Kerala High Court

Prasanth T vs State Of Kerala on 23 November, 2021

BAIL APPL. NO. 8463 OF 2021      1



              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
                    BAIL APPL. NO. 8463 OF 2021
    AGAINST    SC 845/2020 OF II ADDITIONAL DISTRICT COURT &
                       SESSIONS COURT, KOLLAM


PETITIONER/ACCUSED :


           PRASANTH T
           AGED 33 YEARS
           S/O SREEDHARAN NAMBIAR,
           THODUVAYIL HOUSE,
           CHANGAROTH P.O,
           PERUVANNAMUZHI,
           KOZHIKODE-673541.

           BY ADV P.JERIL BABU




RESPONDENT/CLAIMANT & STATE :

    1      THE STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA-682031.

   **2     ADDL. R2

           SMT. VIJAYALEKSHMI
           AGED 65 YEARS, W/O SIVADASAN PILLAI, SREE VIHAR,
           NADUVILAKKARA, MUKHATHALA, PIN-691577

           IS IMPLEADED AS ADDL. R2 AS PER ORDER DATED
           23.11.2021 IN CRL.M.A. NO.1 OF 2021.


           BY ADVS.

           SRI. C.K. SURESH, SR. PP.
 BAIL APPL. NO. 8463 OF 2021   2

         SRI.   S.RAJEEV
         SRI.   V.VINAY
         SRI.   M.S.ANEER
         SRI.   SARATH K.P.
         SRI.   K.K.DHEERENDRAKRISHNAN



     THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 8463 OF 2021           3



                                    ORDER

This application for regular bail is filed under Section 439 of the Code of

Criminal Procedure by the sole accused in S.C.No.845/2020 on the file of the

Additional Sessions Court - II, Kollam. In the aforesaid case, the accused

faces indictment for having committed offence punishable under Sections 302

and 301 of the IPC.

2. The victim is a lady with whom the petitioner was having close

acquaintance. The prosecution alleges that the victim was abducted by the

applicant on 17.03.2020 from Kallumthazham, Kollam in his car bearing

registration No. KL 51 B 4404 by offering companionship and mental support.

She was taken to Palakkad and they are alleged to have stayed in the house

taken on lease by the applicant from 17.03.2020 to 20.03.2020. The

prosecution alleges that the petitioner strangulated her with a wire and

thereafter caused multiple blunt injuries on her chest and murdered her.

With a view to wipe off the evidence, the petitioner is stated to have chopped

off the legs of the victim and thereafter, burnt the remnants and buried the

same in the nearby property. It is further alleged that the accused managed

to siphon off an amount to the tune of Rs.2,56,000/-(Rupees Two lakhs fifty

six thousand only). He is alleged to have taken some gold ornaments from

the body of the corpse as well. Investigation was completed and the final

report was laid before the jurisdictional court.

3. Sri.Jeril Babu. P., the learned counsel appearing for the applicant

submitted that the applicant had earlier approached this Court and by

Annexure-A1 judgment, the application for bail was dismissed. However,

while dismissing the prayer, the trial court was directed to expedite the trial

proceedings and take the matter to its logical conclusion at the earliest. It is

submitted by the learned counsel that though the said order was passed

almost a year back, nothing further has transpired. The applicant got

afflicted with COVID-19 and his health condition is bad. It is further

submitted that the applicant had undergone major surgeries in the year 2010

and this has also taken a toll on his health. His aged parents are left in the

lurch and without his support. It is further submitted that as many as 92

witnesses have been cited, most of whom are residing in other Districts.

Even if the trial were to commence, there is no possibility of the same being

concluded in the near future. It is further submitted that the petitioner has

been in custody from 29.4.2020 and it would not be in the interest of justice

to keep him under incarceration for a further period. According to the

learned counsel, stringent conditions can be imposed by this Court to ensure

that the petitioner would not tamper with the evidence or influence the

witnesses. The learned counsel urged that a person on bail has a better

chance to prepare or present his case than one in custody. Relying on the

decision of the Apex Court in G.Narasimhulu v. Public Prosecutor [AIR 1978

SC 429], it was contended that the requirement for bail is to secure the

attendance of the prisoner and it is the duty of the court to admit the accused

to bail, wherever practical unless there are strong grounds for supposing that

such person will not appear to take the trial. The learned counsel has also

referred to the decision of the Apex court in Dataram Singh v. State of Uttar

Pradesh [2018 (3) SCC 22] and it is argued that while considering an

application for bail, this Court should not be carried away by the severity of

the accusations. He would also place heavy reliance on the decision of the

Apex Court in State of Kerala v. Raneef [(2011) 1 SCC 784] and it is argued

that when under-trial prisoners are detained in jail custody for an indefinite

period, Article 21 of the Constitution is violated. The long period of detention

undergone by the applicant is highlighted by the learned counsel to persuade

this Court to release him on stringent conditions.

4. Sri.C.K.Sureshkumar, the learned Public Prosecutor, has opposed

the prayer. It is submitted that this Court while dismissing the earlier

application had considered the nature and gravity of the allegations, the

severity of the injuries inflicted, the materials in support thereof, the role

attributed, the antecedents and the likelihood of the applicant getting

involved himself in other crimes and the possible apprehension of the

applicant influencing and terrorizing the witnesses were taken note of while

dismissing the earlier application. According to the learned Public Prosecutor,

pursuant to directions issued by this Court, the learned Sessions Judge had

scheduled the case for trial and the charge has also been framed. The

learned Public Prosecutor would also highlight the various facets of the case

to bring home the point that the release of the applicant on bail would be

detrimental to a free and fair trial.

5. Sri. S. Rajeev, the learned counsel appeared for the de facto

complainant had opposed the request of the petitioner for grant of bail. It is

submitted by the learned counsel that the petitioner had challenged the order

refusing bail before the Hon'ble Supreme Court and by Annexure-R2(a) order

dated 20.4.2021, the Special Leave to Appeal (Criminal) was rejected. It is

submitted that there is no change of circumstances to take a different view

now. The learned counsel has also submitted that a Special Public Prosecutor

has been appointed to conduct the trial and in that view of the matter, the

apprehension of the petitioner that the trial would be delayed has no basis.

6. I have considered the submissions advanced.

7. The records made available reveals that the applicant had

induced a young lady by feigning love and she was taken to a rented house

at Palakkad. She was brutally murdered and her legs were chopped off. The

medical certificate reveals that she had suffered rib fracture as well. She was

burned and the remnants were buried in a property just behind the house of

the applicant. The prosecution has cited several witnesses to prove the case

against the applicant herein. The main apprehension of the prosecution is

that the applicant would influence the witnesses and terrorize them. While

dismissing the earlier application, this Court took note of the serious nature of

the allegations levelled against the applicant and the reasonable

apprehension of the prosecution that if released on bail, the applicant would

manage to influence the witnesses and tamper with the evidence. This Court

had also considered 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. This Court had also taken note of the

observations made by the Apex Court in Mahipal v. Rajesh Kumar @ Polia and

Another (2020 (2) SCC 118), wherein it was held that an appropriate balance

between public interest in the administration of justice and the protection of

individual liberty has to be struck pending adjudication of the case.

8. In view of the submission of the learned counsel that despite the

directions issued by this Court, the trial had not proceeded one step further, a

report was called for from the learned Sessions Judge. In the report, it is

stated as follows:

" I may most respectfully submit that the counsel for the accused

was not present on 12.11.2021 and hence hearing on charge u/s

227 of Cr.P. adjourned. Subsequently, on 20.11.2021, both sides

were heard on the question of discharge and this court proceeded

to frame a charge against the accused.

The accused produced today. Charge framed, read over to the

accused in Malayalam and he pleaded not guilty. The trial in this

case scheduled to begin from 10.12.2021. There are 92

witnesses cited by the prosecution.

This court closing for Christman vacation on 23.12.2021. If

permission is granted for conducting trial during the Christmas

vacation, the trial could be concluded within 2 months.

Hence, I most respectfully request to grant permission to conduct

trial of SC.No.845/2020 during Christmas Vacation, the periods

from 24th to 31st of December, 2021."

9. From the report it is obvious that all steps are being taken by the

trial court to expedite the proceedings.

10. I agree with the learned counsel appearing for the applicant that

the delay that has occurred in commencing the trial cannot solely be

attributed to the applicant. The restrictions imposed in view of the pandemic

has been lifted and trial can commence without delay. Though the period of

incarceration undergone by the applicant cannot be ignored, this Court

cannot be unmindful of the severe nature of the accusation and the

apprehension expressed by the prosecution cannot be brushed aside. This is

a case in which the applicant had murdered a lady in a brutal manner. As

held by the Apex Court in Ram Govind Upadhyay v. Sudarshan Singh (AIR

2002 SC 1475), while the liberty of an individual is precious and there should

always be an all-round effort on the part of Courts to protect such liberties of

individuals, but this protection can be made available to the deserving ones

only. Liberty is to be secured through a process of law, which is administered

keeping in mind the interest of the accused, the near and dear of the victim

and also the collective interest of the community in order to ensure that

parties do not lose faith in the institution and indulge in private retribution.

11. In Ash Mohammad v. Shiv Raj Singh @ Lalla Babu and Anr., the

Apex Court while dealing with individual liberty and cry of the society for

justice has opined as under:

"It is also to be kept in mind that individual liberty cannot be

accentuated to such an extent or elevated to such a high

pedestal which would bring in anarchy or disorder in the

society. The prospect of greater justice requires that law and

order should prevail in a civilized milieu. True it is, there can

be no arithmetical formula for fixing the parameters in precise

exactitude but the adjudication should express not only

application of mind but also exercise of jurisdiction on

accepted and established norms. Law and order in a society

protect the established precepts and see to it that contagious

crimes do not become epidemic. In an organized society the

concept of liberty basically requires citizens to be responsible

and not to disturb the tranquility and safety which every well -

meaning person desires.

19. We are absolutely conscious that liberty is a greatly

cherished value in the life of an individual, and no one would

like to barter it for all the tea in China, but it is obligatory on

the part of court to scan and scrutinize, though briefly, as

regards the prima facie case, the seriousness and gravity of

the crime and the potentiality of the accused to tamper with

the evidence apart from other aspects before the restriction

on liberty is lifted on imposition of certain conditions."