State of Kerala v. Ramesh, Ramaswami, Yeshu & Arulandan

**“CR”** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942** **Crl.MC.No.2739 OF 2020(B)** **CMP NO.537/2020 IN CP 2/2020 DATED 04-06-2020 OF TEMPORARY JUDL. FIRST CLASS MAGISTRATE COURT, NJARAKKAL** **CRIME NO.92/2020 OF Munambam Police Station , Ernakulam** ## **PETITIONER/S:** **STATE OF KERALA REPRESENTED BY THE INSPECTOR OF POLICE, KALLOORKADU POLICE STATION (INVESTIGATION OFFICER).** **BY ADVS. SENIOR PUBLIC PROSECUTOR SRI.SUMAN CHAKRAVARTHY** ## **RESPONDENT/S:** |**1**|**RAMESH**| |---|---| ||**AGED 31 YEARS**| ||**S/O.SELVARAJ, 1/63, NADUTHALA CHETTIKULAM,**| ||**THIRUNELVELI, TAMIL NADU STATION-627001.**| |**2**|**RAMASWAMI,**| ||**AGED 36 YEARS**| ||**S/O.PICHANDI, THEKKUTHERU, ARSUMUDI JUNCTION,**| ||**NAGERCOIL, TAMIL NADU STATE-629001.**| |**3**|**YESHU,**| ||**AGED 37 YEARS**| ||**S/O.THANGAMUTHU, NAINERI TEMPLE, KILATHERUVE,**| ||**VALLIYUR, TAMIL NADU STATE-627117.**| **Crl.M.C. No.2739 of 2020** 2 **4 ARULANDAN. AGED 36 YEARS S/O.JAYAPANDAYAN, NO.71/101, RAJEEV NAGAR, 2ND STREET, KUTHAIHPURAM, THOOTHUKUDI, TAMIL NADU628005.** **R1-4 BY ADV. SRI.B.RAMAN PILLAI (SR.) R1-4 BY ADV. SRI.R.ANIL R1-4 BY ADV. SRI.M.SUNILKUMAR R1-4 BY ADV. SRI.SUJESH MENON V.B. R1-4 BY ADV. SRI.A.T.ANILKUMAR R1-4 BY ADV. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) R1-4 BY ADV. SHRI.MAHESH BHANU S. R1-4 BY ADV. SMT.S.LAKSHMI SANKAR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON** **14.08.2020, THE COURT ON 26.08.2020, PASSED THE FOLLOWING:** **Crl.M.C. No.2739 of 2020** 3 **==> picture [35 x 10] intentionally omitted <==** ## **ORDER** **Dated this the 26[th] day of August, 2020** **The State of Kerala is assailing Annexure A order of the Judicial First Class Magistrate Court, Njarakkal, granting bail to accused Nos.1 to 4 in Crime No. 92 of 2020 (ATS PS Cr.31/2020/ATS) of Munambam Police Station. The brief facts, necessary for considering the challenge, are as follows:-** **On 05.03.2020, the Inspector of Police, Munambam Police Station found accused Nos 1 to 8 loitering outside a homestay on the MunambamCherai Beach Road under suspicious circumstances. The accused were taken into custody and their room and its premises searched, resulting in recovery of arms from the car of the 8[th] accused parked outside the homestay. On questioning the accused,** **Crl.M.C. No.2739 of 2020** 4 **it was revealed that the 9[th] accused, along with accused 8, 10 and others, had planned the murder of one Anas of Perumbavoor, with whom accused No.9 had rivalry and for that purpose, had brought down accused 1 to 7. Crime No. 92 of 2020 was thereupon registered at the Munambam Police Station for offences punishable under Sections 115, 118, 120B and 302 of IPC and Section 5(1) (a) read with 27(1) of the Arms Act. The accused were produced before the jurisdictional Magistrate Court and remanded to custody on 05.03.2020. Accused 9 and 10 were arrested on 21.04.2020 and 24.04.2020 respectively. Meanwhile, accused No.5 was granted bail on 16.3.2020 and accused No.6, on 25.03.2020. The investigating officer submitted final report on 01.05.2020. A report, pointing out the need for further investigation into the involvement and role of the co-conspirators named in the final report, was filed on 09.05.2020. The** **Crl.M.C. No.2739 of 2020** 5 **impugned order, granting bail to accused 1 to 4, was issued on 04.06.2020. The learned Magistrate granted bail on the premise that, the accused having been arrested on 05.03.2020 and the final report submitted on 01.05.2020, further remand of the accused would amount to punishment.** **2. Heard Sri.Suman Chakravarthy, learned Senior Public Prosecutor and Sri B.Raman Pillai, learned Senior Counsel appearing for the respondents/accused 1 to 4.** **3. The learned Senior Public Prosecutor assailed Annexure A order on the following grounds:** **(i) Accused Nos.1 to 4 are history sheeters involved in heinous crimes registered at various Police Stations in Tamil Nadu. The criminal antecedents of the accused or the possibility of their absconding after being enlarged on bail, was not taken into consideration.** **Crl.M.C. No.2739 of 2020** 6 **(ii) Applications for bail submitted by accused 1 to 4 were dismissed by the Sessions Court under Annexure B and C orders dated 08.04.2020 and 28.04.2020. Bail application of the 10[th] accused was dismissed by this Court under Annexure D order dated 02.06.2020. Dismissal of the bail applications by the Sessions Court and the High Court was not taken into account.** **(iii) The fact that names of the proposed accused was stated in the final report and that further investigation was being conducted into their role in the conspiracy was also not considered.** **4. Learned Senior Public Prosecutor relied on the decision of the Honourable Supreme Court in** _**Mahipal v. Rajesh Kumar @ Polia**_ **[2020 AIAR (CRIMINAL) 346],** _**Neeru Yadav v. State of U.P., [(2016) 15 SCC 422], State of Bihar v. Rajballav Prasad [(2017) 2 SCC 178]**_ **to buttress his** **Crl.M.C. No.2739 of 2020** 7 **contention that bail should not be granted mechanically and non-consideration of crucial aspects would render an order granting bail illegal.** **5. The learned Senior Counsel contended that the State is guilty of suppression of the material fact that, the 9[th] accused, the alleged kingpin, had obtained bail from the Magistrate Court on 05.05.2020 and the challenge against that order was repelled by the Sessions Court by Annexure R1 order. The learned Senior Counsel highlighted the fact that all other accused, of whom 5 to 7 are identically placed, were granted bail. It is contended that the maximum punishment prescribed for the offences alleged is imprisonment up to ten years, which is the relevant factor to be considered, rather than the antecedents of the accused. The need for circumspection while considering an application for cancellation of** **Crl.M.C. No.2739 of 2020** 8 **bail was highlighted. According to the learned Senior Counsel, no circumstance warranting cancellation of bail is set out in the Crl.M.C or forthcoming from the arguments.** **6. Responding to the contention regarding suppression of material fact, the learned Senior Public Prosecutor submitted that, as against Annexure R1 order, Crl.M.C No.2826 of 2020 is filed before this Court. It is submitted that unlike the respondents, accused Nos. 5 to 7 have no criminal antecedents.** **7. Annexure E reveals that the 1[st] accused is involved in 22 crimes, the 2[nd] accused in 6 crimes, the 3[rd] accused in 8 crimes and the 4[th] accused in three crimes, registered at various Police Stations in Tamil Nadu. The crimes have been registered alleging commission of offences punishable under Sections 307, 302 and other grave offences under the IPC, the Arms Act, the PoCSO** **Crl.M.C. No.2739 of 2020** 9 **Act, the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act etc. Therefore, it is indisputable that the accused are history sheeters involved in heinous crimes.** **8. The question as to whether the criminal antecedents of the accused is a relevant factor to be considered while granting bail was elaborately discussed by the Honourable Supreme Court in** _**Neeru Yadav (supra).**_ **Paragraphs 9, 15 and 18 of the judgment, which are contextually relevant, reads as follows;** _**“9. On a perusal of the aforesaid list, it is quite vivid that Respondent 2 is a history-sheeter and is involved in heinous offences. Having stated the facts and noting the nature of involvement of the accused in the crimes in question, there can be no scintilla of doubt to name him a “history-sheeter”. The question, therefore, arises whether in these circumstances, should the High Court have enlarged him on bail on the foundation of parity. xx xx xx**_ _**15. This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal**_ **Crl.M.C. No.2739 of 2020** 10 _**antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history-sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightning having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner.**_ _**18. Before parting with the case, we may repeat with profit that it is not an appeal for cancellation of bail as the cancellation is not sought because of supervening circumstances. The annulment of the order passed by the High Court is sought as many relevant factors have not been taken into consideration which includes the criminal antecedents of the accused and that makes the order a deviant one. Therefore, the inevitable result is the lancination of the impugned order [Budhpal v.State of U.P., 2014 SCC OnLine All 14815].**_ **9. In the case at hand, the learned** **Magistrate seems to have been swayed by the period of custody undergone by the accused. No doubt, the period of custody is a relevant factor for** **Crl.M.C. No.2739 of 2020** 11 **considering the entitlement for bail. But such consideration cannot be made in isolation, divested of the other relevant facts and circumstances. This position has been succinctly laid down by the Apex Court in** _**Ash Mohammad v. Shiv Raj Singh, [(2012) 9 SCC 446], wherein**_ **at paragraph 28, it is held as follows:** _**“28. Coming to the nature of crime it is perceivable that two persons came on a motorcycle and kidnapped Bihari Lal and kept him in confinement for eight days. The role of the accused is clearly stated. It is apt to note that a history-sheeter has a recorded past. The High Court, in toto, has ignored the criminal antecedents of the accused. What has weighed with the High Court is that the accused had spent seven months in custody. That may be one of the factors but that cannot be the whole and the sole factor in every case. It depends upon the nature of the offence, the manner in which it is committed and its impact on the society. We may hasten to add that when we state that the accused is a history-sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked.”**_ **Crl.M.C. No.2739 of 2020** 12 **10. In** _**Puran v. Rambilas [(2001) 6 SCC 338]**_ **, it was clarified that grant of bail in a heinous crime ignoring the materials and evidence would be one of the additional grounds on which cancellation of bail could be sought, since such an order would be against the principles of law. The legal position emerging from the precedents is that, while considering a bail application, courts should weigh all relevant factors and should keep in mind the societal concern also. The absence of such consideration would definitely enable cancellation of bail by the higher court, in exercise of the power under Section 439 (2) of Cr.P.C.** **11. The learned Magistrate omitted to consider the fact that further investigation regarding the involvement of other accused was under way. The fact that the Sessions Court, as well as this Court had rejected the bail applications submitted** **Crl.M.C. No.2739 of 2020** 13 **by A1 to A4 and A10 was also not considered. The failure on the part of the learned Magistrate to consider these relevant factors has definitely rendered the order indefensible. Even though, an order granting bail would not, under normal circumstances, be interfered with by the superior courts, there is no legal embargo against such intervention. As held in** _**Neeru Yadav**_ **, when the order granting bail is patently perverse, due to non-consideration of relevant and crucial factors, the superior courts can definitely set right the illegality.** **12. A perusal of Annexure A reveals that the respondents were granted bail, without considering or even adverting to the relevant and crucial factors. Being so, the State is justified in seeking cancellation of the bail granted to the respondents.** **Crl.M.C. No.2739 of 2020** 14 **In the result, the Crl.M.C is allowed and Annexure A order dated 04.06.2020 in C.M.P.No.537 of 2020 in C.P.No.2 of 2020 of the Judicial First Class Magistrate Court, Njarakkal is quashed.** **sd/V.G.ARUN JUDGE** **Scl/26.08.2020** **Crl.M.C. No.2739 of 2020** 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A**|**THE TRUE COPY OF THE ORDER DATED**| |---|---| ||**04.06.2020 IN CMP NO.537/2020 IN CP**| ||**NO.2/2020 IN THE COURT OF JUDICIAL**| ||**FIRST CLASS MAGISTRATE NJARAKKAL.**| |**ANNEXURE B**|**THE TRUE COPY OF THE ORDER DATED**| ||**08.04.2020 IN BAIL APPLICATION**| ||**TEMP.NO.30/2020 IN THE COURT OF**| ||**SESSIONS, ERNAKULAM.**| |**ANNEXURE C**|**TRUE COPY OF THE ORDER DATED 28.04.2020**| ||**IN TN NO.118/20 (CR. NO.92/2020 OF**| ||**MUNAMBAM POLICE STATION).**| |**ANNEXURE D**|**THE TRUE COPY OF THE ORDER DATED**| ||**02.06.2020 IN BA 2943/2020.**| |**ANNEXURE E**|**THE CRIMINAL ANTECEDENTS OF THE ACCUSED**| ||**IN CRIME NO.92/2020 OF MUNAMBAM PS,**| ||**ERNAKULAM RURAL DISTRICT.**|