Amalraj M vs State Of Kerala

K. Haripal, J

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.

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.

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 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.

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.

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.

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 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.

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, 5th accused has already been granted bail vide B.A.No.3600/2021.

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.

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.

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 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 hasÂ

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;

ii) The petitioners shall not enter Thalassery Sessions Division except for the purpose of attending the court.

iii) The petitioners shall not get involved in any other offence during the pendency of this case.

iv) They shall keep the investigating officer posted about their movements once in two weeks.

This bail application is allowed as above.