Kerala High Court

Amalraj M vs State Of Kerala on 24 June, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                   PRESENT
                  THE HONOURABLE MR. JUSTICE K.HARIPAL
         THURSDAY, THE 24TH DAY OF JUNE 2021 / 3RD ASHADHA, 1943
                         BAIL APPL. NO. 4622 OF 2021
  AGAINST THE ORDER/JUDGMENT IN SC 342/2001 OF ADDITIONAL DISTRICT
                        COURT - II, THALASSERY, KANNUR
    CRIME NO.257/2020 OF KANNAVAM POLICE STATION, KANNUR DISTRICT


PETITIONERS:

     1       AMALRAJ M.,
             AGED 20 YEARS
             S/O.RAJAN, PALLIYATHA NAHIL,
             MANNATHERI AMSOM, CHUNDAYIL, KANNUR.

     2       RASHIL
             AGED 24 YEARS, S/O.RAVEENDRAN,
             P.K.NIVAS, MANANTHERI AMSOM,
             CHUNDAYIL, KANNUR.

     3       ASWIN C.P.
             AGED 23 YEARS, GANGA NIVAS,
             KANNAVAM SREENARAYANA MADAM ROAD,
             SHIVAJI NAGAR, KANNUR.

     4       MITHUN P.P. @ KUTTAPAI
             AGED 22 YEARS, S/O.RAMESAN,
             PULIYULLA PARAMBIL HOUSE,
             KUNNUMEL, CHENDAYAD.

     5       RAHUL K.
             AGED 25 YEARS,
             S/O.GANGADHARAN, SAGIL NIVAS,
             KOLAYAD AMSOM, PADIPARAMBA.

             BY ADVS.
                     S.RAJEEV
                     K.K.DHEERENDRAKRISHNAN
                     V.VINAY
                     M.S.ANEER
 BAIL APPL. NO. 4622 OF 2021
                                   -2-



RESPONDENT:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA - 682031
             (CRIME NO.257/2020 OF KANNAVAM POLICE STATION,
             KANNUR DISTRICT).

             BY SMT. SREEJA V., PUBLIC PROSECUTOR


    THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
24.06.2021,     THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 BAIL APPL. NO. 4622 OF 2021
                                   -3-




                                 ORDER

This is an application for regular bail filed under Section 439

of the Criminal Procedure Code moved by accused Nos.1 to 4

and 7 in crime No.257/2020 of Kannavam Police Station in

Kannur District.

2. The petitioners along with seven others face

allegations for offences punishable under Sections 120B, 143,

147, 148, 341 and 302 read with Section 149 IPC and also

Sections 25 and 27 of the Arms Act.

3. The alleged incident had happened on 08.09.2020.

The precise allegation is that while deceased Muhammed

Salahudheen was travelling in a car, all the accused persons

after hatching a conspiracy and in prosecution of their common

object, way laid him on the road and hacked him to death.

Accused Nos.1 and 2 were arrested on 21.09.2020 and accused

Nos.3, 4 and 7 are in judicial custody from 25.10.2020.

Meanwhile, on completion of investigation, charge sheet has BAIL APPL. NO. 4622 OF 2021

already been laid. On committal, the case has been taken on file

as S.C.342/2021, pending trial before the Additional District

Court-II, Thalassery.

4. The learned counsel for the petitioners submitted that

there is absolutely no justification in detaining the petitioners in

custody eventhough charge sheet has already been laid. In the

pandemic condition, commencement of trial cannot be expected

soon. The petitioners are in judicial custody for more than eight

months. The contention that the safety of the petitioners itself is

in peril, has no justification for denying bail. When an

application for bail moved by accused Nos.8, 9 and 10 was

considered, this aspect was noticed by this Court in Annexure-I

order dated 23.02.2021. Similarly, 5th accused also has been

released on bail. In the pandemic situation, petitioners cannot

expect that the case will be put to trial in the near future and

therefore, their indefinite detention is a violation of the

constitutional principles of fair trial.

BAIL APPL. NO. 4622 OF 2021

5. I heard the learned Public Prosecutor also. The

learned Public Prosecutor pointed out that it is a political crime.

The deceased Muhammed Salahudheen was waylaid by the

petitioners and others while he was moving in a car and was

hacked to death. The said Muhammed Salahudheen was the 7th

accused in the murder of one Shyamaprasad, an ABVP activist;

Muhammed Salahudheen was an activist of the SDPI. Animosity

between these two political parties is live in the air; if the

petitioners are released on bail, retaliatory attacks by the SDPI

activists against the petitioners cannot be ruled out which may

lead to law and order situation in the area. Moreover, having

regard to the political background of the petitioners, if they are

released on bail, the chances of a fair trial are remote.

6. As noticed earlier, the petitioners are accused Nos.1 to

4 and 7 in the said crime. On completion of investigation,

charge sheet has already been laid and the case has reached the

trial court on committal. The petitioners moved this Court after

they had moved a similar application before the trial court. The BAIL APPL. NO. 4622 OF 2021

trial court dismissed the petition on the twin considerations that

if the application is allowed, a fair trial may not be possible;

secondly, the court is sceptical about the personal safety of the

petitioners, in view of the Intelligence/Special Branch report.

7. The petitioners are the accused in a murder case

occured in Kannur, which is the hotbed of political crimes and

series of murders. It is stated that they were attacking and

killing one Salahudheen, an activists of the SDPI, in retaliation of

an earlier murder case of one of their activists. The said

Salahudheen was the 7th accused in that crime. Anyhow, bail is

the rule and jail is the exception. Bail can be denied to an

accused only on valid and convincing considerations. Here,

investigation is already over and final report has been laid.

Except accused Nos.6, 11 and 12, who are at large, all have

been brought to book. This Court by separate order has granted

bail to accused Nos.8, 9 and 10 by order dated 23.02.2021 in

B.A.No.400/2021. Similarly, by order dated 24.05.2021, 5 th

accused has already been granted bail vide B.A.No.3600/2021. BAIL APPL. NO. 4622 OF 2021

8. It is not known as to how release of petitioners would

obstruct a fair trial, especially when all the materials have been

collected and produced before the court. Moreover, any such

apprehension can be guarded against them by imposing

appropriate conditions.

9. Of course, the personal safety of the petitioners is a

concern of the State. That also can be taken care of by imposing

appropriate conditions, as done by this Court in the order dated

23.02.2021.

10. No hard and fast rules are there regarding grant or

refusal of bail. Each case has to be considered on its own merits,

calling for judicial exercise of the discretion of the court. Since

the law presumes an accused innocent till his guilt is proved, he

must be allowed opportunity to look after his own case unless

circumstances are such that he should not be released on bail.

The principle consideration to guide the court is the probability of

the accused appearing to take his trial and not his supposed guilt

or innocence. Even though the considerations weighed with by BAIL APPL. NO. 4622 OF 2021

the trial court are also relevant, in the present scenario, when

the pandemic has affected each activity of human life and since

even the Apex Court has issued guidelines for easing the

crowding of jails, there is no justification in the petitioners being

detained.

The court also take notice of the fact that in the pandemic

situation, we are unable to predict as to when matters would

limp back to normally and the court will be able to proceed to

trial. In this backdrop, it is only expedient to grant bail to the

petitioners as well, imposing appropriate conditions:

i) The petitioners shall execute a bond for Rs.1,00,000/-(Rupees One Lakh only) each, with two solvent sureties each for the like sum to the satisfaction of the trial court;