Santosh Kumar P.P. and others v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 18TH DAY OF JUNE 2018 / 28TH JYAISHTA, 1940 Bail Appl..No. 3804 of 2018 CRIME NO. 321/2018 OF VARAPPUZHA POLICE STATION , ERNAKULAM PETITIONERS/ACCUSED NO. 1 TO 3 1 SANTHOSH KUMAR P.P., AGED 34 YEARS, S/O. POULOSE, PALELIL HOUSE, VALARA POST, NEAR IRON BRIDGE, ADIMALI, IDUKKI DISTRICT. 2 JITHIN RAJ, AGED 31 YEARS, S/O. E.K. RAJU, ELAVAMKUDY HOUSE, VALAYAMCHIRANGARA POST, VENGOLA KARA, KUNNATHUNADU, ERNAKULAM DISTRICT. 3 SUMESH M.S., AGED 34 YEARS, S/O. SREEDHARAN, MALIEKKAL PADI, MALAYATOOR VILLAGE, SEBIYUR, ALUVA TALUK, ERNAKULAM DISTRICT. BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE RESPONDENT/STATE: STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. (CRIME NO. 321/2018 OF VARAPPUZHA POLICE STATION, ERNAKULAM DISTRICT) R BY DIRECTOR GENERAL OF PROSECUTION, MR.SUMAN CHAKRAVARTHI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18-06-2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **RAJA VIJAYARAGHAVAN V., J ------------------------------B.A. No.3804 of 2018 ------------------------------Dated this the18[th ] day of June, 2018** ## **O R D E R ~~~~~~** 1. This application is filed under Section 439 of the Code of Criminal Procedure. 2. The applicants herein are Civil Police Officers and they have been arrayed as the accused Nos. 1 to 3 in Crime No. 321 of 2010 of the Varappuzha Police Station for having committed offence punishable under Sections 323, 342 r/w. Section 302 of the IPC. 3. Skeletal facts for the disposal of this application are as follows:- - a) On 6.4.2018 at about 7 pm, Crime No.312 of 2018 was registered at the Varappuzha Police Station against one Vibin , 7 named persons, and 8 others who could be identified at sight under Sections 143, 147, 148, 323, 324, 450, 427, 307, 202, 212, 120B r/w Section 149 of the IPC and under section 27 (1) of Arms Act for their act of trespassing into the house of one Vineesh, S/o **BA.3804 of 2018** **-:2:-** Vasudevan and for attempting to murder him. Though deceased Sreejith was not named in the FIR , apparently he was also suspected of having involvement by the officer in charge of the investigation. b) Later in the day, the father of the de facto complainant in Crime No.312 of 2018 committed suicide by hanging. As a series of grave incidents were reported in the area , the police sprung into action and it appears that it was decided to take into custody the persons who are suspects. c) The applicants herein are Civil Police Officers. During the relevant period, they were members of a squad strategically called as Rural Tiger Force (RTF). Main objective in constituting the said squad by the District Police Chief, Ernakulam was prevention of crimes. d) They were allegedly asked to find the whereabouts of the accused involved in the above crimes and to take the accused in custody. e) They arrived at the house of Sreejith in the late hours on 6.4.2018. Sreejith was deep asleep. He was woken **BA.3804 of 2018** **-:3:-** up and was taken into police custody at about 22.05 Hrs on 06.04.2018. f) The police control room was informed and they were requested to send a vehicle to transport Sreejith and his brother, who was also taken into custody to the Station. While Sreejith was being escorted to the Police Jeep through the pathway leading to the road, the applicants are alleged to have fisted and kicked him. One of such kicks allegedly landed on his abdomen. g) Sreejith was then handed over by the applicants to a police team headed by SHO, Aluva West Police Station, Ernakulam Rural District and he was taken to Varapuzha Police Station at about 23.00 Hrs on 06.04.2018 in a police Jeep. h) Several of the co-accused in Crime No.312 of 2018 were also rounded up and were brought to the Station. i) In the early hours of 7.4.2018, the Sub Inspector of Police Varappuzha, who was summoned by the higher officers entered the cell and he is also alleged to have kicked him on his abdomen, thus aggravating the **BA.3804 of 2018** **-:4:-** injuries already sustained. j) When the condition of Sreejith deteriorated, he was taken to the Medical Center at Varappuzha at 8.45 a.m. on 7.4.2018. Records show that he was then taken to the Taluk Head Quarters Hospital, Paravur at 2.50 p.m. and was provided with medical aid. On the next day, when he started vomiting and complained of intense abdominal pain, he was taken to the THQ Hospital, North Paravur from where he was referred to the Medical College Hospital Kalamasserry and was admitted there at 1.50 am. When his condition worsened, Sreejith was taken to the Aster Medicity Hospital, Cheranalloor and was admitted there at 3.54 a.m on 8.4.2018. While undergoing treatment, Sreejith breathed his last at 6.56 p.m on 9.4.2018. The cause of injury was blunt trauma sustained to the abdomen and its complications. k) Crime No. 321 of 2018 was registered on 9.4.2018 at 21.40 hours under section 174 of the Cr.P.C. on the strength of the death information issued by Dr. Suresh G. Nair of Aster Medicity, Cheranalloor . **BA.3804 of 2018** ## **-:5:-** l) In the course of investigation when it was revealed that it was a case of murder, report was submitted before court incorporating Sections 323, 342 and 302 of the IPC. 4. The applicants were arrested on 18.4.2018 for their involvement in the crime and they have been in custody since then. 5. The learned counsel appearing for the applicants submitted that the applicants are innocent. They have been roped in to save the skin of the actual assailants. The applicants herein had taken Sreejith in custody as directed by the Superior Officers and they had no occasion to assault him. The situation in the area was very tense. The applicants had exercised much restraint to ensure that they did not precipitate the uneasy situation that was prevailing in the area. The police Jeep had arrived at the spot immediately and the custody of the persons who were taken in custody was handed over to the SHO, Aluva West Police Station. According to the learned counsel, Sreejith was admitted in various hospitals and at no point of time **BA.3804 of 2018** **-:6:-** did he disclose that the applicants herein had manhandled him. The injury sustained by him earlier was aggravated due to want of proper medical care. The alleged history noted in the report of the Aster Medicity Hospital would not show the correct picture as according to the learned counsel, the same was manipulated after the death of Sreejith. Alternatively, it is submitted that the prosecution has no case that the applicants had attacked him with weapons or that they were aware that he was suffering from any internal injuries. The learned counsel urged that the applicants are police officers with no previous antecedents and they were merely discharging the duties allotted to them. Their further detention in the facts and circumstances is quite uncalled for is the submission. 6. The learned Public Prosecutor has very strenuously opposed the prayer. He has made available the case diary and has also placed on record the statement of the Investigating Officer. 7. It was submitted that the investigation in the above crime is being conducted by a Special Investigating Team led by **BA.3804 of 2018** **-:7:-** an Inspector General of Police. According to the learned Public Prosecutor, custodial violence is the most grave form of violence and the perpetrators being law enforcement officers, their acts should be viewed with the seriousness that it deserves. The near relatives of the deceased who were present when the deceased was taken in custody had occasion to witness the manner in which he was brutally assaulted by the applicants. The deceased was with the applicants for about half an hour and during this period the applicants had beaten him with their hands and kicked on his abdomen. Sreejith had sustained blunt trauma to his internal organs due to the brutal onslaught of the applicants. As his condition worsened from day-to-day he was finally taken to Aster Medicity Hospital and it was noticed that he had sustained serious injury on his small intestine. Despite all efforts, his life could not be saved. The witnesses have all stated in clear terms about the role of the applicants. The statement of the prime witnesses are corroborated by the medical records as well. The cause of death was blunt trauma to the stomach and its subsequent complications - peritonitis, jejunal perforations, septicemia **BA.3804 of 2018** **-:8:-** and consequently multi organ failue. The proximal cause was the injuries inflicted by the applicants. In the police intimation form prepared by the Medical Officer of Aster Medicity hospital it has been unequivocally stated that two unidentifiable police officers in civil cloths had assaulted the deceased just outside his house using their hands and feet on 06.04.20187 at 08.30 P.M. It is further urged that in the course of investigation as many as 9 persons have been arrayed as accused and all except the applicants have been enlarged on bail by various courts including this Court. The police custody of the applicants was obtained and the investigation is proceeding at a fast pace. Their release on bail at this stage will send a false signal to the society is the submission fervently advanced by the learned public prosecutor. 8. I have considered the submissions advanced and have gone through the case diary which was made available. It is by now settled that at the time of consideration of bail application, this Court is not expected to discuss the merits or demerits of the evidence collected against the accused. A detailed examination of the evidence or an elaborate **BA.3804 of 2018** **-:9:-** documentation of the merits of the case is also to be avoided. The specific allegation against the applicants herein is that they had manhandled the deceased immediately after he was taken into custody for his alleged involvement in a crime registered earlier at the Varappuzha Police Station. The prosecution witnesses state that the applicants had clouted the deceased with their hands and when he had fallen down, they had kicked him on his abdomen. It is also alleged that Sreejith was assaulted while he was in police lockup by the 4[th] accused, who is the SI of the Varappuzha Police Station. Though the deceased was taken to various local hospitals, it appears that they were not able to detect the internal injuries sustained by the deceased due to the blunt trauma sustained by him on his abdomen. It appears from the reports of Aster Medicity that the internal injuries suffered by the deceased led to subsequent complications. I have also had the advantage of going through the report submitted by the Expert Committee to the DME on the death of Sri.Sreejith and also the findings arrived at by them. **BA.3804 of 2018** ## **-:10:-** 9. It is well settled that the matters to be considered in 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 charge; - (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 tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see **Prahlad Singh Bhati v. NCT, Delhi** (2001 (4) SCC 280] ; **Gurcharan Singh v. State** (Delhi Admn.)(1978 (1) SCC 118)]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the **BA.3804 of 2018** ## **-:11:-** accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. ## 10. In **Kalyan Chandra Sarkar v. Rajesh Ranjan** (2004 (7) SCC 528 : 2004 SCC (Cri) 1977) , the Apex Court had 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: **BA.3804 of 2018** **-:12:-** (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 with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge.” 11. One cannot lose sight of the position that that the object of bail is to secure the appearance of the accused person at his trial. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. It would be quite contrary to **BA.3804 of 2018** **-:13:-** the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un - convicted person for the purpose of giving him a taste of imprisonment as a lesson. (See **Sanjay Chandra V CBI** [2011 (1) SCC 40] ). 12. In the case on hand, the applicants are civil police officers. The bail application is opposed primarily on the ground that more evidence need to be collected and the applicants, being police officials, would be in a position to influence the witnesses. I am not impressed with the said submission. Appropriate conditions can be imposed to **BA.3804 of 2018** **-:14:-** safteguard the interest of the prosecution. The case diary shows that much headway has been achieved in the investigation and it has reached the final stages. 13. Having considered the nature of the allegations, the nature of injuries allegedly inflicted, the mode in which the injuries were inflicted, the reasonable probability of the applicants making themselves scarce, the character and antecedents of the accused, the likelihood of them repeating the commission of the offense, the reasonable possibility of the applicants influencing the witnesses and all other relevant aspects I am of the view that the applicants can now be released on bail by imposing appropriate conditions. 14. In the result, this application will stand allowed. The applicants shall be released on bail on their executing a bond for a sum of Rs.2,00,000/- (Rupees Two lakhs only) each with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction. However, the above order shall be subject to the following conditions: 1. They shall appear before the Investigating Officer on all Mondays and Fridays between 10 AM and 1 PM, for 3 months or till final report is filed, whichever is earlier. **BA.3804 of 2018** ## **-:15:-** 2. They shall not intimidate or attempt to influence the witnesses; nor shall they tamper with the evidence. 3. They shall not enter Ernakulam District for a period of three months, except for complying with the conditions in this order or for appearing before the jurisdictional courts. 4. They shall not commit any offence while they are on bail. 5. The applicants shall not leave India without the permission of the Court and if having passport, shall deposit the same before the Trial Court within a week; If release of the passport is required at a later period, the applicants shall be at liberty to move appropriate application before the Court having jurisdiction. In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. Sd/- ## **RAJA VIJAYARAGHAVAN. V., JUDGE** ps/18/6/2018 //True copy// PS to Judge