Ramesh Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945 BAIL APPL. NO. 652 OF 2024** **CRIME NO.767/2018 OF Palakkad Town South Police Station, Palakkad** ## **PETITIONER:** **RAMESH KUMAR, AGED 38 YEARS KANNAPARAMBU, VALAPPAD, NATTIKA, CHAVAKKAD, THRISSUR, KERALA, PIN - 680567** **BY ADVS. SARATH BABU KOTTAKKAL ARCHANA VIJAYAN** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **sr pp smt seetha s** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.02.2024, THE COURT ON THE SAME DAY DELIVERED THE** **FOLLOWING:** **BAIL APPL. NO. 652 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 1[st] accused in Crime No.767/2018 of Palakkad Town South Police Station, registered against him, for allegedly committing the offences punishable under Sections 143, 147, 148, 324 and 307 read with 149 of the Indian Penal Code, 1860 (in short, ‘IPC’). 2. The gravamen of the application is that: the petitioner was enlarged on default bail on 15.09.2018 as per the order in Crl.M.P No.6798/2018 passed by the Judicial First Class Magistrate Court – III, Palakkad, inter alia, on the condition that the petitioner shall not commit any offence while he is on bail. However, the petitioner was arraigned as an accused in Crime Nos.2174/2021 and 2175/2021 of the Thrissur **BAIL APPL. NO. 652 OF 2024** **3** Town East Police Station, for committing similar offences. Immediately, the Station House Officer, Town South Police Station, Palakkad filed Crl.M.P.No.118/2022, to cancel the bail granted to the petitioner. The learned Magistrate, by order dated 06.07.2022, cancelled the order of bail and the petitioner was re-arrested on the very same day. The petitioner challenged the order before this Court by filing Crl.M.C No. 5819/2022. By Annexure-A1 order, this Court dismissed the application and confirmed the order of the learned Magistrate. However, this Court observed that the order cancelling bail to the petitioner will not preclude the petitioner from filing a fresh application before the Trial Court, in the event of change of circumstances. In the meantime, the investigation was completed and the final report was laid, and the case was committed to the III Additional Sessions Court, Palakkad, and numbered as S.C No.865/2019. Immediately, the **BAIL APPL. NO. 652 OF 2024** **4** petitioner filed Crl.M.C.No.5468/2024 under Section 439 of the Code before the Trial Court. But, the learned Sessions Judge, by Annexure-A2 order, dismissed the application holding that there was no change of circumstance to release the petitioner on bail and there was every likelihood of him committing a similar offence if he is released on bail. It is assailing the said order and seeking an order of bail, the instant application is filed. 3. Heard Sri.Sarath Babu Kottakkal, the learned counsel for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner has been re-arrested on 06.07.2022, which is nearly two years. The long period of incarceration itself is a change of circumstance. The petitioner's fundamental right to life guaranteed under Article 21 of the Constitution of India stands infringed. He relied on the decision of the Honourable Supreme Court in **BAIL APPL. NO. 652 OF 2024** **5** **Satender Kumar Antil v. Central Bureau of Investigation and another [2022 (4) KHC 570]** to canvas the position that the bail is the rule and jail is the exception. He submitted that the petitioner is the sole breadwinner of his family, and the family is in dire-straits. Moreover, the trial in the case is not likely to commence immediately. So, therefore, the petitioner will have to be in indefinite incarceration. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. Hence, the petitioner may be released on bail. 5. The learned Public Prosecutor vehemently opposed the application. She contended that the petitioner has consciously flouted the specific condition imposed by the learned Magistrate by committing similar offences in two crimes. It was considering the petitioner's post bail conduct that the learned Magistrate had rightly cancelled the bail. Even though the petitioner challenged the **BAIL APPL. NO. 652 OF 2024** **6** order before this Court, his application was dismissed by Annexure-A1 order. Hanging on to an observation made by this Court, the petitioner filed a fresh application before the Trial Court, which was also dismissed by Annexure-A2 order, on the specific finding that the petitioner had misused his liberty by getting involved in two other crimes. As the petitioner has no respect for the rule of law and does not keep up to his undertaking, if he is released on bail he is certain to commit similar offences. She also contented that the present application is not maintainable because the petitioner cannot challenge AnnexureA2 in a fresh application under Section 439 of the Code instead will have to challenge it independently. She prayed that the application may be dismissed. 6. When the Bail Application came up for consideration on 31.01.2024, this Court had called for a report from the Court of Session, Palakkad, **BAIL APPL. NO. 652 OF 2024** **7** to ascertain the status and reasonable time period required to dispose of SC No.865/2019. 7. The learned Sessions Judge, by communication dated 01.02.2024, has informed this Court that the charge has been framed in S.C.No.865/2019 and the case was scheduled for trial. However, as the FSL report has not been received, the case was adjourned to 09.02.2024. The Trial Court requires at least six months time to dispose of SC No.865/2019. 8. On a scrutiny of the materials placed on record, it is evident that the petitioner has indisputably got involved in two other crimes, subsequent to his release on bail in Crime No.767/2018, for allegedly committing similar offences. Therefore, the petitioner has misused the liberty that was granted to him by the learned Magistrate. 9. In **P. v. State of Madhya Pradesh & another [2022 KHC 6496)** , a three Judge Bench **BAIL APPL. NO. 652 OF 2024** **8** of the Honourable Supreme Court has categorically laid down the parameters under which a bail order can be cancelled. It is, inter alia, held that, if an accused misuses his liberty by indulging in similar/other criminal activity, certainly the bail can be cancelled. The above view has been reiterated in a plethora of judgments by the Honourable Supreme Court and this Court. 10. The fact remains that the petitioner had violated the specific condition in the bail order that he shall not get involved in any subsequent crime. Even though the petitioner challenged the order before this Court, by Annexure A1 order this Court upheld the order cancelling the bail. Nevertheless, the petitioner on the strength of a passing observation made by this Court filed a similar application before the Trial Court, which has also been dismissed by Annexure A2 order, holding that there is no change of circumstances. Immediately, thereafter, the present application is **BAIL APPL. NO. 652 OF 2024** **9** filed. There is nothing on record to prove that there is any change of circumstance. 11. In view of the petitioner's above background and on comprehending his post bail conduct, in flouting his undertaking, the present plea put forth by the petitioner does not inspire the confidence of this Court. Going by the petitioner's antecedents, there is every likelihood of him flouting the liberty, if granted to him, by treating his bail bond as a mere paper undertaking without any respect for the rule of law. An undertaking made before the Court is sacrosanct. 12. In the above conspectus, I am of the definite view that the petitioner does not deserve to be shown any leniency or mercy. Hence, I am not inclined to exercise the discretionary powers of this Court and facilitate another crime to be committed, and again go through the present exercise all over again. The precious judicial time is not meant to be wasted. Furthermore, if such a **BAIL APPL. NO. 652 OF 2024** **10** liberal approach is adopted, it would sent a wrong message to the society, that bail conditions can easily be breached with impunity. 13. On an comprehensive consideration of the matter, I hold that the bail application is meritless. Nonetheless, taking into account that the petitioner is an under trial prisoner and keeping in mind the constitutional mandate of speedy justice, I am of the view that the Trial Court can be directed to consider and dispose of SC No.865/2019 in accordance with law, in precedence to older pending matters. In the result, - (i) the bail application is dismissed; (ii) In exercise of the supervisory powers of this Court under Article 227 of the Constitution of India, I direct the Court of Additional Sessions Judge, Palakkad to pass orders to obtain the FSL report in Crime No.767/2018 urgently, and dispose of SC No.865/2019, in accordance with law and as **BAIL APPL. NO. 652 OF 2024** **11** expeditiously as possible, at any rate, within a period of four months from the date of receipt of a copy of this order. **Sd/-C.S.DIAS JUDGE** lsn