Sunil N S v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN FRIDAY, THE 25[TH] DAY OF AUGUST 2023 / 3RD BHADRA, 1945 BAIL APPL. NO. 7254 OF 2023 ``` ## **`APPLICANT/ACCUSED:`** ``` SUNIL N S AGED 33 YEARS NEDUIVALIKKUDI, ELAMPAKKAPPILLY, VENGOOR, KOOVAPPADY, ERNAKULAM, PIN - 683544 BY ADVS. B.MEERA V.V.PRATHEEKSH KURUP ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 BY ADVS. ADVOCATE GENERAL OFFICE KERALA DIRECTOR GENERAL OF PROSECUTION(AG-10) P.NARAYANAN, SENIOR G.P. AND ADDL.PUBLIC PROSECUTOR() ``` ## **`PRESENT:`** ``` SRI. T.A.SHAJI, DGP, SRI.S.SAJJU, SR. PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO.7254 OF 2023 ``` 2 ## **P.V.KUNHIKRISHNAN, J. -----------------------------Bail Appl. No.7254 of 2023** **---------------------------------------------Dated this the 25[th] day of August, 2023** ## **O R D E R** This Bail Application is filed under Section 439 of Criminal Procedure Code (Cr.P.C.) 2. The petitioner is the accused in Crime No.297/2017 of Nedumbassery Police Station, Ernakulam. The above case is pending before the Principal District and Sessions Court, Ernakulam as S.C. No.118/2018. 3. The prosecution case is that in furtherance of a criminal conspiracy by a movie star, who is the 8[th] accused in this case, the petitioner/1[st] accused along with certain other accused abducted and sexually 3 ``` BAIL APPL. NO.7254 OF 2023 ``` assaulted the victim in this case in a moving car. The offences alleged against the petitioner/accused and other accused are under Sections 120B, 109, 342, 366, 354, 354B, 357, 376D, 201, 212 read with Section 34 of the Indian Penal Code, 1860 and under Sections 66E and 66A of the Information Technology Act, 2000. The petitioner/accused herein has been custody in connection with the above case from 23.02.2017 onwards. The petitioner/accused has been in judicial custody for the last six years. The petitioner/accused approached this Court earlier by filing a bail application numbered as B.A. No.2594 of 2022, and the same was dismissed by a detailed order on 29.03.2022. That order was challenged by the petitioner/accused before the Supreme Court, and the Apex Court dismissed the bail application with an observation that if the trial is not concluded within a reasonable time, the petitioner/accused is at liberty to 4 ``` BAIL APPL. NO.7254 OF 2023 ``` renew his application for grant of bail pending trial before the High Court. Based on the above observation of the Apex Court, B.A. No.1023/2023 was filed. 4. Thereafter, this Court again considered the Bail application in detail and dismissed the same as per order dated 06.03.2023. The above order was challenged before the Apex Court and the Apex Court dismissed the same as per order dated 04.08.2023. Now, the petitioner again filed this Bail application stating that the Apex Court extended the time to dispose the case till March 2024 and his mother is laid up and he may be released on bail. 5. Heard the learned counsel appearing for the petitioner and the learned Director General of Prosecution (DGP), Sri. T.A. Shaji. 6. The learned counsel for the petitioner raised various contentions including the infringement of right of the petitioner under Article 21 of the Constitution of 5 ``` BAIL APPL. NO.7254 OF 2023 ``` India. The Director General of Prosecution opposed the Bail application and submitted that the petitioner is not entitled for bail. 7. This Court considered the contentions of the learned counsel appearing for the petitioner and the learned Director General of Prosecution. This Court in Annexure-A3 order considered all the contentions after going through the evidence adduced by the victim in this case. It will be better to extract paragraph nos.14 and 15 of Annexure–A3 order: “14. As directed by this Court, the learned Sessions Court has already forwarded the legible readable copy of the evidence adduced by the victim in a sealed cover. This Court carefully perused the same to find out the prosecution case. It is not proper to make any observations about the evidence adduced by the victim before the Trial Court at this stage because it may affect the prosecution and the defense case. But after understanding the ``` BAIL APPL. NO.7254 OF 2023 ``` 6 prosecution case based on the evidence adduced by the victim in this case, I am of the considered opinion that the petitioner/accused is not entitled bail even though he has been in jail for about six years. The prosecution case is very serious. The prosecution case is that, the victim was taken in a car and she was sexually harassed brutally by the petitioner/accused and others turning a deaf ear to her begging to release her. A conspiracy is also alleged. Whether the victim is a cine artist or not is not at all a factor. The prosecution case is that a lady was brutally attacked. The truth has to come out after the trial. Simply because the petitioner/accused is in jail for six years, it cannot be a ground to release him in such a serious case. The prosecution and the Court are taking every possible effort to conclude the trial as expeditiously as possible. The Apex Court is also supervising the trial and is granting time to the Trial Court to complete the trial. The Trial Court now says that the sessions ``` BAIL APPL. NO.7254 OF 2023 ``` 7 case itself can be disposed of within six months. I believe that in such a situation this Court need not entertain this bail application. Whether the prosecution succeed in this case or the defence succeed in this case is not a criteria in these types of cases. When there is serious allegation against an accused affecting the conscience of the society, this Court cannot allow bail application solely on the ground of personal liberty. The gravity of the offence alleged against the accused is also a criteria to be considered by the Court while deciding the bail application. That is settled in the light of the decision of the apex court in **P. Chidambaram v.** **Central Bureau Of Investigation** [AIR (2019) SC 5272]. It will be better to extract the relevant portions in the above decision hereunder: “22. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of ``` BAIL APPL. NO.7254 OF 2023 ``` 8 the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the Court has to be exercised judiciously and not in an arbitrary manner…...” 15. After going through the prosecution case and keeping in mind the above principle laid down by the Apex Court, I am of the considered opinion that the petitioner/accused is not entitled bail even though he has been jail for about six years. The petitioner/accused should face trial in custody in the ``` BAIL APPL. NO.7254 OF 2023 ``` 9 peculiar facts and circumstances of this case.” 8. The above order is confirmed by the Apex Court as per order dated 17.04.2023. Annexure-A4 is the order. It will be better to extract the contents in Annexure–A4 order: “We find no ground to interfere with the impugned order passed by the High Court. The Special Leave Petition is, accordingly, dismissed. However, let the trail be expedited. Pending interlocutory application(s), if any, is/are disposed of.” 9. Thereafter, the Apex Court as per order in Miscellaneous Application No. 1433/2022 in Crl.A. No. 1794/2019 extended the time to complete the trial. Considering the facts and circumstances of the case, I am of the considered opinion that this Bail application need not be entertained. This Court considered all the contentions raised by the petitioner in Annexure-A3 order and the same is ``` BAIL APPL. NO.7254 OF 2023 ``` **==> picture [13 x 10] intentionally omitted <==** confirmed by the Apex Court. There is no change of circumstances. Therefore, this Bail application is dismissed. Sd/- nvj **P.V.KUNHIKRISHNAN JUDGE**