Soofiyan and Rahul v. The Station House Officer, Tanur Police Station, Malappuram District and The State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 6[TH] DAY OF OCTOBER 2021 / 14TH ASWINA, 1943 BAIL APPL. NO. 6983 OF 2021** **AGAINST THE ORDER IN CRMC 826/2020 OF DISTRICT & SESSIONS COURT,** **MANJERI, MALAPPURAM** **CRIME NO. 458 OF 2020 OF TANUR POLICE STATION MALAPPURAM** ## **PETITIONER/ACCUSED 1 & 2:** 1 SOOFIYAN, AGED 24 YEARS S/O. MOHAMMED KOYA, ARAYANTEPURAKKAL HOUSE, TANUR, PUTHIYA KANDAPPURAM, TIRUR TALUK, MALAPPURAM DISTRICT 2 RAHUL, AGED 24 YEARS S/O. DEVAKI, KEERIYATTIL HOUSE, VELLIYAMBURAM, THEYYALA P.O., MALAPPURAM DISTRICT BY ADV T.G.RAJENDRAN ## **RESPONDENTS/COMPLAINANT & STATE:** 1 THE STATION HOUSE OFFICER TANUR POLICE STATION, MALAPPURAM DISTRICT-676 302 2 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 BY ADV SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR ## **OTHER PRESENT:** C.K.SURESH- SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON 06.10.2021 PASSED THE FOLLOWING: B.A.6983/2021 2 ## ORDER Dated this the 6[th] day of October, 2021 The petitioners who are accused Nos. 1 and 2 in Crime No. 458 of 2020 of Tanur Police Station, Malappuram District registered for the offences punishable under Sections 341, 323, 324, 307, 302, 188 and 269 of Indian Penal Code and Section 4(2)(f) read with Section 5 of the Kerala Epidemic Diseases Ordinance, 2020 have moved this application under section 439 of the code of criminal procedure for their release on bail. 2. The 1[st] petitioner/1[st] accused has been in custody since 12.06.2020. The 2[nd] petitioner/2[nd] accused is in custody since 01.06.2020. 3. The factual background of the case is as under: The accused due to their enmity towards the informant and the deceased, with the intention to cause their murder, on 29.05.2020 invited them to a place near Sheeba Hotel, Tirur violating the restrictions imposed by the Government in B.A.6983/2021 3 connection with the lock down declared across the State owing to Covid-19. When they reached there, the deceased was kicked down and then stabbed with a knife and caused fatal injuries. Thereafter, the 1[st] accused stabbed the injured/informant with a knife when the 2[nd] accused caught hold of him and thus caused fatal injuries to him also. Though they were rushed to the hospital, Shihab (the deceased) succumbed to the injuries. On getting intimation from the hospital, the statement of the informant/injured was recorded by the police and this crime was registered. 4. Heard the learned counsel for the petitioners and the learned Public Prosecutor. 5. It is submitted by the learned counsel for the petitioners that they are innocent of the allegations levelled against them. It is absolutely unnecessary to keep them in custody even after submission of the final report by the investigating agency. Hence, this application. 6. On the other hand, the learned Public Prosecutor strenuously opposed the application contending that the B.A.6983/2021 4 petitioners have committed brutal murder of the deceased and caused fatal injuries to the informant. The intention of the petitioners was to cause death of both of them. They are persons known to the petitioners previously and had close acquaintance and all of them are involved in several criminal cases including theft cases. So, the dispute was with respect to some money transaction. When the petitioners have invited the deceased and the informant to the place of occurrence, they rushed to the spot and gathered there violating the lock down restrictions imposed by the Government and then quarreled with each other and the incident had taken place in broad day light. It is also pointed out by the learned Public Prosecutor that both these petitioners are having very bad criminal antecedents. The investigation of the case has completed much before the stipulated period and now committal proceedings are pending before the jurisdictional court and at this stage if they are released on bail, that will definitely affect the trial of the case and there is every possibility to intimidate the witnesses and also to repeat similar offences because of their peculiar character. B.A.6983/2021 5 7. It is true that the petitioners are in custody since June, 2020. Now committal proceedings are pending before the jurisdictional Magistrate court as C.P. No. 47 of 2020. In the report submitted by the investigating officer, the details of all the criminal antecedents of both the petitioners have been specifically mentioned. The 1[st] petitioner is involved in five crimes registered before the Tanur Police Station and Tirur Police Stations which include cases under Section 307 of Indian Penal Code. So also, the 2[nd] petitioner is involved in 9 cases registered before the Tanur Police Station, Parappanangadi Police Station and Tirurangadi Police Station. The registration of the said crimes against these petitioners will itself reveal the nature and character of the petitioners. Their criminal antecedents are so clear from the report submitted by the investigating officer. 8. The Supreme Court has laid down the principles governing grant of bail in **Prasanta Kumar Sarkar** v. **Ashis Chatterjee and Another** [(2010) 14 SCC 496]. In paragraph 9, it is stated as follows: B.A.6983/2021 6 “ 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, behavior, means, position and standing of the accused; _(vi) likelihood_ of the offence being repeated; _(vii)_ reasonable apprehension of the witnesses being influenced; and _(vii)_ danger, of course, of justice being thwarted by grant of bail.” Again the Supreme Court, after reiterating the above said decision, in **Mahipal** v. **Rajesh Kumar Alias Polia and** ## **Another** [(2020) 2 SCC 118] observed as follows: “14. …..... The Court is required to factor, amongst other other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings B.A.6983/2021 7 of the trial in any manner or evading the course of justice. The provision for being released on bail drawn an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a caseby-case basis. …......” 9. As mentioned earlier, the involvement of the petitioners in the cases referred above itself would show that if they are released on bail, there is every possibility of indulging in criminal activities because of their disorderly behaviour. The possibility to intimidate the witnesses to the prosecution also cannot be ruled out. No doubt, the nature and gravity of the offences alleged against them are grave and serious. The fatal injuries caused by them with sharp edged weapons would indicate that they have the knowledge that assault with such weapons would be fatal resulting instantaneous death and they had attacked the informant and the deceased with common intention to eliminate B.A.6983/2021 8 them. It is well settled that while granting bail, the interest of victim as well as society have also to be taken into consideration, with the interest of accused. Considering all these facts, I find that granting of bail at this stage will definitely give an opportunity to the petitioners to intimidate the witnesses to the prosecution and thus to tamper with the case. Since charge sheet has been submitted within time and now the case is pending for committal proceedings, without much delay the case could be disposed of by the court concerned. Considering all these facts, I am not inclined to accept the request of the learned counsel for the petitioners for their release on bail. Therefore, this application for bail stands dismissed. Sd/- SHIRCY V JUDGE sb