Kerala High Court
Beevi Kunju vs State Of Kerala on 6 June, 2024
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
BAIL APPL. NO. 3494 OF 2024
CRIME NO.213/2024 OF Kallambalam Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED 18.04.2024 IN CMP NO.2149 OF 2024
OF JUDICIAL MAGISTRATE OF FIRST CLASS - IV, ATTINGAL
PETITIONER/S:
FATHIMA BEEVI,
AGED 20 YEARS
D/O. ABDUL MAJEED, A.N. MANZIL, MUKKADA MARUTHIKUNNU
NAVAYIKULAM, THIRUVANANTHAPURAM, PIN - 695603
BY ADVS.
C.P.UDAYABHANU
NAVANEETH.N.NATH
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 STATION HOUSE OFFICER,
KALLAMBALAM POLICE STATION,THIRUVANANTHAPURAM, PIN -
695605
BY ADVS.
SRI.C.K.SURESH, SR.PUBLIC PROSECUTOR
SRI.GRACIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF
PROSECUTION
ADDL. STATE PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.06.2024, ALONG WITH Bail Appl..2586/2024, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
BAIL APPL. NOs. 3494 & 2586 OF 2024
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
THURSDAY, THE 6TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946
BAIL APPL. NO. 2586 OF 2024
CRIME NO.213/2024 OF Kallambalam Police Station,
Thiruvananthapuram
AGAINST THE ORDER/JUDGMENT DATED 19.03.2024 IN CRMC NO.661 OF
2024 OF DISTRICT COURT & SESSIONS COURT, THIRUVANANTHAPURAM
PETITIONER/S:
1 BEEVI KUNJU,AGED 52 YEARS, D/O. SOUJATH BEEVI, A.N.
MANZIL, KOONANCHALIL, MUKKU KADA,MARUTHIKUNNU.P.O.,
KUDAVOOR,THIRUVANANTHAPURAM, PIN - 695603
2 MUHAMMED SHAN,AGED 28 YEARS, S/O. SHAJAHAN,
POOVANKAL HOUSE, NADAYARA,MUTTAPALAM. P.O.,
CHEMMARUTHI VILLAGE. THIRUVANANTHAPURAM,PIN - 695145
BY ADVS.
C.P.UDAYABHANU
NAVANEETH.N.NATH
RESPONDENT/S:
1 STATE OF KERALA,REPRESENTED BY PUBLIC
PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN -
682031
2 STATION HOUSE OFFICER,KALLAMBALAM POLICE STATION,
THIRUVANANTHAPURAM, PIN - 695605
BY ADVS.
SRI.C.K.SURESH, SR.PUBLIC PROSECUTOR
SRI.GRACIOUS KURIAKOSE, ADDL.DIRECTOR GENERAL OF
PROSECUTION
ADDL. STATE PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
06.06.2024, ALONG WITH Bail Appl..3494/2024, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NOs. 3494 & 2586 OF 2024
3
COMMON ORDER
The applications are filed under Section 439 of the
Code of Criminal Procedure, 1973, by the accused in
Crime No.213/2024 of the Kallambalam Police Station,
Thiruvananthapruam, registered against the accused, for
allegedly committing the offences punishable under
Sections 323, 324, 325 and 302 r/w. Section 34 of the
Indian Penal Code (in short, 'IPC'). The accused 1 and 2
were arrested on 28.02.2024 and the 3 rd accused was
arrested on 16.04.2024. B.A.No.2586/2024 is filed by the
accused 1 and 2 and B.A.No.3494/2024 is filed by the 3 rd
accused. As the applications arise from the same crime,
they were consolidated, jointly heard and are disposed of
by this common order.
2. The gravamen of the prosecution case is that: on
20.02.2024, at around 22 hours, the accused, in
furtherance of their common intention to murder Abdul
Majeed (deceased and the husband of the 1 st accused, step
father of the 2nd accused and the father of the 3rd
BAIL APPL. NOs. 3494 & 2586 OF 2024
accused), the 1st accused hit the deceased on the back of
his head with the handle of a hoe, and the accused 2 and 3
pushed the deceased on to the floor and his head hit
against the wall. Then, the accused kicked and beat the
deceased all over his body and he suffered grievous
injuries. The deceased lost his life on 25.02.2024 at 23.30
hours at the Medical College Hospital,
Thiruvananthapuram. Thus, the accused have committed
the above offences.
3. Heard; Sri.C.P.Udayabhanu, the learned counsel
appearing for the petitioners and Sri.C.K.Suresh, the
learned Public Prosecutor.
4. The learned counsel for the petitioners
submitted that the petitioners are totally innocent of the
accusations leveled against them. A reading of the First
Information Statement and the Final Report laid by the
Investigating Officer would reveal that the offence under
Section 302 cannot be attributed against the petitioners.
In fact, in the same incident, the 2nd accused had also
BAIL APPL. NOs. 3494 & 2586 OF 2024
suffered an injury due to the assault made by the
deceased. It is an act of private defence that the 2 nd
accused had pushed the deceased on to the floor.
Therefore, the accused cannot be attributed of having
committed the murder of the deceased. The very fact that
the deceased had not specifically mentioned that the
accused had caused the injuries to him shows the
hollowness in the prosecution. The accused 1 and 2 have
been in judicial custody since 28.02.2024 and the 3 rd
accused has been in judicial custody since 16.04.2024.
The investigation in the case is complete and the final
report has been laid. The accused 1 and 3 are ladies.
Hence, the petitioners may be enlarged on bail.
5. The learned Public Prosecutor seriously opposed
the application. The Investigating Officer has filed a bail
objection report, inter alia, opposing the application. It is
stated that the 1st accused hit the deceased with the
BAIL APPL. NOs. 3494 & 2586 OF 2024
handle of a hoe and the accused 2 and 3 pushed him on
the ground and then all the accused stamped him and he
suffered grievous injuries. The scene of occurrence and
the hoe shows the presence of blood. Moreover, in
Section 164 statement of the deceased and the dying
declaration recorded by the Judicial First Class
Magistrate-XII, Thiruvananthapuram, wherein the
deceased has clearly stated that it was the accused who
assaulted and caused grievous injuries to him. Subsequent
to the recording of the dying declaration, the deceased
lost his life on 25.02.2024. The postmortem report also
reveals that there are corresponding injuries on the
deceased, which in turn shows the complicity of the
accused in the crime. If the accused are released on bail,
it would certainly have a deleterious impact on the
society. The accused may also intimidate the witnesses
and tamper with the evidence, especially since the
BAIL APPL. NOs. 3494 & 2586 OF 2024
deceased and the accused are relatives. Therefore, the
applications may be dismissed.
6. The prosecution allegation against the accused is
that on 20.02.2024, the 1st accused hit the deceased on his
head with the handle of a hoe and he suffered a deep
injury. Immediately thereafter, the accused 2 and 3
pushed the deceased on to the ground and his head hit
against the wall and suffered injuries both on his head as
well as neck, and he suffered a fracture on his neck.
7. I have perused the materials on record as well as
the case diary. Both in the 164 statement given by the
deceased as well as the dying declaration he has clearly
stated that it was the 1st accused who hit him with a hoe
on his head and the accused 2 and 3 who pushed him
down to the ground and he hit his head and neck on the
wall and suffered grievous injury. On an evaluation of the
materials on record, prima facie, I find that there are
BAIL APPL. NOs. 3494 & 2586 OF 2024
specific overt acts alleged against the accused 1 and 2.
However, that is a matter to be decided at the time of
trial.
8. It is well settled that at the stage of consideration
of the bail application, a detailed examination of the
evidence and elaborate documentation of the merits of the
case need not be undertaken. There is only a need to
indicate in such orders reasons for prima facie concluding
why bail is granted or refused, particularly where the
accused is charged of having committed a serious offence
[read Kalyan Chandra Sarkar v. Rajesh Ranjan,
[(2004) 7 SCC 528].
9. On an overall consideration of the facts, the rival
submissions made across the Bar and the materials placed
on record, particularly the 164 statement of the deceased,
the dying declaration of the deceased recorded by the
Doctor and also the postmortem certificate which shows
BAIL APPL. NOs. 3494 & 2586 OF 2024
that the deceased lost his life due to the grievous injuries
caused to his head and neck and further that it was the 1 st
accused who allegedly hit the deceased with the handle of
a hoe and it was mainly the 2 nd accused who pushed the
deceased on to the floor, and his neck hit on the wall and
suffered a fracture, I am prima facie satisfied that the
accused 1 and 2 are not entitled to be released on bail.
However, since there is no specific overt act as against
the 3rd accused, who is also a lady and the daughter of the
deceased, I hold that she is entitled to be released on bail,
but subject to stringent conditions.
10. In Prasanta Kumar Sarkar v. Ashis Chatterjee
[(2010) 14 SCC 496], the Honourable Supreme Court has
laid down the broad parameters for Courts while dealing
with bail applications by holding as follows:
"9.xxx xxx xxx 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
BAIL APPL. NOs. 3494 & 2586 OF 2024
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".
11. Similarly, in Kalyan Chandra Sarkar v. Rajesh
Ranjan's case (supra), the Honourable Supreme Court
observed thus:
"11.The law regarding 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.
(b) Reasonable apprehension of tampering with 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 [(2002) 3 SCC 598]
and uran v. Rambilas [(2001) 6 SCC 338.)"
12. In Neeru Yadav v. State of U.P and another
[(2016) 15 SCC 422], the Hon'ble Supreme Court has
BAIL APPL. NOs. 3494 & 2586 OF 2024
held as under:
" 13. We will be failing in our duty if we do not take note of
the concept of liberty and its curtailment by law. It is an
established fact that a crime though committed against an
individual, in all cases it does not retain an individual character.
It, on occasions and in certain offences, accentuates and causes
harm to the society. The victim may be an individual, but in the
ultimate eventuate, it is the society which is the victim. A crime,
as is understood, creates a dent in the law and order situation. In
a civilised society, a crime disturbs orderliness. It affects the
peaceful life of the society. An individual can enjoy his liberty
which is definitely of paramount value but he cannot be a law
unto himself. He cannot cause harm to others. He cannot be a
nuisance to the collective. He cannot be a terror to the society;
and that is why Edmund Burke, the great English thinker, almost
two centuries and a decade back eloquently spoke thus: "Men are
qualified for civil liberty, in exact proportion to their disposition
to put moral chains upon their own appetites; in proportion as
their love to justice is above their rapacity; in proportion as their
soundness and sobriety of understanding is above their vanity and
presumption; in proportion as they are more disposed to listen to
the counsel of the wise and good, in preference to the flattery of
knaves. Society cannot exist unless a controlling power upon will
and appetite be placed somewhere and the less of it there is
within, the more there must be without. It is ordained in the
eternal constitution of things that men of intemperate minds
cannot be free. Their passions forge their fetters [Alfred Howard,
The Beauties of Burke (T. Davison, London) 109]."
14. E. Barrett Prettyman, a retired Chief Judge of US Court of
Appeals had to state thus: "In an ordered society of mankind
there is no such thing as unrestricted liberty, either of nations or
of individuals. Liberty itself is the product of restraints; it is
inherently a composite of restraints; it dies when restraints are
withdrawn. Freedom, I say, is not an absence of restraints; it is a
composite of restraints. There is no liberty without order. There is
no order without systematised restraint. Restraints are the
substance without which liberty does not exist. They are the
essence of liberty. The great problem of the democratic process is
not to strip men of restraints merely because they are restraints.
The great problem is to design a system of restraints which will
nurture the maximum development of man's capabilities, not in a
massive globe of faceless animations but as a perfect realisation,
of each separate human mind, soul and body; not in mute,
motionless meditation but in flashing, thrashing activity. [Speech
at Law Day Observances (Pentagon, 1962) as quoted in Case and
Comment, Mar - Apr 1963]"
15. This being the position of law, it is clear as cloudless sky that
the High Court has totally ignored the criminal antecedents of the
BAIL APPL. NOs. 3494 & 2586 OF 2024
accused. What has weighed with the High Court is the doctrine of
parity. A history - sheeter involved in the nature of crimes which
we have reproduced hereinabove, are not minor offences so that
he is not to be retained in custody, but the crimes are of heinous
nature and such crimes, by no stretch of imagination, can be
regarded as jejune. Such cases do create a thunder and lightening
having the effect potentiality of torrential rain in an analytical
mind. The law expects the judiciary to be alert while admitting
these kind of accused persons to be at large and, therefore, the
emphasis is on exercise of discretion judiciously and not in a
whimsical manner.
16. In this regard, we may profitably reproduce a few significant
lines from Benjamin Disraeli: "I repeat......... that all power is a
trust - that we are accountable for its exercise - that, from the
people and for the people, all springs, and all must exist."
17. That apart, it has to be remembered that justice in its
conceptual eventuality and connotative expanse engulfs the
magnanimity of the sun, the sternness of mountain, the
complexity of creation, the simplicity and humility of a saint and
the austerity of a Spartan, but it always remains wedded to rule of
law absolutely unshaken, unterrified, unperturbed and loyal."
13. The law has thus crystalised that while deciding
an application for bail under Section 439, the courts are
obliged to look into the nature, gravity and seriousness of
the crime, the potential severity of the punishment that is
likely to be imposed, the character, behaviour and
standing of the accused, the prosecution's legitimate
apprehension regarding the tampering of evidence, the
flight risk that is involved and whether releasing the
accused on bail would have a deleterious impact on the
society.
BAIL APPL. NOs. 3494 & 2586 OF 2024
14. On an anxious consideration of the facts, rival
submissions made across the Bar and the materials placed
on record and on analysing the law on the point and also
for the reasons mentioned above, I hold that the accused 1
and 2 are not entitled to be released on bail, but, the 3 rd
accused is entitled to be released on bail.
In the result:
(1) B.A.No.2586/2024 is dismissed.
(2) B.A.No.3484/2024 is allowed, by directing the
petitioner to be released on bail on her 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 court having jurisdiction, which
shall be subject to the following conditions:
(i) The petitioner/3rd accused shall appear before
the Investigating Officer on every Saturday
between 9 a.m. and 11 a.m till the final report
is filed. She shall also appear before the
Investigating Officer as and when required;
BAIL APPL. NOs. 3494 & 2586 OF 2024
(ii) The petitioner/3rd accused shall not directly or
indirectly make any inducement, threat or
procure to any person acquainted with the
facts of the case so as to dissuade her from
disclosing such facts to the court or to any
Police Officer or tamper with the evidence in
any manner, whatsoever;
(iii) The petitioner/3rd accused shall not commit
any offence while she is on bail;
(iv) The petitioner/3rd accused shall surrender her
passport, if any, before the court below at the
time of execution of the bond. If she has no
passport, she shall file an affidavit to the
effect before the court below on the date of
execution of the bond;
(v) In case of violation of any of the conditions
mentioned above, the jurisdictional court shall
be empowered to consider the application for
cancellation of bail, if any filed, and pass
orders on the same, in accordance with law.
(vi) Applications for deletion/modification of the
bail conditions shall be moved and entertained
by the court below.
BAIL APPL. NOs. 3494 & 2586 OF 2024
(vii) Needless to mention, it would be well within
the powers of the Investigating Officer to
investigate the matter and, if necessary, to
effect recoveries on the information, if any,
given by the petitioner/3rd accused even while
the petitioner/3rd accused is on bail as laid
down by the Hon'ble Supreme Court in
Sushila Aggarwal v. State (NCT of Delhi)
and another [2020 (1) KHC 663].
(viii) The observations made in this order are only
for the purpose of considering the application
and the same shall not be construed as an
expression on the merits of the case to be
decided by competent Courts.
Sd/-
C.S.DIAS, JUDGE
rkc/06.06.24
BAIL APPL. NOs. 3494 & 2586 OF 2024
APPENDIX OF BAIL APPL. 2586/2024
PETITIONER ANNEXURES
Annexure 1 ORDER DATED 19-03-2024 IN CRMC 661/2024
ON DISTRICT COURT & SESSIONS COURT,
THIRUVANANTHAPURAM
BAIL APPL. NOs. 3494 & 2586 OF 2024
APPENDIX OF BAIL APPL. 3494/2024
PETITIONER ANNEXURES
Annexure 1 CERTIFIED COPY OF ORDER IN C.M.P. NO.
2149/2024 DATED 18.04.2024 PASSED BY THE
HON'BLE JFCM COURT-IV, ATTINGAL,
THIRUVANANTHAPURAM
