Najeeb vs State Of Kerala
2021 Latest Caselaw 12170 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                THE HONOURABLE MR. JUSTICE ASHOK MENON

   THURSDAY, THE 22ND DAY OF APRIL 2021 / 2ND VAISAKHA, 1943

                      Bail Appl..No.1317 OF 2021

AGAINST THE ORDER/JUDGMENT IN CRMC 102/2021 DATED 27-01-2021 OF
          DISTRICT COURT & SESSIONS COURT,TRIVANDRUM

      CRIME NO.2414/2020 OF Venjaramoodu Police Station ,
                       Thiruvananthapuram


PETITIONER/S:

                NAJEEB
                AGED 41 YEARS
                S/O. ALIRARUKUNJU,
                RESIDING AT ROADARIKATHUVEEDU,
                MARUTHUMOODU,PULLAMPARA VILLAGE,
                THIRUVANANTHAPURAM.
                689691

                BY ADV. SHRI.SASTHAMANGALAM S. AJITHKUMAR

RESPONDENT/S:

                STATE OF KERALA
                REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
                KERALA
                682031

                R1 BY PUBLIC PROSECUTOR
                R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION

OTHER PRESENT:

                SR.PP- SRI. C.K.SURESHKUMAR

     THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD             ON
17.02.2021, THE COURT ON 22.04.2021 PASSED THE FOLLOWING:
 BA No.1317/2021

                                    2




                           O R D E R

Dated this the 22nd day of April 2021

Third successive application for regular bail under Section

439 Cr.P.C.

2. The applicant is the 8th accused in Crime

No.2414/2020 of Venjaramood Police Station,

Thiruvananthapuram, for having allegedly committed offences

punishable under Sections 120B, 143, 147, 148, 341, 294(b),

223, 224, 302, 109, 201 and 212 r/w Section 149 of the IPC,

and also under Section 27 of the Arms Act.

3. The prosecution case, in brief, is that because of

political enmity towards the deceased persons, namely Mithilaj

and Haq Muhammed, who belong to the DYFI, on 30.08.2020, BA No.1317/2021

accused Nos.1 to 7 allegedly entered into a conspiracy to

eliminate them as they were gaining popularity and political

ground in that locality. Therefore, out of political rivalry, the

accused who belong to a rival political group, hatched a

conspiracy and as determined, accused 1 to 3 reached

Thembamoodu Junction at Pullampara village at about 11 p.m

on two motorcycles, one of which was owned by accused No.2

and the other belonged to the applicant herein. They lay in

wait for the deceased to arrive. A short while thereafter, the

informant accompanied by the two deceased reached there on

a motorcycle. A1 to A3 accosted them. They were wrongfully

restrained, hurled with abuses, and a scuffle ensued, as a

result of which, A2 allegedly chopped Haq Muhammed on his BA No.1317/2021

head with a chopper and the 1st accused stabbed Mithilaj with

a knife. Both of them sustained fatal injuries, fell down on the

road. When Haq Muhammed attempted to escape from the

scene, accused 1 to 3 chased him and caused fatal injuries

again with a chopper, knife and sword. The people in the

locality were drawn to the scene and they moved the injured

Mithilaj and Haq Muhammed to the hospital, where they

succumbed to their injuries. While fleeing from the scene after

the assault, the first accused left behind the motorcycle

belonging to the applicant bearing Reg. No.KL 21/K-4201.

Thereafter, he hatched a conspiracy with the applicant and as

per the instructions given by the 1st accused, the applicant

went to the scene of occurrence and stealthily removed the BA No.1317/2021

keys to the motorcycle, thereby caused the disappearance of

the evidence. It is indicated that the applicant had aided

accused 1 to 3 to commit the offence and also to escape from

the scene. Accused No.9 had allegedly harboured accused 1

and 2 and also arranged money and vehicle to facilitate them

for escaping to a safe place.

4. The applicant was arrested on 01.09.2020 and

remanded to judicial custody. He continues to remain in

custody. The bail application filed by him before the Sessions

court was dismissed and therefore he has approached this

Court for indulgence, stating that he does not have any

criminal antecedents, his role is very limited, and that he

actually belongs to the same political party to which the BA No.1317/2021

deceased belong and the allegation that he had joined hands

with the other accused out of political rivalry towards the

deceased is an absolute untruth and therefore, he may be

released on bail since he has been incarcerated for a fairly long

time. The earlier applications, BA No.6457/2020 and BA No.

7106/2020, were rejected by this Court, finding that there is

an existing rivalry between the two political factions and it is

too early for the applicant to be released on bail. There is not

only a threat to the witnesses but also to the applicant himself,

since the other rival political groups are in the lookout to

retaliate. Police parties have been engaged to see that the

situation is under control. In case the applicant is released on

bail at this point in time, there is a possibility of a flare-up of BA No.1317/2021

the rivalries. There was also an impending local body election,

which prompted the prosecution to oppose the application

with vehemence.

5. Heard the learned counsel for the applicant, Sri.

Sasthamangalam S. Ajithkumar, and the learned Senior Public

Prosecutor Sri. C.K.Suresh. Case diary, Final Report and the

records perused.

6. The learned Public Prosecutor submits that there is a

very tense situation prevailing in the locality because of the

political rivalry between the two groups. There is every

possibility that the members of the group to which the

deceased belonged, may retaliate and the law and order

situation in that region may worsen. It is indicated that BA No.1317/2021

subsequent investigation revealed that the applicant had

abetted the other accused in committing the offence and

Section 109 of the IPC has also been incorporated for that

purpose. He also actively got involved in the destruction of

evidence. There is every possibility that if the applicant is

released on bail, he may attempt to intimidate or influence the

witnesses. There is also the possibility that he may flee from

justice.

7. The learned Public Prosecutor also points out that in

case the applicant is released on bail, there is every possibility

of a threat to his life also. There is also the possibility that he

may again regroup with the other members of his political

party to defend themselves or to retaliate against the rival BA No.1317/2021

faction. To prevent all these eventualities, it is only befitting

that the applicant may not be released on bail, submits the

learned Prosecutor.

8. The learned counsel for the applicant submits that the

final report has already been filed after completion of the

investigation. Hence, further detention of the applicant is

unwarranted. It is also submitted that the applicant was not

present at the scene of occurrence and the only allegation

against him is that he was part of the conspiracy and had

abetted A1 to A3 to accomplish the decision taken during the

conspiracy. Moreover, the applicant had allegedly provided his

motorcycle to A1 to facilitate reaching the scene of occurrence.

When the applicant had also allegedly removed the key from BA No.1317/2021

the motorcycle on the following day as a result of the

conspiracy with the first accused to cause destruction of

evidence. The learned counsel submits that there is little

material gathered by the prosecution to prove the conspiracies

alleged. Moreover, the 9th accused who is similarly placed and

was alleged to be part of the conspiracy and had also

facilitated the prime accused to flee and had harboured them,

was released on bail. The learned counsel would submit that

the applicant has only a lesser role in comparison to A9.

Hence, the learned counsel strenuously pleads for granting of

bail to the applicant.

9. After having considered the entire facts and

circumstances in this case, I find that the earlier bail BA No.1317/2021

applications were dismissed for two reasons. First, that the

prosecution has produced sufficient materials to prima facie

establish the complicity of the accused in the crime by being a

co-conspirator, indicted by statements of witnesses recorded

by the investigating officer, the use of the applicant's

motorcycle by A1 to reach the scene of occurrence, indicating

the involvement of the applicant in assisting the prime

accused. And the fact that the applicant had stealthily removed

the key of his motorcycle left behind by A1, after the murder.

Secondly, this court had taken serious note of the worsening

law and order situation in the locality following the incident.

The impending local body election was considered as a

possible trigger in the hostility that existed between the BA No.1317/2021

warring political groups.

10. The Hon'ble Supreme Court has held that a prolix

discussion regarding the entire evidence collected by the

prosecution against the accused need not be considered at the

stage of granting of bail. I found substance in the arguments

advanced by the learned Public Prosecutor on the two points

referred to above. I am still not going into the intricacies of the

evidence that is collected by the prosecution as against the

applicant. I would continue to hold that it is for the trial court

to decide those on merits and therefore, an opinion by this

regarding the sufficiency or otherwise of those materials at this

stage may not be appropriated. This court had while

dismissing the first application for bail held that it was too BA No.1317/2021

early for the applicant to be released on bail, considering the

law and order situation of the locality and the nascent stage of

the investigation. The application was however dismissed,

holding it does not preclude the applicant from approaching

the Sessions Court or this Court for a fresh bail on change of

circumstances after a lapse of time. When the second

application for bail was filed, the impending local body election

was taken as a point of objection by the prosecutor, and this

court had held that the election may trigger the existing

hostilities, and hence declined to grant bail.

11. The learned Prosecutor has relied upon the decision

of the Supreme Court in Kalyan Chandra Sarkar v. Rajesh

Ranjan [2004 KHC 754 : AIR 2004 SC 1866] to support his BA No.1317/2021

argument opposing the bail when successive applications are

made. The Apex Court held thus:

"11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are,

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

BA No.1317/2021

(b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the Court in support of the charge; (See Ram Govind Upadhyay v. Sudarshan Singh and Others (2002 (3) SCC 598) and Puran v. Rambilas and Another (2001 (6) SCC 338).

12. In regard to cases where earlier bail applications have been rejected there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent application for bail should be granted. (See Ram Govind Upadhyay, supra)."

The Apex court has also observed thus while considering

successive applications for bail :

BA No.1317/2021

"20. Before concluding, we must note though an accused has a right to make successive applications for grant of bail the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications. In the impugned order we do not see any such fresh ground recorded by the High Court while granting bail. It also tailed to take into consideration that at least on four occasions order refusing bail has been affirmed by this Court and subsequently when the High Court did grant bail, this Court by its order dated 26th July, 2000 cancelled the said bail by a reasoned order. From the impugned order, we do not notice any indication of the fact that the High Court took note of the grounds which persuaded this Court to cancel the bail. Such approach of the High Court, in our opinion, is violative of the principle of binding nature of judgments of superior court BA No.1317/2021

rendered in a lis between the same parties, and in effect tends to ignore and thereby render ineffective the principles enunciated therein which have a binding character."

The learned Prosecutor draws attention of this court to the

decision of the Apex court in State of Maharashtra v. Captain

Buddikota Subha Rao [1989 KHC 814 : AIR 1989 SC 2292]

wherein it was held thus:

"Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. 'Between the two orders there was a gap of only two days and it is nobody's case that during these two days drastic changes had taken place necessitating the BA No.1317/2021

release of the respondent on bail. Judicial discipline propriety and comity demanded that the 1 impugned order should not have been passed reversing all earlier orders including the one I rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact situation."

The learned Prosecutor also relies on the Full Bench decision of

this Court in Firos Ali v. State of Kerala [2016 (5) KHC 69] to

argue that subsequent application for bail by the same

accused in the same crime will be entertained only if there is a

change in circumstances for filing such application. He

submits that filing of the final report is not a change in

circumstance which would enable the applicant to seek bail.

He relies on the decision of the Supreme Court in Virupaksha

Gouda and Another v. State of Karnataka and Another [2017 BA No.1317/2021

KHC 6239 : AIR 2017 SC 1685] to submit that filing of charge

sheet does not amount to change of circumstances nor in any

manner lesser allegations made by the prosecution. I do agree

with the learned Prosecutor that the fact that the accused has

undergone a long period of incarceration by itself would not

entitle him to be enlarged on bail. (See Rajesh Ranjan Yadav @

Pappu Yadav v. CBI through its Director [2007 KHC 3002 : AIR

2007 SC 451] and Dinesh M.N. (S.P) v. State of Gujarat [2008

KHC 4583 : AIR 2008 SC 2318].

12. In Prahalad Singh Bhati v. NCT, Delhi and Another

[2001 (4) SCC 280], the Supreme Court has laid some

guidelines for granting bail as thus:

"8. The jurisdiction to grant bail has to be BA No.1317/2021

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 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 it 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 excepted, at this stage, to have the evidence establishing the guilt of the BA No.1317/2021

accused beyond reasonable doubt."

13. In Prasanta Kumar Sarkar vs. Ashis Chatterjee and

another [2010 (14) SCC 496], it has been opined that while

exercising the power for grant of bail, the court has to keep in

mind certain circumstances and factors. It is useful to

reproduce the said passage:

"9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to be believed 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;

BA No.1317/2021

(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."

14. Coming back to the facts of this case, I have already

stated the reasons why the bail applications of the applicant

was rejected on the previous two occasions. The first time, the

investigation was at a nascent stage. The second time, it was

the elections which was considered as a reason which could

flare up the hostilities between the two political groups. The

applicant has no criminal antecedent. He was not directly

involved in the murder. What is attributed is that he was the

prime conspirator and abettor of the crime. His role in the

conspiracy is sought to be proved by statements of witnesses BA No.1317/2021

who saw him handing over his motorcycle to A1 and speaking

to him about teaching a lesson to the deceased. There are also

statements of witnesses indicating that he had removed the

key from his motorcycle parked at the scene of occurrence. I

agree that conspiracy can only be proved by circumstantial

evidence. No direct evidence of conspiracy would be available,

as it is something done in secrecy.

15. A1 to A3 are the main perpetrators of the murder.

The role of the applicant in this crime is that of a conspirator

and abettor. Considering the fact that he has no antecedents

of similar nature, and there is no possibility of his fleeing from

justice, custodial trial of the applicant does not seem

imperative. Hence the application is allowed and the applicant BA No.1317/2021

is directed to be released on bail on execution of a bond for

₹50,000/- (Rupees fifty thousand only) with two solvent

sureties for like amount each to the satisfaction of the

jurisdictional Court, and on following further conditions:

1. The applicant be present before the trial Court on all

dates of postings without fail, unless specifically exempted by

the Court.

2. The applicant shall not get involved in any offences of

similar nature during the currency of the bail.

3. The applicant shall not influence or intimidate witnesses

or tamper with evidence.

4. The applicant shall not leave the State of Kerala without

prior sanction of the Court.

BA No.1317/2021

5. The applicant shall surrender his passport before the

jurisdictional Court or file an affidavit if he does not have one.

The passport shall be released to the applicant only in case the

trial Court finds it necessary to permit him to travel abroad.

Breach of any of the conditions stated above shall entail

in cancellation of bail on request being made by the Prosecutor

before the jurisdictional Court.

Sd/-

ASHOK MENON

JUDGE

jg