Shabin Ashraf v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944** ## **BAIL APPL. NO. 5493 OF 2022** **CRMP 1032/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR** **CRIME NO.280/2022 OF NILAMBUR POLICESTATION** ## **PETITIONER/1ST ACCUSED:** **SHABIN ASHRAF AGED 34 YEARS,S/O. ASHRAF, KAIPPANJERI HOUSE, MUKKATTA, NILAMBUR, MALAPPURAM DISTRICT** **BY ADVS. P.K.BABU T.ANCY** ## **RESPONDENT/STATE:** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI - 682031 2 THE STATION HOUSE OFFICER NILAMBUR POLICE STATION, KOZHIKODE - NILAMBUR - GUDALUR ROAD, NILAMBUR, MALAPPURAM DISTRICT - 679331** ## **R1 & R2 ADDL.PP SRI.P.NARAYANAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.5493 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. B.A.No. 5493 of 2022 .................................................................** Dated this the 10[th] day of August, 2022 ## **ORDER** This is an application for regular bail. 2. Petitioner is the lst accused in Crime No.280 of 2022 of Nilambur Police Station registered alleging offences punishable under Sections 365, 344, 302 and 201 read with Section 34 of the Indian Penal Code. 3. The prosecution case, in brief, is that on some day in the month of August 2019 accused Nos.1 to 7 abducted one Shaba Shareef, a resident of Rajeev Nagar, Mysore and wrongfully restrained him at the house belonging to the lst accused at Mukkatta, where he was beaten up to extract secret information from him regarding his ancestral treatment method. Later, someday in October 2020 at night accused Nos.1 and 2 along with accused Nos.8 and 9 killed the said Shaba Shareef and chopped his body into pieces and threw in the river from Seethi Haji bridge at Edavanna. Thus, the accused persons committed the aforesaid offences. 4. Petitioner submits that he is in custody from 10.05.2022 and that the petitioner is totally innocent of the allegations levelled BA No.5493 of 2022 3 against him and he is falsely implicated in the above crime due to mistaken identity and that the petitioner has no involvement whatsoever in the above crime. Even though the petitioner moved an application for bail before this court filing B.A. No. 3919 of 2022, the same was dismissed as per Annexure A2 order dated 03.06.2022. 5. The petitioner raised multiple contentions in support of his request for grant of bail. It is contended that the petitioner is a kidney failure patient and one of his kidneys has been transplanted as is evident from Annexures A3, A4, A6 and A15. It is further contended that the prosecution allegations that a person has been abducted in 2018 and restrained in a house and later in 2020 he was murdered without even the neighbours knowing about the same are unbelievable. The motive alleged i.e., the deceased was kidnapped for getting secret formula for the treatment of piles is also an unbelievable story in as much as petitioner is a businessman and has sufficient money for his livelihood. The evidence so far collected including the pendrive has no evidentiary value. It is settled law that even at the time of granting bail the court has to consider the prima facie case and the allegation levelled against the accused. It is settled law that bail is the rule and jail is the exception and that the petitioner is entitled to such a consideration. The petitioner is roamed in this case only on the basis of the statement given by the accused BA No.5493 of 2022 4 in a dacoity case i.e., Crime No. 255 of 2022 which cannot be believed at all. There were disputes between the accused in the said crime and the petitioner regarding demand of salary and sharing of profit in business. The alleged recovery if any will not connect the petitioner with the alleged crime. Petitioner also relies on the judgment of the Apex Court in **Sanjay Chandra v. CBI (2012) 1 SCC 40), Arnab Manoranjan Goswami v. The State of Maharashtra (Criminal Appeal No.742 of 2020 dated 27.11.2020), Vaman Narayan v. State of Rajasthan (2009) 2 SCC 281, Gudikanti Narasimhulu and others v. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240** and **Rampal Pithwa Rahidas and others v. State of Maharashtra (1994) Supp 2 SCC 73)** mainly contending for the position that bail is the rule and jail is the exception and further that a vague allegation by the prosecution that the accused may tamper with the evidence or intimidate the witnesses may not be a ground for refusal of bail. Petitioner has also referred to the statements given by the prosecution witnesses and submitted that there is nothing to connect the petitioner with the alleged commission of the crime. 6. Learned Public Prosecutor seriously opposed the application for bail. He further contended that the petitioner is a born criminal and the mastermind behind the commission of this case. He BA No.5493 of 2022 5 is also the prime accused in the case. The co-accused have committed the offence as per the guidance of petitioner. On 01.08.2019 A2 abducted Shaba Shareef from Vasantha Nagar, Mysore and on the way the petitioner and the accused persons (A1, A3, A4, A5, A6, A7, A8) accompanied and assisted the abduction. The petitioner(AI) arranged a room in his house at Mukkatta-Nilambur for confining Shaba Shareef. The petitioner mentally and physically tortured Shaba Shareef for extracting the treatment method for piles. On 08.10.2020 the petitioner killed Shaba Shareef as he has not disclosed the ancestral method of treatment of piles. After the commission of the offence the petitioner (A1) along with A2, A8 and A9 made preparation for disposing the body by using A2 and A9 they chopped the body into pieces and packed it in carry bags. After doing these acts, they with a view to destroy the evidence, threw the body parts into Chaliyar river from Edavanna Seethi Haji bridge. Learned public prosecutor also contended that the petitioner is involved in five other cases, the details are as below: _1. Sulthan Bathery Police Station Crime No.932 of 2014 registered under Sections 143, 144, 147, 148, 342, 367, 326 and 149 IPC._ - _2.Kunnamangalam Police Station Crime No.382 of 2018 registered under Section 506 IPC._ BA No.5493 of 2022 6 _3. Kunnamkulam Police Station Crime No.1032 of 2018 registered under Sections 279 and 304 (A) IPC._ _4.Sulthan Bathery Police Station Crime No.456 of 2022 registered under Section 5 of Explosive Substance Act and Section 9(B)(1)(b) Explosive Act._ _5. Nilambur Police Station Crime No.422 of 22 registered under Sections 120 B, 302 IPC._ It is submitted by the learned Public Prosecutor that it is upon the complaint preferred by the petitioner herein crime no. 255/2022 was registered in Nilambur Police Station on the allegation that accused therein trespassed into his house and robbed 7 lakhs rupees, 3 laptops and 3 mobile phones. Later, A1 to A6 in the said crime except A2 were taken into custody at Thiruvanathapuram and A2 in the said crime was arrested on 28.04.2022. In the confession statement of the 1st accused in the said crime, the murder of the deceased Shaba Shareef was revealed. Thereafter the present crime was registered suo motto by the SHO, Nilambur Police Station. Thereupon an enquiry was conducted and found that a crime has been registered as Crime No. 89 of 2019 at Saraswathipuram Police Station, Mysore City, Karnataka, regarding the missing of Shaba Shareef and further investigation was done in the matter. Learned public prosecutor further submitted that the investigation so far conducted reveals the BA No.5493 of 2022 7 active role of the petitioner in the alleged crime. The statements of the witnesses and the materials collected during the investigation reveal the active role of the petitioner in the alleged crime. In the investigation it is revealed that the deceased was confined in a room in the house of the petitioner herein and severely tortured. The deceased was identified by his wife from the video recordings seized by the police and that the statement of the witnesses revealed that the petitioner had contact with the deceased and had taken others for treatment. A knife was also seized from a house belonging to the petitioner at Wayanad on the basis of his confession. The investigation further revealed that accused no. 11 who is a retired Sub Inspector is the main advisor to the petitioner and he has made frequent visits to Gulf countries along with the petitioner and he also has a vital role behind the criminal acts of the petitioner. It is further submitted that A3, A7 and A11, who played a vital role in the commission of offence are yet to be apprehended and further recoveries are also to be effected. The offence committed by the petitioner is of a grave nature and executed in a very brutal manner. The petitioner is financially sound and has criminal antecedents even including commission of offence punishable under Section 302 IPC and if he is enlarged on bail at this stage, there is every chance for him to abscond and also influence the witnesses and to tamper with BA No.5493 of 2022 8 the evidence and therefore prayed that petitioner shall not be enlarged on bail. 7. It is true that though in the judgments relied on by the petitioner it has been stated that while considering the application for bail the courts are bound to consider the fact that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution of India but the Apex Court has time and again reminded about the facts to be born in mind while considering an application for bail which has been summarized in **Prasanta** ## **Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496** as follows: _“9.…………. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. 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.”_ _[See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21 : 2005 SCC (Cri)_ _1960 (2)] (SCC p. 31, para 18), Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 : 2001 SCC (Cri) 674] , and Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598]._ 8. Learned Public Prosecutor relying on the decision in **P…..v. State of Madhya Pradesh, 2022 SCC OnLine SC 552,** contended that the abovesaid parameters fixed by the Apex Court will BA No.5493 of 2022 9 ## definitely disentitle the petitioner for grant of a bail at this stage. Considering the fact that the investigation is going on and further that few other accused are yet to be apprehended and further that the petitioner is involved in five other cases of which one is a case alleging commission of offence punishable under Section 302 IPC, I feel that the apprehensions raised by the learned Public Prosecutor cannot be brushed aside. As regards the contentions raised on the basis of the serious health condition of the petitioner, while considering the earlier bail application which was disposed of as per Annexure A2 order, the Addl. Public Prosecutor has undertaken that the petitioner will be extended necessary medical treatment and further that the said undertaking was recorded by this court. It is further reminded that the petitioner shall be extended necessary medical support by the respondents whenever found necessary. In view of the above, I am of the opinion that the petitioner is not entitled for grant of bail at this stage and the application is accordingly dismissed. Sd/- **VIJU ABRAHAM JUDGE** cks