Kerala High Court

Rahul R. Nair vs State Of Kerala on 27 July, 2022

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
                  --------------------------------------------
                          B.A. No.5267 of 2022
                     --------------------------------------
                 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

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

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

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

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

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

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

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

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

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

(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,

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

by the other accused, the same will be

considered in accordance to law,

untrammeled by any observation in this

order.