Sunil Kumar and Sabu v. State of Kerala and The Station House Officer, Katakkada Police Station, Thiruvananthapuram; Intervenor: Habel J.V

1 BA No.1995 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 1995 OF 2024 ``` ``` CRIME NO.1398/2023 OF Kattakada Police Station, Thiruvananthapuram ``` ## **`PETITIONER/S:`** - **`1 SUNIL KUMAR,AGED 33 YEARS,S/O. SURENDRAN, MISPA HOUSE, PARAMUKAL, KURAKONAM, KUZHAIKKADU MURI, VEERANAKAVU VILLAGE,THIRUVANANTHAPURAM DISTRICT, PIN - 695543`** - **`2 SABU,AGED 33 YEARS,S/O. SURENDRAN,MISPA HOUSE, PARAMUKAL, KURAKONAM, KUZHAIKKADU MURI, VEERANAKAVU VILLAGE,THIRUVANANTHAPURAM DISTRICT, PIN - 695543`** ``` BY ADVS. GEORGE MATHEW,V.S.VINEETH KUMAR,SUNIL KUMAR A.G MATHEW K.T.,GEORGE K.V.,STEPHY K REGI,MEDHA B.S. ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER,KATTAKADA POLICE STATION, THIRUVANANTHAPURAM, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`3 HABEL J.V ,S/O JALAJAN .N CHRIST NILAYAM CHANAVILA PERUMKULAM POOVACHAL THIRUVANTHAPURAM IS ADDED AS AS AN INTERVENOR AS PER ORDER DATED 15-3-24 IN CRL MA 2/24`** ``` BY ADVS. SRI.C.K SURESH, SENIOR PUBLIC PROSECUTOR SRI.M.R.SARIN - R3 ADGP Sri Grashious Kuriakose ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1995 of 2024 ## **C.S.DIAS,J** ## **====================== BA No.1995 of 2024 ----------------------------------Dated this the 8[th] day of April, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 2 in crime No.1398/2023 of the Kattakkada Police Station, Thiruvananthapuram, registered against the accused ( two in number), for allegedly committing the offences punishable under Sections 341, 294(b), 323, 324, 326, 307 ,302 and 506(i) read with Sec.34 of the Indian Penal Code. The petitioners were arrested on 5.9.2023. 2. The gravamen of the prosecution case is that; on 5.9.2023 at around 16.00 hours, the accused, in furtherance of their common intention and out of their previous animosity 3 BA No.1995 of 2024 with Jalajan (deceased) had wrongfully restrained the deceased and the first accused uttered obscene words at him and criminally intimidated him. Then the second accused caught hold of the deceased and both the accused fisted and beat him. Subsequently, the accused pushed down the deceased and the first accused armed with a concrete piece, weighing 2.280 kg, forcefully hit on the face of the deceased on multiple occasions and caused fatal injuries at him. The second accused also kicked and stamped on the chest of the deceased. Thus, the deceased lost his life. Accordingly, the accused have committed the above offences. 3. Heard; Sri.George Mathew, learned counsel appearing for the petitioners, Sri. C.K Suresh, the learned Senior Public Prosecutor appearing for the respondents and Sri.M.R Sarin, the learned counsel appearing for the intervenor/de facto complainant. 4 BA No.1995 of 2024 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The offence under Sec.302 of the IPC will not be attracted to the facts of the case. There has been a long family feud between the families of the petitioners and the deceased. The investigation in the case is practically complete and the final report has been laid. The petitioners have been in judicial custody since 5.9.2023. Therefore, the petitioners’ further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report. The Investigating Officer has stated that there are incriminating materials to show the petitioners’ active involvement in the crime. The final report has already been laid on 26.11.2023. The case has been committed to the Additional Court of Session-VII, Thiruvananthapuram, and has been numbered as 5 BA No.1995 of 2024 SC No.338/2024. The case stands posted to 15.4.2024 for framing of charge. There is a long standing family feud between the families of the petitioners as well as the deceased. If the petitioners are released on bail, there is every likelihood of a law and order situation in the locality. Moreover, the petitioners may intimidate the witnesses and tamper with the evidence. Hence, the application may be dismissed. 6. The learned counsel appearing for the intervenor also opposed the application. He submitted that if the petitioners are released on bail, there is every likelihood of them retaliating and causing threat to the lives of the family of the deceased. In fact, this Court has granted an order of police protection in their favour because of the threat of the petitioners. If the petitioners are released on bail, there is every likelihood of them sabotaging the entire prosecution case. Hence, the application may be dismissed. 6 BA No.1995 of 2024 7. On an analysis of the materials placed on record, especially the final report laid by the Police, it can be seen that the specific overt act of having committed the offence under Sec.302 of the IPC is attributed against the first accused, who with a concrete piece hit on the head of the deceased on multiple occasions and caused grievous injuries to him. The postmortem certificate dated 6.9.2023 issued by the Medical College Hospital, Thiruvananthapuram, shows the antemortem injury suffered by the deceased. The main injury is injury No.(ii), which shows that the skull of the deceased got fragmented into multiple pieces. The said injury prima facie shows that the prosecution case as against the first accused is probable and also his involvement in the crime. However, there is no specific overt act alleged against the second petitioner/second accused other than that he kicked and stamped the deceased. 7 BA No.1995 of 2024 8. The main opposition of the Investigating Officer is that since there is a long standing family feud between the families of the petitioners and the deceased, there is every likelihood of a law and order situation in the locality. Similarly, the accused may tamper with the evidence. Nonetheless, it is conceded that the investigation is completed and the final report has been laid as early as on 26.11.2023. The petitioners have been in judicial custody since 5.9.2023. 9. 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.” ## 10. Similarly, in _**Kalyan Chandra Sarkar v. Rajesh**_ ## _**Ranjan Alias Pappu Yadav and another**_ [(2004) 7 SCC 528], 8 BA No.1995 of 2024 the Honourable Supreme Court has held that while considering a bail application, a detailed examination of the evidence and an elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, reasonable apprehension of the accused tampering with the evidence or the apprehension of the 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 BA No.1995 of 2024 ## 11. 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 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.” ## 12. 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 10 BA No.1995 of 2024 arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the 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.” 13. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, the proclamation of law in the aforesaid decisions, and on comprehending the nature, seriousness and gravity of the accusations levelled against the first petitioner/first accused, the potential severity of the punishment that is likely to be imposed on him and the reasonable apprehension projected by the prosecution that the first petitioner may tamper with the evidence, I am not inclined to enlarge the first petitioner on bail, as it would have a deleterious impact on the society and justice would be thwarted. Hence, the application filed by the 11 BA No.1995 of 2024 first petitioner is only to be rejected. Nonetheless, on conceiving the fact that there is no specific overt act alleged against the second petitioner so as to attribute the offence under Sec.302 of the IPC, I am inclined to allow the application of the second petitioner. In the result, (I) The application filed by the first petitioner/first accused is dismissed. (II) The application filed by the second petitioner/second accused is allowed by directing the second petitioner to be released on bail on him executing a bond for Rs.50,000/(Rupees Fifty Thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The second petitioner shall appear before the Investigating Officer as and when required; 12 BA No.1995 of 2024 (ii) The second petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The second petitioner shall not commit any offence while he is on bail; (iv) The second petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. 13 BA No.1995 of 2024 (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. sd/- Sks/8.4.2024 **C.S.DIAS, JUDGE**