Kerala High Court
Thanseer vs State Of Kerala on 24 September, 2019
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 24TH DAY OF SEPTEMBER 2019 / 2ND ASWINA, 1941
Bail Appl..No.6606 OF 2019
CRIME NO.302/2018 OF Pallickal Police Station, Thiruvananthapuram
PETITIONER/ACCUSED NO.4:
THANSEER, AGED 23 YEARS,
S/O.KUNJUMON, KOCHAYYATH THEKKETHIL, PUTHEN THERIVE,
ATHINADU VILLAGE, KARUNAGAPPALLY, KOLLAM DSITRICT.
BY ADVS.
SRI.P.K.VARGHESE
SRI.R.ROHIT
SMT.SANJANA RACHEL JOSE
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
DISTRICT COURT, THIRUVANANTHAPURAM.
SRI. SAJJU S, SENIOR PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
24.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.6606 OF 2019 2
ORDER
This application is filed under Section 439 of the Cr.P.C.
2. The applicant herein is the 4th accused in S.C. No.901 of 2018 on the files of the Principal Sessions Judge, Thiruvananthapuram. He faces indictment for having committed offences punishable under Sections 302, 307, 120B, 449, 201, 202 and 212 r/w. Section 34 of the IPC.
3. The 1st accused in the above case, who has not been arrested till date, is a successful businessman with establishments in the middle east. His marriage with his wife was on the rocks as he believed that she was having an extra marital relationship with one Rajesh. He resolved to teach Rajesh a lesson and confided his wish to the 2nd accused, who was a close associate and employee. The 2nd accused, had good connections in the State of Kerala. Rajesh incidentally was running a Recording Studio at Madavoor, within the territorial jurisdiction of Pallickal Police Station. The 2 nd accused contacted accused Nos. 3, 4, 5 and 7 and hatched a conspiracy to do away with Rajesh. They assembled in the house of the 6th accused and hatched a plan to liquidate Rajesh. Weapons and vehicles were mobilized and necessary arrangements were made to make good their escape without leaving any trace. On 26.03.2018, in the late hours, the accused Nos. 2 to 4 proceeded in a Maruti swift car and reached the recording studio of the deceased. They entered the studio and found that CW1, a close friend of Rajesh, was with him. The applicant with intent to murder, Bail Appl..No.6606 OF 2019 3 flashed a bill-hook and inflicted serious injuries on the body of CW1. After injuring CW1, the accused Nos. 2 and 3 entered the studio and after cornering Rajesh, with intent to commit murder, inflicted a series of cut injuries with swords. After ensuring that Rajesh would not survive, the accused are alleged to have left the scene. Rajesh was rushed to the hospital, however, his life could not be saved. Based on the statement furnished by CW1, a crime was registered on 27.03.2018. Investigation was taken over by the Inspector of Police, Kilimanoor, who laid the final report before Court.
4. The learned counsel appearing for the applicant submitted that the applicant has been undergoing incarceration from 10.04.2018. Referring to a recent judgment of the Hon'ble Apex Court in Dataram Singh v. State of Uttar Pradesh1, it is submitted that though the grant or denial of bail is entirely the discretion of the Judge, in the facts and circumstances of each case, the exercise of judicial discretion has been circumscribed by the decisions of the Apex Court as well as this Court. The jurisdiction must be exercised judiciously, in a humane manner and compassionately without being carried away by the severity of the allegations, submits the learned counsel. He would also place heavy reliance on the decision of the Apex Court in State of Kerala v. Raneef2 and it is argued that when under-trial prisoners are detained in jail custody for an indefinite period, Article 21 of the Constitution of India is violated. The long period of detention undergone by the applicant is highlighted by the learned 1 [2018 (3) SCC 22] 2 [(2011) 1 SCC 784] Bail Appl..No.6606 OF 2019 4 counsel to persuade this Court to release him on stringent conditions.
5. The learned Public Prosecutor has strenuously opposed the prayer. It is submitted that the applicant herein is one of those persons, who had entered the studio and inflicted injuries on the prime witness with a bill hook. He would further contend that the applicant is a history sheeter and his antecedents discloses his propensity to involve in heinous offences. He has given the details of Crime No.1652 of 2016 registered inter alia under Sections 326 and 308 of the IPC, Crime No.1702 of 2016 registered under Sections 326 and 307 of the IPC, Crime No.1659 of 2016 registered under Sections 326 and 308 of the IPC and Crime No.3390 of 2016 registered inter alia under Sections 452 and 427 of the IPC to substantiate his submissions. It is further submitted that the previous applications filed by the applicant was dismissed by this Court and there is no reason to take a different view now. If the applicant is released, there is every reason to believe that he would intimidate and influence the sole eye witness and the entire trial would be reduced to a farce.
6. I have considered the submissions advanced and have gone through the materials made available.
7. The principles, which the Court must consider while granting or declining bail, have been stated by the Apex Court in a catena of cases. In Prahlad Singh Bhati v. NCT, Delhi3 , it was held thus:
3 [(2001) 4 SCC 280] Bail Appl..No.6606 OF 2019 5 "The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support 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 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 establishing the guilt of the accused beyond reasonable doubt."
The very same principles were reiterated in State of U.P. v. Amarmani Tripathi4 as well.
8. In the case on hand, there cannot be any doubt that the allegations against the applicant are extremely grave. This is a case of planned murder committed in the dead of night by hired killers. The witnesses cited by the prosecution, some of whom are injured, have identified the accused, who had trespassed inside the studio and had hacked him to death. As held by the Apex Court, the reasonable possibility of the witnesses being tampered with and the possibility of securing the presence of the accused at the time of trial are valid considerations. The mere fact that the applicant has been in custody for some time may not be a reason to allow his application for bail. As held by the Apex 4 [(2005) 8 SCC 21] Bail Appl..No.6606 OF 2019 6 Court in Rajesh Ranjan Yadav v. CBI5, while Article 21 of the Constitution of India is of great importance, a balance must be struck between the right of liberty of the person accused of an offence and the interest of the society. No right can be absolute and reasonable restrictions can be placed on the exercise of the rights. The grant of bail due to prolonged incarceration cannot be said to be an absolute rule because, the grounds of bail must depend upon the contextual facts and circumstances. Furthermore, the applicant is a person with criminal antecedents and there is no guarantee that he would not influence the witnesses or tamper with the evidence.
9. Having considered the nature and gravity of the accusations against the applicant, the apprehension expressed by the prosecution concerning the safety of the prime witness and the likelihood of his abscondence, I am of the view that this Court will not be justified in releasing the applicant on bail at this stage.
This application will stand dismissed.
SD/-
RAJA VIJAYARAGHAVAN V., JUDGE DSV/24.9.19 //TRUE COPY// P.A. TO JUDGE 5 (AIR 2007 SC 451)