Sanal v. State (Bail Application)

B.A.No.8492 of 2021 1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V. MONDAY, THE 28[TH] DAY OF FEBRUARY 2022 / 9TH PHALGUNA, 1943** **BAIL APPL. NO. 8492 OF 2021** **CRIME NO.1225 OF 2020 OF ANTHIKKAD POLICE STATION)** ## **PETITIONER/1ST ACCUSED** SANAL AGED 22 YEARS S/O. SADHANATHAN , PALLIYIL HOUSE, MUTTICHUR DESOM, PADIYAM VILLAGE, THRISSUR DISTRICT 680 641 BY ADVS. P.K.VARGHESE P.S.ANISHAD K.R.ARUN KRISHNAN SANJANA RACHEL JOSE ## **RESPONDENT/STATE OF KERALA** THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM 682 031 BY ADVS. SHRI.SAJJU.S., SENIOR G.P. DIRECTOR GENERAL OF PROSECUTION SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.02.2022, THE COURT ON 28.2.2022 DELIVERED THE FOLLOWING: B.A.No.8492 of 2021 2 ## **ORDER** The 1[st] accused in S.C.No.799 of 2021 pending before the III Addl. Sessions Court, Thrissur has moved this application seeking regular bail. The petitioner is undergoing incarceration since 12.10.2020 in connection with Crime No.1225 of 2020 of Anthikkad police station registered for the offences punishable under Sections 341, 302, 120B, 392, 506(ii), 212, 109, 201 read with Section 34 of IPC and Section 27 of the Arms Act. 2. The circumstances which led to the registration of the prosecution case is stated briefly as follows. Pursuant to the criminal conspiracy hatched between the accused under the leadership of accused No.7, on 10.10.2020 at about 11.55 a.m the accused 1 to 6 came in a motor car near to Mangattukara Vattukulam temple with the intention to commit murder of one Nidhil (the brother of the defacto complainant) and waited for him. While Nidhil was proceeding in his car the accused rammed, their car towards his car and then the accused armed with deadly weapons ran towards him and dragged him out of the car and inflicted several injuries on his body with the intention to murder him. They were having sword B.A.No.8492 of 2021 3 knife, axe etc. and all the accused together had inflicted fatal injuries on him and fled away from the place of occurrence leaving the injured on the public road. Though the injured was rushed to the hospital he succumbed to the injuries and thereby the accused committed the aforesaid offences. 3 Heard the learned counsel for the petitioner as well the learned Public Prosecutor. 4. The learned counsel for the petitioner submits that the petitioner is a young man aged only 22 years. He is totally innocent of the allegations levelled against him. He is suffering from cancer which requires immediate and special medication. Even now he is undergoing treatment in the oncology department attached to the medical college as his disease was identified as cancer. But he is not getting the regular treatment. He is unable to walk properly and his physical condition is deteriorating day by day. Hence, this application. 5. The learned Public Prosecutor opposed the application raising various contentions. 6. Firstly, it was contended that this crime occurred as a result of a gang war between two rival groups operating in Anthikkad area headed by one Sumesh in one group and by one Smith in the other group. The members in both the groups are youngsters indulged in B.A.No.8492 of 2021 4 various criminal and illegal activities in the locality. Due to the gang rivalry they often confront with each other affecting the law and order situation in the area. While so, one Adarsh a member of the gang of Smith was brutally murdered by the other group headed by Sumesh on 2.7.2020. Crime No.964 of 2020 was registered against nine accused and they were arrested. The deceased Nidhil in this case is an accused in Crime No.964 of 2020. He was released on bail and to comply with the bail conditions he had to appear before the police on certain days. Thus on the fateful day he came to the police station. After appearing before the police while he was coming back, he was attacked and murdered. The murder was a premeditated one due to their enmity towards him for having killed Adarsh. So as a reply to the murder of Adarsh they made preparation after hatching criminal conspiracy on several days with all the accused, thirteen in number and thus committed the offences. 7. Secondly, it is contended that though the investigation of the case is over and it is pending trial, if the petitioner is released on bail there is every chance for retaliation. That will definitely affect the law and order situation. Moreover, the life of the witnesses to the prosecution are also under threat as there is every possibility to intimidate them if released on bail. The possibility of absconding also cannot be ruled out. Thirdly, the petitioner is having very bad B.A.No.8492 of 2021 5 criminal antecedents as he is involved in thirteen cases registered before various police stations in Thrissur District. With these contentions this bail application is strenuously opposed by the learned public prosecutor. 8. It is true that this petitioner is aged only 22 years and is ailing. The deceased in this case was also an youngster aged only 28 years. His postmortem certificate would reveal that he had sustained 69 antemortem injuries in the incident. The prosecution case itself is that all the six accused persons who participated in committing the offence were armed with deadly weapons such as axes, sword, knife etc. In a most brutal manner he was attacked by the petitioner and his group. Grave and serious injuries were inflicted on him. The nature of the injuries caused to him as revealed from the postmortem certificate, itself is sufficient to reflect the serious nature and gravity of the offences committed by them. Extensive injuries were caused by all of them with deadly weapons while the deceased was unarmed. 9. The prosecution case itself is that the accused after committing murder of the deceased escaped from the spot in a car and motor cycle which happened to pass through the road at that point of time. The alleged incident had happened in the broad day light. After inflicting injuries on the deceased the accused attempted B.A.No.8492 of 2021 6 to escape from the place of occurrence in the car which they came to the spot. But due to some mechanical defect they could not start their vehicle and so they intercepted a car and motor cycle and forcefully took its control and escaped from the scene of occurrence with the blood-soaked weapons. Other witnesses are also cited by the prosecution to prove the case. Most of the witnesses are ordinary people. The character and the criminal antecedents of the petitioner would support the apprehension expressed by the prosecution that there is every possibility to threaten and intimidate them to abstain from speaking truth before the court. Moreover, it is revealed from the records that the clash between the two gangs, quite often was on account of their enemity and in one such incident Adarsh was murdered. Retaliation from the other group of gangsters will definitely be there due to existing fraud. Moreover, the petitioner is involved in thirteen cases, which includes Sec.307, 308 of IPC, Arms Act, Explosive Substances Act, etc. Thirteen crimes have been registered against him before various police stations and the details of the case have been furnished by the Public Prosecutor while objecting the bail application. (Crime Nos.1500/2015, 1807/2015, 951/2016, 709/2017, 755/2017, 710/2017, 421/2019, 422/2019, 424/2019, 495/2019 and 161/2020 of Anthikkad police station, Crime No.662/2018 of Valappad police station and Crime B.A.No.8492 of 2021 7 ## No.809/2019 of Aroor police station.) 10. As mentioned earlier, the case is pending for trial before the court below. Granting of bail to an accused especially in brutal murder cases are subject to certain important conditions. The Supreme Court has laid down the basic principles governing grant of bail in a plethora of decisions. In **Prasanta Kumar Sarkar** v. **Ashis Chatterjee and Another** [(2010) 14 SCC 496], in paragraph 9, it is 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)_ likeliood 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.” ## In **Kalyan Chandra Sarkar v. Rajesh Ranjan alias Pappu** ## **Yadav and another** [AIR 2004 SC 1866] it is held by the Apex Court as follows: - “11. The law in regard to grant or refusal of bail is very well B.A.No.8492 of 2021 8 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 nonapplication 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)” 11. Though an extensive evaluation of the facts involved in the case is not expected while considering a bail application as the trial has to commence in the case, the court cannot ignore and shut its eyes towards the glaring circumstances involved. The brutal murder was as a result of the retaliation of a murder which happened just three months back. So if this petitioner is released on bail, the possibility of retaliation by the rival group cannot be ruled out as the records would reveal that the petitioner as well the co-accused are persons having no respect towards law and they are gangsters B.A.No.8492 of 2021 9 having no hesitation to indulge in criminal activities and thus to shatter the peaceful atmosphere in the locality. The mere fact that trial has not been commenced and there is possibility to get the case delayed are not sufficient grounds to enlarge the petitioner on bail. When the petitioner and his gang are having the capacity to tamper with the evidence and to intimidate the witnesses to the prosecution, the safety of the witnesses and public interest have much importance when it is compared with the liberty of the accused. Materials at this stage indicates that they all ganged up to commit very serious offences, motivated on account of enmity to wreck vengeance upon on the rival group. Such gang was committed by the petitioner along with his gang members led to the death of an youngster, in broad day light that too on public road. Prima facie there are reasonable grounds to find the active participation of the petitioner in the alleged crime. 12. Taking into account of all these facts and circumstances , I find that this petitioner is not entitled to be released on bail at this stage. Of-course he had undergone a surgery and needs the support of clutches for walking. But medical records are not sufficient to conclude that he requires urgent treatment and that is not provided to him. However, the Superintendent of the jail is directed to provide adequate treatment to him from the jail and from outside B.A.No.8492 of 2021 10 center also as and when required. Therefore, I find that the petitioner is not entitled to be enlarged on bail at this stage just considering the period of incarceration or his ailment. The learned Sessions Judge shall endeavor to dispose of the case at the earliest considering the period of incarceration undergone by this petitioner in custody. Dismissed. Sd/- SHIRCY V JUDGE smm