for the further investigation of the crime as the involvement of another person is evident from the FSL report and that the accused is a wandering person. 7. The petitioner has contended in the application that Annexure A 4 order defies his fundamental rights since he has spent the last five years and eight months in jail as an undertrial prisoner. There is no material to link him with the alleged murder. His parents are willing to be his sureties. Annexure A 4 order is flawed and is unjust. Hence, the present application. 8. Heard; Sri.Manu Ramanchandran, the learned counsel appearing for the petitioner and Sri. C.K. Suresh, the learned Senior Public Prosecutor. B.A No. 968 of 2024 7 9. The learned counsel for the petitioner zealously argued that the petitioner has been languishing in jail for nearly six years. The petitioner was under the bona fide belief that the case would be concluded immediately and he would be honourably acquitted. It was at the fag end of the proceedings that Annexure A2 application was filed, to stop the proceedings and for further investigation. Now, the prosecution has sent samples of the deceased and the children of the late Unnikrishna Pillai for FSL report. Neither the Court nor the Prosecution have any clue on the time period required to complete the further investigation. Undoubtedly, the proceeding will get procrastinated. Due to laches and oversight of the prosecution, the petitioner cannot be permitted to languish in prison, which is an infringement of his fundamental right to life as guaranteed under Article 21 of the Constitution of India. The learned Sessions Judge has, without any material or affording the petitioner an opportunity of being heard, dismissed B.A No. 968 of 2024 8 the bail application on the finding that the petitioner is a nomad. The petitioner has roots in Kollam district. His parents are willing to stand as his sureties. Hence, the application may be allowed. 10. Opposing the application the learned Senior Public Prosecutor drew the attention of the Court to the statement filed by the Investigating Officer explaining the circumstances that led to the filing of the Annexure A2 application. It is, inter alia, stated that because the scratch marks and hair found on the body of the deceased did not match with that of the petitioner, and the petitioner answered in his questioning under Section 313 that it was the deceased Unnikrishnan Pillai who murdered the deceased, that the investigating agency out of abundant caution has filed Annexure A2 application. The trial has been stopped and that he was awaiting the FSL report. However, the investigation will be concluded shortly. If the petitioner is released on bail, B.A No. 968 of 2024 9 he may tamper with the evidence. Hence, the application may be dismissed. 11. The chronology of events indicates that the alleged incident took place on 27.05.2018. The Investigating Officer, on being prima facie convinced that it was the petitioner who committed the murder, arrested him on 28.05.2018. The Investigating Officer laid Annexure A1 final report accusing the petitioner of having committed the murder. The case was committed to the Court of Session, Kollam. After the receipt of the FSL report, the trial was concluded. During the Sec.313 questioning, the petitioner alleged that it was one Unnikrishna Pillai who committed the murder because the nail clippings and the hair found on the body of the deceased did not match with that of the petitioner as per the FSL report. This prompted the prosecution to file Annexure A2 application, and the passing of Annexures A3 and A4 orders. Currently, the proceedings have been stopped, awaiting the FSL report. The petitioner B.A No. 968 of 2024 10 continues to languish in jail for the last five years and eight months. Neither the Court nor the Investigating Officer have given any definite time frame within which further investigation would be completed. The case seems to be proceeding now based on assumptions and speculations, with the only certitude being the petitioner’s continued incarceration. 12. In **Kadra Pehadiya and Others v. State of Bihar [(1981) 3 SCC 671],** the Honourable Supreme Court made the following observation: “How can a civilised society tolerate a legal and judicial system, which keeps a person in jail for three years without commencing his trial, but the atrocity does not end here; more is yet to come.” 13. In **P. Ramachandra Rao v. State of** **Karnataka, (2002) 4 SCC 578),** the Honourable Supreme Court has reiterated that it is the constitutional obligation of the State to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice B.A No. 968 of 2024 11 emanating from Articles 21, 19, and 14 and the Preamble of the Constitution as also from the Directive Principles of State Policy. 14. In **Mohd Muslim @ Hussain V. State (NCT of Delhi) [(2023) SCC OnLine 352],** the Hon’ble Supreme Court, while considering a bail application filed by an accused who was suffering incarceration for over seven years for allegedly committing offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter ‘NDPS Act’), observed as under: “22. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31[st] December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials. 23. The danger of unjust imprisonment, is that inmates are at risk of “prisonisation” a term described by the Kerala High Court B.A No. 968 of 2024 12 in A Convict Prisoner v. State as“a radical transformation” whereby the prisoner: “loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes.” 24. There is a further danger of the prisoner turning to crime, “as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal” (also see Donald Clemmer's ‘The Prison Community’ published in 1940). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily”. 15. In the case on hand, the petitioner has now been incarceration for almost six years. The petitioner has undisputedly cooperated with the Investigating Officer, Prison Authorities, and the Court. He does not have any criminal antecedents. Just when the petitioner B.A No. 968 of 2024 13 anticipated an end to his ordeal, on the completion of his questioning under Sec.313 and the case being posted for final hearing, the prosecution filed Annexure A2 application to stop further proceedings and for further investigation. As already observed, neither the Court nor the Investigating Officer has given any definite time frame within which the further investigation would be completed. Then, when the petitioner filed an application to release him on bail, surprisingly, the Trial Court dismissed the application by a cryptic order describing him as a wandering person. There is nothing on record to substantiate on what basis the learned Sessions Judge has arrived at the conclusion, especially when, for the last six years, the petitioner has been in judicial custody. The petitioner’s parents have offered to get their son enlarged on bail. Therefore, I am of the firm view that the reason for rejecting the application is unfounded and untenable. B.A No. 968 of 2024 14 16. In **Hussainara Khatoon’s** case, the Hon’ble Supreme Court has laid down the parameters to be considered by Courts while dealing with the question of the roots of an accused in the community. It is emphatically held that the length of the person’s residence in a community, his family types and relationships, his identity as a responsible person who can be lodged for reliability, etc., are more than sufficient to consider the roots of a person in society. 17. In **Manish Sisodia v. Central Bureau of Investigation** [2023 SCC OnLine SC 1393] the Hon’ble Supreme Court held thus: “29. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The B.A No. 968 of 2024 15 allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years”. 18. Recently, the Honourable Supreme Court in **In Re Policy Strategy for Grant of Bail** [2023 SCC OnLine SC 483] has, inter alia, directed that in cases where the undertrial or convict requests that he can furnish bail bond or sureties once released, then in an appropriate case, the Court may consider granting temporary bail for a specified period to the accused so that he can furnish bail bond or sureties and if the bail bonds are not furnished within one month from the date of grant of bail, the concerned Court may suo moto take up the case and consider whether the conditions of bail require modification/relaxation. B.A No. 968 of 2024 16 19. On an overall consideration of the facts, the material on record, the rival submissions made across the Bar and the settled law on the point, especially when the petitioner has his roots in Kollam and his relatives are prepared to stand as his sureties, I am of the definite view that the learned Sessions judge has gone wrong in rejecting the petitioner’s application on the ground that he is a nomad. The order is erroneous and wrong. In the peculiar facts and circumstances of the case on hand, I am inclined to allow the application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum, to the satisfaction of the Trial Court, which shall be subject to the following conditions: (i) The petitioner shall appear before the Station House Officer, Kottarakkara Polilce Staton on, every B.A No. 968 of 2024 17 Tuesday and Saturday between 9 a.m. and 11 a.m, until the commencement of further proceedings in S.C.No.1259/2018. He shall also appear before the Station House Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; B.A No. 968 of 2024 **==> picture [14 x 9] intentionally omitted <==** (v) The petitioner shall furnish his permanent address and his mobile phone number to the court below and the Investigating Officer; (vi) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Kollam, without the previous permission of the court below. (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (viii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. Sd/- ## **C.S.DIAS, JUDGE** mtk/09.02.24