SURESH BABU.P @ PARAYI BABU v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 10[TH] DAY OF JANUARY 2024 / 20TH POUSHA, 1945 ``` ``` BAIL APPL. NO. 10781 OF 2023 ``` ``` CRIME NO.896/2022 OF THALASSERY POLICE STATION, KANNUR AGAINST THE ORDER/JUDGMENT CRLMC NO.494 OF 2023 OF DISTRICT COURT ``` ``` & SESSIONS COURT,THALASSERY ``` ## **`PETITIONER/ACCUSED:`** ``` SURESH BABU.P @ PARAYI BABU AGED 48 YEARS S/O.PARAYI NANU, RESIDING AT VELLADATHIL MEETHAL ILLIKKUNNU,NETTUR.P.O,KANNUR DISTRICT, PIN - 670105 ``` ``` BY ADV M.BAIJU NOEL ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY ADVS. ADVOCATE GENERAL OFFICE KERALA ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11) ADDL. STATE PUBLIC PROSECUTOR(AG-28) ``` ## **`OTHER PRESENT:`** ``` ADDITIONAL DIRECTOR GENERAL OF PROSECUTION SRI GRASHIOUS KURIAKOSE ``` ``` SR PUBLIC PROSECUTOR SRI C K SURESH ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 10.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`B.A. NO.10781 OF 2023 2`** ## **Dated this the 10[th] day of January, 2024** ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (in short, the Code), by the first accused in Crime No.896/2022 of the Thalassery Police Station registered against the accused (7 in number) alleging them to have committed the offences under Sections 143, 147, 148, 120(B), 341, 323, 307, 302, 212 r/w Section 149 of the Indian Penal Code (in short, IPC). The petitioner was arrested on 24.11.2022. 2. The prosecution case, in brief, is that: on 23.11.2022 at about 3.55 p.m. the accused committed murder of two persons, named Shameer and Khalid by stabbing them with a knife in front of Thalassery Cooperative Hospital. It is stated by the prosecution that the accused 1 to 5, who were involved in illegal ## **`B.A. NO.10781 OF 2023 3`** trafficking of narcotic drugs, went to the spot in an autorickshaw and the first accused went inside the hospital and brought Shameer and Khalid out of the hospital under the pretext of having settlement talks with them in relation to an incident concerning the manhandling of the son of the deceased Shammer, named Shebin. The accused out of their previous animosity and their common intention, took the weapons and indiscriminately stabbed the deceased. Thus, the accused have committed the above offences. 3. Heard; Sri.M Baiju Noel, the learned counsel appearing for the petitioner and Sri. Grashious Kuriakose the learned Additional Director General of Prosecution. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He had no intention to commit the above offences. The investigation in the case is complete and the final report has already been laid before the jurisdictional Magistrate and the committal proceeding is ## **`B.A. NO.10781 OF 2023 4`** in progress. The petitioner has been in incarceration since 24.11.2022. The petitioner’s continued detention is unnecessary. The petitioner is willing to abide by any stringent condition imposed by this Court. Hence, the petitioner may be released on bail. 5. The learned Additional Director General of Prosecution strenuously opposed the application. He contended that the petitioner is a history-sheeter. The petitioner is also accused in nine other crimes of different police stations including offences under the NDPS Act. The petitioner is the kingpin of the incident. Two persons have lost their lives. It is the petitioner who conspired with the other accused and committed the heinous act of murder. If the petitioner is let off on bail at this stage, there is every likelihood of him tampering with evidence, influencing and intimidating the witnesses. Hence, the application may be dismissed. 6. The predicate offence alleged against the petitioner is under Section 302 of the IPC. The materials ## **`B.A. NO.10781 OF 2023 5`** on record reveal that, it was the petitioner who had allegedly inflicted stab injuries on two persons, who lost their lives in the incident. It is also evident from the case diary that the petitioner is involved in nine other crimes. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Another** [(2010) 14 SCC 496], in paragraph 9, 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 (viii) danger, of course, of justice being thwarted by grant of bail.” ## 8. In **Prahlad Singh Bhati v. NCT, Delhi, [(2001) 4 SCC 280]** , the Hon'ble Supreme Court opined thus:-: “ 8........................While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support ## **`B.A. NO.10781 OF 2023 6`** thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing 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 or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the 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 it (sic 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 stablishing the guilt of the accused beyond reasonable doubt.” 9. In **Chaman Lal v. State of U.P** ., [(2004) 7 SCC 525], the Apex Court has laid down certain factors, namely, the nature of the accusation, the severity of punishment in case of conviction and the character of supporting evidence, reasonable apprehension of tampering with the witness or apprehension of threat to the complainant, and prima facie satisfaction of the Court in support of the charge to be kept in mind while considering an application for bail. ## **`B.A. NO.10781 OF 2023 7`** 10. In a recent decision in **P.Chidambaram vs. Directorate of Enforcement** [2019 SCC online SC 1549] the Honourable Supreme Court has held that on a cumulative appreciation of the facts, if the applicant satisfies the Court of the tripod test, that is (i) the absence of flight risk (ii) tampering with evidence and (iii) influencing the witness, then bail can be granted. 11. After bestowing my anxious consideration to the materials placed on record, and taking into account the gravity of the accusation levelled against the petitioner, his criminal antecedents, especially after being involved in nine other crimes, including offences under the NDPS Act, the severity of punishment that is likely to be imposed on him in the event of his conviction and also the reasonable apprehension projected by the prosecution that the petitioner being a history-sheeter, he is likely to intimidate the witnesses to depose in his favour, I am of the definite view that if the petitioner is enlarged on bail, there is every likelihood of justice being thwarted. ## **`B.A. NO.10781 OF 2023 8`** Therefore, I am not at all inclined to grant bail to the petitioner. The bail application is meritless and is only to be dismissed. Resultantly, the bail application is dismissed. **SD/-** **C.S.DIAS, JUDGE** rmm10/1/2024