BAIL APPL. NO. 5267 OF 2022 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 27TH DAY OF JULY 2022 / 5TH SRAVANA, 1944
BAIL APPL. NO. 5267 OF 2022
CRIME NO.723/2019 OF Poovar Police Station, Thiruvananthapuram
AGAINST THE ORDER/JUDGMENTBail Appl. 7616/2021 OF HIGH COURT
OF KERALA
PETITIONER/S:
RAHUL R. NAIR
AGED 27 YEARS
S/O. RAJAPPAN NAIR,
ASWATHY BHAVAN, THOTTUMUKKU, AMBOORI, VAZHICHAL
DESAM,
THIRUVANANTHAPURAM, PIN - 695125
BY ADV SASTHAMANGALAM S. AJITHKUMAR
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
BY ADVS.
PUBLIC PROSECUTOR
ADDL.DIRECTOR GENERAL OF PROSECUTION(AG-11)
OTHER PRESENT:
SRI.GRASHIOUS KURIAKOSE, ADGP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
26.07.2022, THE COURT ON 27.7.2022 DELIVERED THE FOLLOWING:
BAIL APPL. NO. 5267 OF 2022 2
P.V.KUNHIKRISHNAN, J
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B.A. No.5267 of 2022
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Dated this the 27th day of July, 2022
ORDER
This Bail Application is filed under Section 439 of Criminal Procedure Code.
2. Petitioner is the 2nd accused in Crime No. 723 of 2019 of Poovar Police Station, Thiruvananthapuram District. The above case is charge sheeted against the petitioner and others alleging offences punishable under Secs. 120(B), 302, 201, 364 r/w section 34 of the IPC. The case is now pending as SC No.20/2020 before the Additional District and Sessions Judge- V, Thiruvananthapuram. This is the 3rd bail application filed by the petitioner.
3. The prosecution case is that all the accused entered into a criminal conspiracy on multiple days after the 1 st accused BAIL APPL. NO. 5267 OF 2022 3 came home for vacation leave on 29.5.2019 and gathered in the verandah of the new built house of the 1st accused near Thattamukku Junction, Vazhichal Village with the intention to abduct and to cause death of Rakhimol and also to cause disappearance of evidence with respect to commission of the offence. Accordingly on 21.6.2019 at about 7 pm, in furtherance of their common intention, they abducted the said Rakhimol in a car bearing registration No.TN 72-AH-4524 near Neyyattinkara bus stand with the intention to commit murder of the said Rakhimol and on the same day at about 8 pm, in furtherance of their common intention, they wrongfully restrained the said Rakhimol in the car and made criminal intimidation towards her by threatening with the intent to cause death and committed murder of Rakhimol while travelling in the car by sitting 1st accused on back seat of the said car just behind her and strangulating her neck with his right forearm and thereafter, the 1st accused strangulated her neck with seat BAIL APPL. NO. 5267 OF 2022 4 belt of the car and intentionally caused death of Rakhimol. It is also the case of the prosecution that when they reached near to the newly constructed house of the 1st accused, the car was stopped and when she had created some sound, the 2nd accused, who was in the driver's seat had accelerated the engine of the car so as to sink her sound and thereafter, with the help of 3rd accused, the 1st and 2nd accused removed the body from the car and stripped her dresses and put the body into a pit and dropped crystals of salt over the dead body and buried her and planted a sapling there and thereby committed the offence of murder. It is further alleged that in furtherance of their common intention and with intention of causing disappearance of evidence, on 21.6.2019, the 2nd and 3rd accused went to their own houses after committing murder and after bath, changed their dress and the 1st accused had taken the car to the courtyard and washed the interior of the car and wrapped the dress of Rakhimol in a plastic cover and the 2 nd BAIL APPL. NO. 5267 OF 2022 5 accused had taken the shoes of Rakhimol and thrown it to the rubber estate. All the accused travelled in the said car and on the way when reached near Neyyar dam site, thrown away the bakery items brought by Rakhimol and when reached near Vettamukku, thrown away the dress worn by Rakhimol at the time of the incident and when they reached Thambanoor, the 1st accused entrusted them the bag, dress and mobile phone of Rakhimol and 2nd and 3rd accused get out of the car and 1 st accused alone returned from there in the car and when reached near MS Fuels Bharath Petrol Pump, Anchuthenghumoodu thrown away small bag belonging to Rakhimol. The 2nd accused and 3rd accused had gone to Guruvayoor in a bus and placed the bag belonging to Rakhimol on the rack side of the bus and when reached the bus reached at Sree Krishnapuram, 2nd accused and 3rd accused get off the bus and thrown away the bag containing the dress belonging to Rakhimol in a gutter in front of Sree Krishnapuram School and destroyed the sim card BAIL APPL. NO. 5267 OF 2022 6 and thereby committed the offences alleged.
4. The prosecution further alleged that the 1st accused committed rape on Rakhimol by making her believe that he would marry her and taking her to various places on several days after 2014 and before February 2017 and thereby committed the offences punishable under Sec.376 IPC.
5. Heard the learned counsel for the petitioner and the Addl. Director General of Prosecution (ADGP).
6. The counsel for the petitioner submitted that the petitioner is in custody for the last three years, and he was arrested on 27.7.2019. The counsel submitted that major part of the trial is over and now, the prosecution want to adduce scientific evidence by examining scientific experts. At this stage, a careful study and elaborate preparation is necessary from the defence side. For that purpose, the assistance of the accused in this case is necessary. It is the case of the counsel that without the help of the accused, the BAIL APPL. NO. 5267 OF 2022 7 defence counsel will not be able to effectively prepare the defence of the accused and adduce proper and effective defence for the accused. The counsel submitted that the 2 nd accused alone is filing the bail application because at least one of the accused is necessary for discussion with the defence counsel on a day to day basis.
7. The counsel also relied the latest judgment of the Apex Court in Satender Kumar Antil v. Central Bureau of Investigation and anr. [2022 (4) KHC 570] in which the Apex Court reiterated the principle that the bail is the rule and jail is the exception.
8. The ADGP on the other hand, seriously opposed the bail application. The ADGP submitted that about 44 witnesses were already examined. The remaining witnesses includes mahazar witnesses and official witnesses. The trial court is trying to dispose the case within the time frame fixed by this Court for final disposal. The ADGP submitted that if the BAIL APPL. NO. 5267 OF 2022 8 petitioner is released on bail, he will influence the mahazar witnesses. ADGP submitted the details of the witnesses to be examined and their relevancy in the case. The ADGP submitted that the petitioner may not be released on bail at this stage.
9. When this bail application came up for consideration, this Court directed the Registry to get a report from the lower court about the stage of the trial and the time required to complete the trial. The trial court forwarded a report dated 14.07.2022. The trial court in the report submitted that the time fixed by this Court for disposal of the case will expire on 22.10.2022. The learned Presiding Officer also stated that earnest efforts are taking to complete the trial within the period. But the learned Judge is not sure whether the trial will be over on or before 22.10.2022. It will be beneficial to extract the relevant portion of the report.
"The Hon'ble High Court already required a time bound disposal of this case and now the time got extended for a further period of 8 months, as per the order under reference BAIL APPL. NO. 5267 OF 2022 9 No.2, which will expire on 22.10.2022. This Court is having of 294 Sessions cases, of which 99, including 73 murder cases, are 5+ year old and a total pendency of 1449 cases. Despite the preferences to such old cases, this court is taking earnest effort to comply with the time limit directions and the matters beyond the court's control delaying the pace, which may probably compel this court to seek for further extension at appropriate time.
This report is submitted for kind consideration."
10. This Court considered the contentions of the petitioner and the learned Additional Director General of Prosecution (ADGP). It is a settled position that the bail is the rule and the jail is the exception. The allegation against the petitioner in this case is very serious and that is why this Court refused to grant bail at the crime stage and even after the final report is filed. But now the petitioner is in custody for the last three years. The main contention raised by the petitioner is that the defence counsel who is appearing for him need some assistance because now the examination of expert witnesses are scheduled. For a proper understanding of the case to BAIL APPL. NO. 5267 OF 2022 10 prepare for the examination of the experts, the assistance of the petitioner is necessary is the contention. This Court cannot ignore the above contention. A fair trial is a right of the accused. The petitioner is in custody for the last three years as an under-trial prisoner. It is true that the allegation against the petitioner is very serious. The 1st accused is the main culprit in this case and the allegation against the petitioner is that he is also actively involved in the murder. Even then, I am not in a position to forget the fact that the petitioner is an under trial prisoner for the last three years. Comparing to the allegations against the other accused, the allegation against the petitioner is somewhat different. Of course, the petitioner is implicated with the aid of Section 34 IPC. Even then, the indefinite incarceration of the petitioner as an under-trial prisoner is unnecessary.
11. The main apprehension of the prosecution is that if the petitioner is released on bail, he will influence the BAIL APPL. NO. 5267 OF 2022 11 remaining witnesses. Admittedly, the remaining witnesses are only mahazar witnesses. The ADGP submitted that the witnesses are close relatives of the petitioner. If that be so, the petitioner can influence those witnesses even if he is in jail. That alone is not a ground to reject the bail application of the petitioner, especially taking into consideration of the fact that the petitioner is an under-trial prisoner for the last three years. Taking into consideration the entire facts and circumstances of the case, I am of the opinion that the petitioner can be released on bail on stringent conditions. But I make it clear that the benefit of this order will not get any right to get bail to the other accused. If any bail application is filed by the other accused, the same will be considered in accordance to law, untrammeled by any observation in this order.
12. It is a well accepted principle that the bail is the rule and the jail is the exception. The Hon'ble Supreme Court in Chidambaram. P v Directorate of Enforcement (2019 BAIL APPL. NO. 5267 OF 2022 12 (16) SCALE 870), after considering all the earlier judgments, observed that, the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial.
Considering the dictum laid down in the above decision and considering the facts and circumstances of this case, this Bail Application is allowed with the following directions:
1. Petitioner shall be released on bail on executing a bond for Rs.1,00,000/- (Rupees one lakh only) with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court.
2. Petitioner shall not leave India without permission of the jurisdictional Court.
3. Petitioner shall not commit an offence similar to the offence of which he is accused, BAIL APPL. NO. 5267 OF 2022 13 or suspected, of the commission of which he is suspected.
4. The petitioner shall not influence the witnesses in the case.
5. The petitioner will appear before the trial court as and when required.
6. If any of the above conditions are violated by the petitioner, the jurisdictional Court can cancel the bail in accordance to law, even though the bail is granted by this Court. The prosecution and the victim are at liberty to approach the jurisdictional court to cancel the bail, if there is any violation of the above conditions.
6. I make it clear that the benefit of this order will not get any right to get bail to the other accused. If any bail application is filed BAIL APPL. NO. 5267 OF 2022 14 by the other accused, the same will be considered in accordance to law, untrammeled by any observation in this order.
Sd/-
P.V.KUNHIKRISHNAN JUDGE SKS DAS