Subeesh @ Mani v. State of Kerala and Central Bureau of Investigation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942** ## **Bail Appl..No.4942 OF 2020** ## **CBCID, KASARAGOD** **FIR NO.75/CB/KNR & KSB/2009 BEKAL P.S CRIME NO.81/2019** ## **PETITIONER/S:** **SUBEESH@MANI AGED 30 YEARS OCC-COOLIE, S/O GANGADHARAN, PULIKKAL VEEDU, VELITHOLI, PANAYAL GRAMAM, KASARGODE, KASARGOD PIN671316** **BY ADVS. SRI.K.P.PRASANTH SHRI.SHAFIN AHAMMED SMT.ARCHANA SURESH SHRI.JOBIN ABRAHAM SHRI.BIJU ANTONY ALOOR** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM 682031 2 CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682031** **R1 BY PUBLIC PROSECUTOR R1 BY DIRECTOR GENERAL OF PROSECUTION R2 BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR** ## **OTHER PRESENT:** ## **SRI.SUMAN CHAKRAVARTHY-SR PP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 01.10.2020, THE COURT ON 18.12.2020 PASSED THE FOLLOWING:** BA 4942/2020 2 ## **O R D E R** ## **Dated this the 18th day of December 2020** This is an application seeking regular bail under Section 439 Cr.PC. 2. The applicant is the 8[th] accused seeking bail under Section 439 Cr.P.C. This is a successive bail application filed by him. The first application filed by him for bail as B.A. No. 8495 of 2019 was dismissed by this court vide Order dated 22.07.2020. The applicant states that there are change of circumstances which enebles him to seek bail. 3. Two Youth Congress activists, namely Kripesh and Sarath Lal aged 21 and 24 years, respectively, were brutally murdered on the 17[th] day of February, 2019. They had sustained between 15 and 20 injuries respectively, all over BA 4942/2020 3 their body particularly over their head and neck, most of which proved fatal. 4. The prosecution case, in brief, is that owing to the previous enmity and political rivalry, between the aforesaid deceased persons and the 1[st] accused, who was the then branch secretary of CPI (M) Periya panchayat, and in retaliation to an incident involving the deceased along with other Congress party members attacking the 1[st] accused on 5[th] January 2019, accused 1 to 9 and 11 hatched a conspiracy on 14.02.2019 to murder the aforesaid Kripesh and Sarath Lal. Resultantly, on 17.02.2019, accused 1 to 8 as members of an unlawful assembly, in prosecution of the common object to murder them, lay in wait for them near an arecanut garden near the KSEB substation Periya adjoining the public road. By BA 4942/2020 4 about 7:45 PM, the deceased Kripesh came riding a motorcycle with Sarath Lal on the pillion. Accused 1, 2, 5 and 8 beat them with iron pipes while accused 3, 4 and 7 hacked them with the swords and inflicted the injuries as stated earlier. Both succumbed to their injuries. 5. Initially, Crime No.81/2019 was registered in Bekal Police station for offence punishable under Section 302 I.P.C on the basis of a first information statement given by Sreekumar, a co-worker of the deceased persons in the Congress party. Considering the gravity of the offence, the investigation was handed over to the Deputy Superintendent of Police, Crime Branch, Kasragod, and the case re-registered as Crime No.75/CB/KNR&KSD/2019 for offences punishable under Sections 143, 147, 148, 341, 326, 201, 212, 120B, 118 BA 4942/2020 5 and 302 read with Section 149 I.P.C. 6. A1 and A2 were arrested, respectively, on the 19[th] and 20[th ] February, while A3 to A7 were arrested on the 21[st] of February, 2019. The applicant was arrested on 16.05.2019 and remanded to judicial custody. The final report was filed by the Crime Branch on 20.05.2019. 7. The parents of the deceased persons filed WP(C) No. 10265/2019 seeking a Writ of mandamus to hand over the investigation to the Central Bureau of Investigation (CBI). A Single Bench of this Court vide order dated 30.09.2019 allowed the Writ Petition and transferred the investigation in the aforesaid crime to the CBI after setting aside the final report already filed by the Crime Branch. The Division Bench of this Court and the Hon'ble Supreme Court have confirmed that BA 4942/2020 6 decision. The CBI has taken over the investigation. 8. The applicant applied for bail before the Court of Sessions, Kasragod and the same was dismissed on 31[st] October, 2019 vide Annexure-1 Order stating that the investigation has been taken over by the CBI and that the Sessions Court, Kasargode has no jurisdiction to grant bail to the applicant. 9. Thus, the applicant had approached this Court by filing B.A.No.8495/2019. The applicant states that he has been falsely implicated. The investigation is almost over and that soon after his arrest, his custodial interrogation was also completed, and therefore his further incarceration is unjustified. This Court vide Annexure-4 Order, declined bail for the reasons stated therein. BA 4942/2020 7 10. Heard the learned counsel for the applicant Shri.B.A. Aloor, learned Senior Public Prosecutor Shri.Suman Chakravarthy, and Shri Sasthamanglam S.Ajithkumar, the learned Standing Counsel appearing for the CBI. 11. The learned Sr. Prosecutor, Shri.Suman Chakravarthy submits that the applicant had fled the country soon after the commission of the offence. Lookout notice was issued to apprehend him. On 16.05.2019, the applicant was apprehended soon after his arrival at the Mangalore International Airport. After his judicial remand by the JFCM, he was taken into Police custody for 3 days and certain important discoveries were made in consequence to his confession statement. It is stated that he had along with the 5[th] accused destroyed the bloodstained clothes worn by the accused by BA 4942/2020 8 incineration. The lighter used by him was also recovered. The motorcycle that was used by him to reach the scene of occurrence too was recovered. One of his slippers recovered from the scene of occurrence was identified by him. It is stated that the applicant was a part of the conspiracy to commit murder and had actively participated in the execution of the conspiracy that was hatched. He had joined the others in beating the deceased to death with a GI pipe. 12. Shri.Aloor submitted that in the judgement of the learned Single Judge of this Court, it is observed that the deceased did not sustain any injury inflicted by an iron pipe as the autopsy report observes that none of the injuries seen on the bodies could have been caused with a weapon like an iron pipe. In view of such finding by this Court, the very foundation BA 4942/2020 9 of the prosecution case crumbles as it is specifically alleged that the applicant had used an iron pipe to beat the deceased persons to death. Hence, it has to be held that no injury was caused by him or overt act attributed to the applicant. 13. Per contra, the learned counsel appearing for the CBI submits that the applicant had once absconded and in case of his being released, there is every possibility that he may abscond again. 14. The learned Standing Counsel appearing for the CBI submits that the investigation has already been taken over by the CBI in consequence to the order of the learned Single Judge of this Court. The case files are yet to be handed over and in view of that, the investigation by the central agency is yet to commence. But based on available materials, the complicity of BA 4942/2020 10 the accused is establised. He is politically well connected, and in case he is released on bail, the possibility of his intimidating or influencing witnesses is high. There are no change of circumstances which warrants granting of bail to the applicant. 15. The court has to keep in mind what has been stated by the Apex court in Chaman Lal vs. State of U.P. and another, [2004 (7) SCC 525] . The requisite factors are: (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. 16. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and another [2010 (14) SCC 496] , it has been opined that while BA 4942/2020 11 exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. It is usefull to reproduce the said passage: "9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to be believed 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." ## 17. In Central Bureau of Investigation vs. V. Vijay Sai BA 4942/2020 12 ## Reddy [2013 (7) SCC 452] , the Hon'ble Supreme Court had reiterated the principle by observing thus: "While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public / State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." BA 4942/2020 13 The very fact that the applicant discreetly went outside India to avoid arrest would, prima facie, reveal that he is a person who can take the law into his hands. He may even abscond in the future, which may delay the process of justice. According to the prosecution, the witnesses are already frightened and consequently may not go before the Court to depose against the accused, in which event justice may suffer. 18. The principles of res judicata and such analogous principles although are not applicable in a criminal proceeding, still the courts are bound by the doctrine of judicial discipline having regard to the hierarchical system prevailing in our country. Ordinarily, the issues which had been canvassed earlier would not be permitted to be reagitated on the same grounds even though there is room for filing a subsequent bail BA 4942/2020 14 application and in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application. (See Kalyan Chandra Sarkar v. Pappu Yadav [AIR 2005 SC 921] ). 19. As regards the applicant's claim for bail on other grounds, I find that the applicant has been absconding for a fairly long time after the alleged occurrence. The argument of the learned counsel that the case against the applicant has to be thrown overboard at the threshold for the reason that the autopsy report of the doctor who performed the post-mortem has opined that no injuries were noticed on the dead bodies BA 4942/2020 15 which could be inflicted with a weapon like an iron pipe, is not acceptable to me for the reason that the learned Single Judge has pointed out to the autopsy report as an infirmity in the investigation by the Crime Branch to order further investigation by a different agency. That does not however exonerate the perpetrators of the crime. Considering the gravity of the offence committed by the accused, I find that this is not a case fit case for granting of bail, particularly because further investigation by the CBI is yet to commence. The bail application is dismissed. **Sd/-** **ASHOK MENON** **JUDGE** jg