SREEKUTTAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 25[TH] DAY OF MARCH 2024 / 5TH CHAITHRA, 1946** **BAIL APPL. NO. 1807 OF 2024** **CRIME NO.78/2024 OF Ramankary Police Station, Alappuzha** **PETITIONER/S:** **SREEKUTTAN, AGED 24 YEARS S/O. MANIKUTTAN, BANGLANTHARA PUTHENVEEDU, MYLOM PO, KOTTARAKARA, KOLLAM DISTRICT, PIN - 691506** ## **BY ADV H.PRAVEEN (KOTTARAKARA)** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **OTHER PRESENT:** ## **ADGP SRI GRASHIOUS KURIAKOSE ,** **SR PP SRI C K SURESH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 1807 OF 2024 2 Dated this the 25[th] day of March, 2024 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 2[nd] accused in Crime No.78/2024 of the Ramankary Police Station, Alappuzha, registered against the accused (two in number), for allegedly committing the offences under Sections 323, 324 & 302 r/w Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). The petitioner was arrested on 10.02.2024. 2. The essence of the prosecution case is that: on 10.02.2024, at around 01.00 a.m., while the defacto complainant was working as a Manager in a toddy shop, there was an exchange of words between the accused and their friend named Murali (deceased), and the 2[nd] accused hit on the face of the deceased and the 1[st] accused hit him with a fire wood on the rear side of his head. The deceased suffered serious injuries, which resulted in his death. Thus, the accused have committed the above offences. BAIL APPL. NO. 1807 OF 2024 3 3. Heard; Sri. Praveen Harikumar, the learned counsel appearing for the petitioner and Sri.C.K.Suresh, the learned Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. A reading of Annexure A1 FIR would substantiate that the offence under Section 302 will not be attracted against the petitioner. It was only due to the alleged attack made by the 1[st] accused with the fire wood on the rear side of the head of the deceased that he lost his life. The petitioner has been in judicial custody since 10.02.2024, the investigation in the case is complete and recovery has been effected. Therefore, the petitioner’s further detention is unnecessary. Hence, the bail application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. The Investigating Officer has filed a bail objection report, inter-alia stating that the preliminary investigation has revealed, especially from BAIL APPL. NO. 1807 OF 2024 4 the CCTV footage, that the petitioner was actively involved in the crime. The petitioner not only slapped the deceased but also had fisted him and also kicked him. He made available the postmortem report of the deceased dated 11.02.2024 to fortify his contention that the deceased had suffered eighteen antemortem injuries, out of which the death was caused due to injury nos. 16 and 18. The eighteenth injury is an abraded contusion, 2 x 0.3 x 0.2 cm, over the right side of the face, 2 cm. outer to the outer angle of the right eye. He contended that the said injury shows that the deceased lost his life also due to the overt act alleged against the petitioner. He submitted that the investigation is only at the nascent stage. If the petitioner is let off on bail, it would certainly sabotage the investigation and there is a likelihood of him intimidating the witnesses. Hence, the application may be dismissed. 6. The prosecution allegation is that on 10.02.2024, the accused and the deceased had an BAIL APPL. NO. 1807 OF 2024 5 altercation in the toddy shop of the defacto complainant and the accused 1 and 2 in furtherance of their common intention had assaulted the deceased, who succumbed to the injuries. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.** [(2010) 14 SCC 496], the Honourable Supreme Court has 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) likelihood of the offence being repeated;_ - _(vii) reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail.”_ ## 8. Subsequently, in **Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and another** [(2005) 2 SCC 42], the Hon'ble Supreme Court has BAIL APPL. NO. 1807 OF 2024 6 observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the evidence or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the evidence by the accused. ## 9. In **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], the Hon'ble Supreme Court has held thus: _“12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a_ BAIL APPL. NO. 1807 OF 2024 7 _prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.”_ 10. It is also worth recollecting the observations made by the Hon'ble Supreme Court in **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr** [(2012) 9 SCC 446] in the following lines: _“30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the_ BAIL APPL. NO. 1807 OF 2024 8 _totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.”_ 11. On an anxious consideration of the facts, materials placed on record, the rival submissions made across the Bar and the proclamation of the law in the afore-cited precedents, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioner, the potential severity of the punishment that is likely to be imposed on him, the reasonable apprehension projected by the prosecution that there is every likelihood of the petitioner tampering with the evidence, and on prima facie finding the involvement of the petitioner in the crime, I am of the definite view that the petitioner is not entitled to be released on bail at this stage, as it would have a deleterious impact on the society and would have effect the proper and full investigation of BAIL APPL. NO. 1807 OF 2024 9 the crime. Hence, I hold that the application is meritless and is only liable to be dismissed. Resultantly, the application is dismissed. Sd/- **C.S.DIAS,JUDGE** rkc/25.03.24 BAIL APPL. NO. 1807 OF 2024 10 ## **APPENDIX OF BAIL APPL. 1807/2024** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE FIR IN CRIME NO. 78/2024 ON THE FILE OF RAMANKARI POLICE STATION, ALAPPUZHA DISTRICT DATED 10/02/2024 Annexure A2 TRUE COPY OF THE CASE DIARY OF RAMANKARI POLICE STATION IN CRIME NO. 78/2024 DATED 11/02/2024**