VYASAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945 BAIL APPL. NO. 1401 OF 2024** **CRIME NO.843/2023 OF Valappad Police Station, Thrissur** **PETITIONER/S:** **VYASAN AGED 43 YEARS S/O. SUDARSAN KAYINAPARAMBIL HOUSE, MOOTHAKUNNAM BEACH,NATTIKA VILLAGE, THRISSUR DIST., PIN - 680569** **BY ADVS. M.SHAJU PURUSHOTHAMAN K.S.RAJESH** ## **RESPONDENT/S:** **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:** **ADGP SRI GRASHIOUS KURIAKOSE SR PP SRI C K SURESH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 1401 OF 2024 2 ## **O R D E R** This is the second application filed under Section 439 of the Code of Criminal Procedure, 1973, by the sole accused in Crime No.843/2023 of the Valappad Police Station, Thrissur, registered against him, for allegedly committing the offences punishable under Sections 341, 323, 326, 324 and 302 of the Indian Penal Code (in short, ‘IPC’). The petitioner was arrested on 12.09.2023. 2. The gist of the prosecution case is that: on 05.09.2023 at around 18.43 hours, the accused had wrongfully restrained the defacto complainant (Sivanandan-deceased) and fisted him on his face and inflicted a blow on his nose, head and different parts of his body with an umbrella. The defacto complainant sustained serious injuries including internal bleeding and was taken to the hospital. However, he succumbed to the injuries on 11.09.2023. Thus, the accused has committed the above offences. 3. Heard; Sri. M. Shaju Purushothaman, the learned counsel appearing for the petitioner and BAIL APPL. NO. 1401 OF 2024 3 Sri.C.K.Suresh, the learned Special Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation leveled against him. A reading of the FIR as well as the Final Report laid by the Police would substantiate that the offences under Sections 326 and 302 of the IPC will not be attributed against the petitioner since he had allegedly assaulted the deceased with an umbrella. In any given case, the petitioner has been in judicial custody since 12.09.2023, the investigation is complete, the recovery has been effected and the Final Report has been laid. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. He submitted that the petitioner is a person with criminal antecedents. The petitioner is an accused in Crime No.299/2021 of the very same Police Station for committing a similar offence. In the investigation, it is revealed that the petitioner used an BAIL APPL. NO. 1401 OF 2024 4 iron rod to inflict the fatal injury on the deceased. Merely because the Final Report has been laid, does not entitle the petitioner to be released on bail in view of the decision of the Honurable Supreme Court in **Kalyan Chandra Sarkar vs. Rajesh Ranjan Alias Pappu Yadav and another** [AIR 2004 SC 1866]. If the petitioner is released on bail, he would certainly intimidate the witnesses and sabotage the trial. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that, on 05.09.2023, he had an altercation with the deceased and he fisted on his face and hit the deceased on his head with a weapon. The deceased suffered internal bleeding and lost his life on 11.09.2023. The petitioner was arrested on the following day and has been in judicial custody since then. 7. The materials on record reveal that the petitioner is also an accused in Crime No.299/2021 which shows that he is a person with criminal antecedents. 8. The petitioner had earlier filed B.A.No.10696/2023 BAIL APPL. NO. 1401 OF 2024 5 before this Court for a similar relief. By order dated 10.01.2024, this Court, taking into account the gravity and seriousness of the offences alleged against the petitioner, had dismissed the application. It is thereafter that the present application is filed within a period of two months on the ground that there is change of circumstances. ## 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 BAIL APPL. NO. 1401 OF 2024 6 thwarted by grant of bail.” 10. Subsequently, in **Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and another** [(2005) 2 SCC 42], the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the evidence or apprehension of 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. BAIL APPL. NO. 1401 OF 2024 7 ## 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 BAIL APPL. NO. 1401 OF 2024 8 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 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.” On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar and on comprehending the nature, seriousness and gravity of the accusations leveled against the petitioner, the potential severity of the punishment that is likely to be imposed on him, the antecedents of the petitioner and further that the reasonable apprehension projected by the prosecution that the petitioner may intimidate the witnesses and sabotaging the trial, I am of BAIL APPL. NO. 1401 OF 2024 9 the definite view that he petitioner is not entitled to be released on bail , as it would have a deleterious impact on the society and there is a danger of justice being thwarted. Hence, I hold that the application is meritless and is liable to be dismissed. Resultantly, the application is dismissed. Sd/- **C.S.DIAS,JUDGE** Rkc/13.03.24