SUHAIB K.M. v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIA, 1944** ## **BAIL APPL. NO. 6071 OF 2022** **CRIME NO.242/2022 OF Manjeri Police Station, Malappuram** ## **PETITIONER/1ST ACCUSED:** **SUHAIB K.M.,S/O ,MOHAMMEDALI AGED 25, KOTTAKATH MATAYI HOUSE, NEELIKUTH.P.O, NEELIKUTH, MUKKAM, MALAPPURAM DISTRICT PIN - 676122** **BY ADV V.HARIKRISHNAN** ## **RESPONDENTS/STATE -DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 STATIION HOUSE OFFICER MANJERI POLICE STATION, MALAPPURAM, PIN - 676121 ADDL.R3 SOUJATH K.P.,W/O. JALEEL THALAPPIL, THALAPPIL HOUSE, KIZHAKKETHALA, PAYYANAD, MANJERI DISTRICT IS IMPLEADED AS ADDL.R3 AS PER ORDER DATED 26.10.2022 IN CRL.MA NO.1 OF 2022 R1 & R2 BY SR.PP SRI S.SAJJU R3 BY ADV.AHAMED FAZIL DIRECTOR GENERAL OF PROSECUTION(AG-10) P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR()** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BA No.6071 of 2022 2 ## **VIJU ABRAHAM, J.** **................................................................. B.A.No.6071 of 2022 .................................................................** Dated this the 26[th] day of October, 2022 ## **ORDER** Application for regular bail. 2. Petitioner is the 1[st] accused in Crime No. 242/2022 of Manjeri Police Station registered under Sections 341,323,427, 506 (1) and 302 read with Section 34 of the Indian Penal Code registered on 30/03/2022. The First Information Report was initially lodged under Section 307 read with Section 34 IPC. 3. The prosecution case is that on 29/03/2002 at about 21-30 hours, an alleged quarrel occurred between the accused persons and the defacto complainant and his friend at Payyanad at ThamarasseryOliprakkad road, on the issue of not giving way to the vehicle of the accused persons by the de-facto complainant and others. It is further alleged that from that place, the accused threatened the de-facto complainant and his friends and damaged the backside glass of Innova Car, in which the de-facto complainant and the others were travelling, resulting in damage to the tune BA No.6071 of 2022 3 of Rs 20,000/-. Due to this enmity, it is further alleged that on the very same day at about 22.00 hours, by the side of the road at KuttipparaThamarasery which is about 800 meters away from the first place of occurrence, accused Nos.1 and 2 came in a motorcycle and accused no.1 hit on the head of one Abdul Jaleel using a granite stone. It is alleged that the injured Abdul Jaleel was taken to hospital at Perinthalmanna and while under treatment the injured died on 30/03/2022 at about 19.20 hours. According to the prosecution allegation, accused No.3 was present in the second place of occurrence as instructed by accused No1. and passed information regarding the presence of the de-facto complainant and others to the remaining accused, and thus the accused committed the above offences. The co–accused in this case who are similarly placed are granted bail by this Court as per Annexures A2 and A3 orders. The petitioner is in custody from 02/04/2022. Petitioner also contended that going by the judgment of the Apex Court in _**Satender Kumar Antil v. CBI and others, MANU/SC/0851/22**_ , bail is the rule and jail is the exception. Learned counsel for the petitioner relying on _**Emperor v. H.L. Hutchinson, AIR 1931 Allah 356**_ contended that an accused person who enjoys freedom is in a much better position to look after his case and properly defend it than he is in custody. Learned counsel for the petitioner relying on _**Maulana Mohammed**_ BA No.6071 of 2022 4 _**Amir Rashadi v. State of Uttar Pradesh and another (2012) 2 SCC 382 and Prabhakar Tewari v. State of Uttar Pradesh and another, (2020) 11 SCC 648**_ contended that criminal antecedents by itself will not be a reason for rejecting the bail. 4. The widow of the deceased got herself impleaded and appeared through counsel. She seriously opposed the application for bail mainly contending that it was the petitioner who hit on the head of the deceased several times with a sack containing broken granite and he succumbed to the injuries leaving her and her children orphans. 5. Learned Public Prosecutor opposed the application for bail mainly contending that on 29.03.2022 at about 21.20 hours, a quarrel occurred between the accused and the de facto complainant and his friends at Payyanad, Thamarassery-Oliprakkadu road on the issue of not giving way to the vehicle of the accused by the defacto complainant and others. From that place the accused threatened the de facto complainant and his friends and damaged the backside glass of the Innova car in which the defacto complainant and others were travelling, resulting in damage to the tune of Rs.20,000/-. Due to this enmity on the very same day at about 22.00 hours, by the side of the road at Kuttippara Thamarassery, which is about 800 meters away from the first place of occurrence, the accused came in two BA No.6071 of 2022 5 motorbikes and hit on the head of one Abdul Jaleel using a granite stone. The injured Abdul Jaleel was taken to Perinthalmanna Hospital and while under treatment he died on 30.03.2022 at about 19.20 hours. The serious overt act of hitting the victim several times with a granite stone is on the petitioner. Petitioner is having serious criminal antecedents having got involved in three other criminal cases which are detailed below: _(i) Crime No.53 of 2016 registered under Sections 143, 147, 148, 324, 326 and 427 read with Section 149 IPC, (ii) Crime No.76 of 2016 registered under Sections 341, 323, 324, 506(ii), 283 and 308 read with Section 34 IPC and (iii) Crime No.730 of 2020 registered under Section 117(e) of the KP Act, of Manjeri Police Station._ The petitioner was granted bail in Crime No.76/2016 on a specific condition that he shall not get involved in any other crimes and the present crime was committed in clear violation of the said order and the bail granted in the said case is already cancelled. Preventive measures are already initiated by the police against the petitioner including proceedings under Section 107 Cr.P.C. and also a rowdy history sheet is also opened at Manjeri Police Station. 5. I have considered the rival contentions of the parties. Going by the prosecution case, there was an earlier incident between the accused BA No.6071 of 2022 6 and the defacto complainant on the issue of not giving way to the vehicle of the accused by the defacto complainant and others. From that place the accused threatened the defacto complainant and his friends and damaged the backside glass of the Innova car in which the defacto complainant and others were travelling, resulting in damage to the tune of Rs.20,000/-. Due to this enmity on the very same day at about 22.00 hours, by the side of the road at Kuttippara-Thamarassery, which is about 800 meters away from the first place of occurrence, the accused came in two motorbikes and hit on the head of one Abdul Jaleel using a granite stone and he succumbed to the injuries. This itself will show that the act was not due to any sudden provocation but a premeditated act. It is also to be seen that serious overt act is alleged against the petitioner. It is also brought to the notice of this Court that the petitioner is having serious criminal antecedents. The petitioner relies on the judgment in _**Satender Kumar Antil**_ ’s case supra to contend that bail is the rule and jail is the exception. Petitioner also relies on the judgment in _**H.L. Hutchinson**_ ’s case supra to contend that an accused person who enjoys freedom is in a much better position to look after his case and properly defend it than he is in custody. The petitioner also relies on _**Maulana Mohammed Amir Rashadi**_ ’s case supra and _**Prabhakar Tewari**_ ’s case supra to contend for the position that criminal antecedents by itself will BA No.6071 of 2022 7 not be a reason for rejecting the bail. In _**Maulana Mohammed Amir Rashadi**_ ’s case supra and _**Prabhakar Tewari**_ ’s case supra, the Apex Court was considering the request for cancellation of bail granted by the High Court and declined to interfere. The parameters for cancellation of bail already granted are totally different from the criteria for grant of bail. The Apex Court in _**Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director, 2007 KHC 3002**_ , has considered and rejected a similar contention that if the petitioner is not granted bail, he cannot conduct his defense effectively. The Apex Court has time and again reminded about the facts to be born in mind while considering an application for bail which has been summarized in _**Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496**_ as follows: _“9.…………. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. 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_ BA No.6071 of 2022 8 _(viii) danger, of course, of justice being thwarted by grant of bail.” [See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)] (SCC p. 31, para 18), Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 : 2001 SCC (Cri) 674] , and Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598]._ A similar view was taken by the Apex Court in _**P…..v. State of Madhya Pradesh, 2022 SCC OnLine SC 552**_ , **Mamta and another v. State (NCT of Delhi) and another, 2022 (8) SCC 598** and _**Deepak Yadav v. State of Uttar Pradesh and another, (2022) 8 SCC 559.**_ Specific overt act is alleged against the petitioner, and the petitioner has serious criminal antecedents. Considering all these aspects, I am not inclined to grant bail to the petitioner at this stage. The bail application is accordingly dismissed. Sd/- ## **VIJU ABRAHAM** **JUDGE** cks