Kerala High Court

Shabin Ashraf vs State Of Kerala on 10 August, 2022

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
  WEDNESDAY, THE 10TH DAY OF AUGUST 2022 / 19TH SRAVANA, 1944
                    BAIL APPL. NO. 5493 OF 2022
CRMP 1032/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR
            CRIME NO.280/2022 OF NILAMBUR POLICESTATION
PETITIONER/1ST ACCUSED:

            SHABIN ASHRAF
            AGED 34 YEARS,S/O. ASHRAF, KAIPPANJERI HOUSE,
            MUKKATTA, NILAMBUR, MALAPPURAM DISTRICT
            BY ADVS.
            P.K.BABU
            T.ANCY

RESPONDENT/STATE:

    1       STATE OF KERALA
            REP. BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, KOCHI - 682031
    2       THE STATION HOUSE OFFICER
            NILAMBUR POLICE STATION,
            KOZHIKODE - NILAMBUR - GUDALUR ROAD, NILAMBUR,
            MALAPPURAM DISTRICT - 679331



            R1 & R2 ADDL.PP SRI.P.NARAYANAN


        THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BA No.5493 of 2022                           2




                              VIJU ABRAHAM, J.
              .................................................................
                             B.A.No. 5493 of 2022
              .................................................................
               Dated this the 10th day of August, 2022

                                       ORDER

This is an application for regular bail.

2. Petitioner is the lst accused in Crime No.280 of 2022 of

Nilambur Police Station registered alleging offences punishable under

Sections 365, 344, 302 and 201 read with Section 34 of the Indian

Penal Code.

3. The prosecution case, in brief, is that on some day in the

month of August 2019 accused Nos.1 to 7 abducted one Shaba

Shareef, a resident of Rajeev Nagar, Mysore and wrongfully

restrained him at the house belonging to the lst accused at Mukkatta,

where he was beaten up to extract secret information from him

regarding his ancestral treatment method. Later, someday in October

2020 at night accused Nos.1 and 2 along with accused Nos.8 and 9

killed the said Shaba Shareef and chopped his body into pieces and

threw in the river from Seethi Haji bridge at Edavanna. Thus, the

accused persons committed the aforesaid offences.

4. Petitioner submits that he is in custody from 10.05.2022

and that the petitioner is totally innocent of the allegations levelled

against him and he is falsely implicated in the above crime due to

mistaken identity and that the petitioner has no involvement

whatsoever in the above crime. Even though the petitioner moved an

application for bail before this court filing B.A. No. 3919 of 2022, the

same was dismissed as per Annexure A2 order dated 03.06.2022.

5. The petitioner raised multiple contentions in support of

his request for grant of bail. It is contended that the petitioner is a

kidney failure patient and one of his kidneys has been transplanted

as is evident from Annexures A3, A4, A6 and A15. It is further

contended that the prosecution allegations that a person has been

abducted in 2018 and restrained in a house and later in 2020 he was

murdered without even the neighbours knowing about the same are

unbelievable. The motive alleged i.e., the deceased was kidnapped

for getting secret formula for the treatment of piles is also an

unbelievable story in as much as petitioner is a businessman and has

sufficient money for his livelihood. The evidence so far collected

including the pendrive has no evidentiary value. It is settled law that

even at the time of granting bail the court has to consider the prima

facie case and the allegation levelled against the accused. It is

settled law that bail is the rule and jail is the exception and that the

petitioner is entitled to such a consideration. The petitioner is roamed

in this case only on the basis of the statement given by the accused

in a dacoity case i.e., Crime No. 255 of 2022 which cannot be

believed at all. There were disputes between the accused in the said

crime and the petitioner regarding demand of salary and sharing of

profit in business. The alleged recovery if any will not connect the

petitioner with the alleged crime. Petitioner also relies on the

judgment of the Apex Court in Sanjay Chandra v. CBI (2012) 1 SCC

40), Arnab Manoranjan Goswami v. The State of Maharashtra

(Criminal Appeal No.742 of 2020 dated 27.11.2020), Vaman

Narayan v. State of Rajasthan (2009) 2 SCC 281, Gudikanti

Narasimhulu and others v. Public Prosecutor, High Court of

Andhra Pradesh (1978) 1 SCC 240 and Rampal Pithwa Rahidas

and others v. State of Maharashtra (1994) Supp 2 SCC 73) mainly

contending for the position that bail is the rule and jail is the exception

and further that a vague allegation by the prosecution that the

accused may tamper with the evidence or intimidate the witnesses

may not be a ground for refusal of bail. Petitioner has also referred to

the statements given by the prosecution witnesses and submitted

that there is nothing to connect the petitioner with the alleged

commission of the crime.

6. Learned Public Prosecutor seriously opposed the

application for bail. He further contended that the petitioner is a born

criminal and the mastermind behind the commission of this case. He

is also the prime accused in the case. The co-accused have

committed the offence as per the guidance of petitioner. On

01.08.2019 A2 abducted Shaba Shareef from Vasantha Nagar,

Mysore and on the way the petitioner and the accused persons (A1,

A3, A4, A5, A6, A7, A8) accompanied and assisted the abduction. The

petitioner(AI) arranged a room in his house at Mukkatta-Nilambur for

confining Shaba Shareef. The petitioner mentally and physically

tortured Shaba Shareef for extracting the treatment method for piles.

On 08.10.2020 the petitioner killed Shaba Shareef as he has not

disclosed the ancestral method of treatment of piles. After the

commission of the offence the petitioner (A1) along with A2, A8 and

A9 made preparation for disposing the body by using A2 and A9 they

chopped the body into pieces and packed it in carry bags. After doing

these acts, they with a view to destroy the evidence, threw the body

parts into Chaliyar river from Edavanna Seethi Haji bridge. Learned

public prosecutor also contended that the petitioner is involved in five

other cases, the details are as below:

1. Sulthan Bathery Police Station Crime No.932 of 2014

registered under Sections 143, 144, 147, 148, 342, 367,

326 and 149 IPC.

2.Kunnamangalam Police Station Crime No.382 of 2018

registered under Section 506 IPC.

3. Kunnamkulam Police Station Crime No.1032 of 2018

registered under Sections 279 and 304 (A) IPC.

4.Sulthan Bathery Police Station Crime No.456 of 2022

registered under Section 5 of Explosive Substance Act

and Section 9(B)(1)(b) Explosive Act.

5. Nilambur Police Station Crime No.422 of 22 registered

under Sections 120 B, 302 IPC.

It is submitted by the learned Public Prosecutor that it is upon the

complaint preferred by the petitioner herein crime no. 255/2022 was

registered in Nilambur Police Station on the allegation that accused

therein trespassed into his house and robbed 7 lakhs rupees, 3

laptops and 3 mobile phones. Later, A1 to A6 in the said crime except

A2 were taken into custody at Thiruvanathapuram and A2 in the said

crime was arrested on 28.04.2022. In the confession statement of

the 1st accused in the said crime, the murder of the deceased Shaba

Shareef was revealed. Thereafter the present crime was registered

suo motto by the SHO, Nilambur Police Station. Thereupon an

enquiry was conducted and found that a crime has been registered

as Crime No. 89 of 2019 at Saraswathipuram Police Station, Mysore

City, Karnataka, regarding the missing of Shaba Shareef and further

investigation was done in the matter. Learned public prosecutor

further submitted that the investigation so far conducted reveals the

active role of the petitioner in the alleged crime. The statements of

the witnesses and the materials collected during the investigation

reveal the active role of the petitioner in the alleged crime. In the

investigation it is revealed that the deceased was confined in a room

in the house of the petitioner herein and severely tortured. The

deceased was identified by his wife from the video recordings seized

by the police and that the statement of the witnesses revealed that

the petitioner had contact with the deceased and had taken others for

treatment. A knife was also seized from a house belonging to the

petitioner at Wayanad on the basis of his confession. The

investigation further revealed that accused no. 11 who is a retired

Sub Inspector is the main advisor to the petitioner and he has made

frequent visits to Gulf countries along with the petitioner and he also

has a vital role behind the criminal acts of the petitioner. It is further

submitted that A3, A7 and A11, who played a vital role in the

commission of offence are yet to be apprehended and further

recoveries are also to be effected. The offence committed by the

petitioner is of a grave nature and executed in a very brutal manner.

The petitioner is financially sound and has criminal antecedents even

including commission of offence punishable under Section 302 IPC

and if he is enlarged on bail at this stage, there is every chance for

him to abscond and also influence the witnesses and to tamper with

the evidence and therefore prayed that petitioner shall not be

enlarged on bail.

7. It is true that though in the judgments relied on by the

petitioner it has been stated that while considering the application for

bail the courts are bound to consider the fact that refusal of bail is a

restriction on the personal liberty of the individual guaranteed under

Article 21 of the Constitution of India but the Apex Court has time and

again reminded about the facts to be born in mind while considering

an application for bail which has been summarized in Prasanta

Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 as follows:

"9.............. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

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

(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."

[See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21 : 2005 SCC (Cri)

1960 (2)] (SCC p. 31, para 18), Prahlad Singh Bhati v. NCT, Delhi (2001) 4

SCC 280 : 2001 SCC (Cri) 674] , and Ram Govind Upadhyay v.

Sudarshan Singh (2002) 3 SCC 598].

8. Learned Public Prosecutor relying on the decision in

P.....v. State of Madhya Pradesh, 2022 SCC OnLine SC 552,

contended that the abovesaid parameters fixed by the Apex Court will

definitely disentitle the petitioner for grant of a bail at this stage.

Considering the fact that the investigation is going on and

further that few other accused are yet to be apprehended and further

that the petitioner is involved in five other cases of which one is a

case alleging commission of offence punishable under Section 302

IPC, I feel that the apprehensions raised by the learned Public

Prosecutor cannot be brushed aside. As regards the contentions

raised on the basis of the serious health condition of the petitioner,

while considering the earlier bail application which was disposed of as