Subash v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942** **Bail Appl..No.157 OF 2021** **CRIME NO.3502/2020 OF Town East Police Station, Thrissur -now numbered as Crime 208/CB/TSR/R/2020, Crime Branch, Thrissur** ## **PETITIONER/S:** **SUBASH AGED 24 YEARS S/O SUNDARAN, VYAPARICHALLA HOUSE, MADATHUR MENMENI, KOLLAMKODE VILLAGE PALAKKAD 678506 BY ADVS. SMT.SANJANA RACHEL JOSE SRI.P.K.VARGHESE** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031** **R1 BY PUBLIC PROSECUTOR R1 BY DIRECTOR GENERAL OF PROSECUTION SRI.S.SAJJU-SR PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Bail Appl..No.157 OF 2021 2 ## **ORDER** **Dated this the 18th day of January 2021** Application for regular bail under Section 439 Cr.P.C. The applicant is the 5[th] accused in Crime 3502/2020 of Town East Police Station, Thrissur and Crime 208/CB/TSR/R/2020 of Crime Branch, Thrissur, since the investigation has now been taken over by the Crime Branch. The applicant has allegedly committed offences punishable under Sections 302, 341, 323, 324, 325 and 326 r/w Section 34 of the IPC. The accused Nos.1 to 5 are the Deputy Prison Officers and accused 2 to 4 are the Assistant Prison Officers, while the 6[th] accused is the Assistant Jail Superintendent of District Jail, Thrissur. 2. The prosecution case, in brief, is that the deceased was remanded in connection with Crime No.3490/2020 of Thrissur East Police Station for Bail Appl..No.157 OF 2021 3 offences under the N.D.P.S Act to the District Jail Thrissur. Since he was undergoing treatment for Covid, he was detained in the Covid First-Line Treatment Centre, Ambilikala hostel in Thrissur. The specific allegation is that the accused including the applicant had, between 9.00 p.m on 29.09.2020 and 6.00 p.m on 30.09.2020 brutally assaulted the remand prisoner inside the Ambilikala Covid First-Line Treatment Center by fisting, kicking, and beating him with a lathi. He became seriously ill and was therefore taken to the Thrissur Medical College hospital on 01.10.2020 and he succumbed to his injuries by about 06.45 a.m on that day. The applicant contends that he is innocent. He was not on duty on the 29/09/2020. He joined duty only on the 30/09/2020. Hence the allegations are apparently untrue. He is young and has no criminal antecedents and hence seeks bail. Bail Appl..No.157 OF 2021 4 3. Heard the learned counsel for the applicant and the learned Public Prosecutor. 4. The learned counsel appearing for the applicant submits that the deceased was a notorious criminal involved in N.D.P.S crimes. He was also addicted to drugs. When he was remanded to judicial custody, he showed symptoms of withdrawal. As a result of which he may have injured himself. The applicant denies having assaulted or manhandled the deceased. It is further contended that he was on duty from 30[th] September only and was not present at the scene of occurrence on 29[th] September as alleged by the prosecution. The applicant has no criminal antecedents. He has been in custody since 09.11.2020 and therefore, the learned counsel seeks indulgence of this Court in releasing the applicant on bail. 5. Per contra, the Learned Prosecutor submits 5 Bail Appl..No.157 OF 2021 that some of the colleagues of the applicant who were on duty have specified that despite the applicant not being on duty on the 29[th] September he was present and he had taken active participation in the assault of the deceased. The deceased was brutally kicked, manhandled, and assaulted with a lathi. There are 40 antemortem injuries noticed on the body of the deceased. Most of which were contusions, he sustained only one lacerated wound. 6. The learned counsel appearing for the applicant points out to the postmortem report to argue that the injuries were sustained more than 24 hours prior to the postmortem examination, and therefore, there is the possibility that he may have sustained those injuries before he was taken into custody, and therefore, rubbishes the case of the prosecution. 7. The investigation is still progressing and some of the main witnesses were questioned. Some 6 Bail Appl..No.157 OF 2021 of the witnesses are the colleagues of the accused persons. They have allegedly given statements to the effect that the accused persons including the applicant were involved in the assault of the remand prisoner. The accused persons are all responsible officers in the jail. They are supposed to keep prisoners in protective custody. The remand prisoners are technically in judicial custody. In spite of doing what they were duty-bound to do, they got involved in custodial torture resulting in the death of a remand prisoner. The protectors of law turned criminals. Custodial death is one of the worst crimes in a civilised society governed by the Rule of Law. The rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, Hon’ble Supreme Court has Bail Appl..No.157 OF 2021 7 _**Joginder Kumar v. State Of U.P and Others 1994 AIR**_ _**1349: 1994 SCC (4) 260**_ issued guidelines. The anguish expressed in a plethora of cases like _**Bhagwan Singh v State of Punjab, Pratul Kumar Sinha v State of Bihar, Kewal Pati v State of UP, Inder Singh v. State of Punjab, State of MP v Shyamsunder Trivedi and the by now celebrated decision in the landmark case of D K Basu vs.**_ _**State of West Bengal(1997 (1) SCC 416)**_ seems to have not caused any softening of attitude in the inhuman approach in dealing with persons in custody. Custodial torture cannot be tolerated. The prosecution has recorded the statements of official witnesses who were present at the scene of occurrence. Specific statements have been made regarding the overt acts attributed to the applicant. In case the applicant is released on bail at this crucial juncture of the investigation, there is every possibility of Bail Appl..No.157 OF 2021 8 influencing or intimidating witnesses. _Prima facie,_ the complicity of the applicant in the crime has been established. Even though he contends that he has not been in duty on the 29[th] of September. There is evidence to the effect that he was present despite being relieved from the duty from the centre on the 29[th] September. The allegation that the deceased had sustained injuries 24 hours prior to his death, and that it could have been very well sustained him during the withdrawal symptoms etc are cannot be accepted, because the remand prisoner was not produced for any doctor prior to his remand which indicates that injuries were noticed on his body even prior his remand. In the absence of such evidence, it has to be believed that all those 14 injuries which the deceased had sustained were caused during his custodial detention and the applicant being one of the officers who were responsible for Bail Appl..No.157 OF 2021 **==> picture [8 x 9] intentionally omitted <==** guarding the remand prisoner turning of assailant cannot be tolerated. The application for bail deserves no mercy or indulgence. Hence, the application for bail is dismissed. **Sd/-** ## **ASHOK MENON** **JUDGE** SPK