Shaji @ Poovathingal Shaji vs State Of Kerala

Bechu Kurian Thomas, J

This is an application for regular bail filed under section 439 of the Code of Criminal Procedure, 1973.

Petitioner is the 14th accused in Crime No.897/2021 of Alappuzha South Police Station, alleging various offences including section 302 r/w section 149 of the Indian Penal Code, 1860.

On the morning of 19.12.2021, the deceased, who was a member of a political party and an Advocate by profession, was brutally murdered inside his house in front of his mother and wife. Twelve persons allegedly stormed into his house at 6.30 am and attacked the unsuspecting deceased with dangerous weapons like a hammer and sword, and the victim died on the spot itself. Petitioner was arrested on 07.01.2022 and is stated to be the main conspirator behind the incident.

On an earlier occasion, petitioner had approached this Court along with accused Nos.13 and 15 in B.A. No.3336 of 2022 and by order dated 22.06.2022, this Court rejected the bail application. The present application is filed thereafter.

I have heard Sri.John S. Ralph, the learned counsel for the petitioner, as well as Sri. P. Narayanan, the learned Public Prosecutor.

Sri.John S. Ralph, contended that petitioner has been falsely arrayed as an accused and that no material has been recovered to implicate him in a crime of this nature. It was further submitted that petitioner is roped in as an accused solely on assumptions due to the leadership he holds in a political party. Based on the said assumption, he is alleged to be a conspirator in the crime. The learned counsel also submitted that having regard to the period of detention already undergone and the filing of the final report, no purpose would be served by continuing his detention. The learned counsel also submitted that for an effective trial and to set up a proper defence, it is essential that petitioner be released on bail, lest the right to a fair trial is prejudiced. The learned counsel also invited the attention of this Court to the additional documents produced as Annexures A3 to A6, all of which relate to bail granted in another murder case where the Prosecutor had no serious objection in the grant of bail to those accused. The learned counsel drew a parallel from the said orders and submitted that the present crime is alleged to be a counter-attack for the said murder and hence, the opposition by the prosecutor in the present case is discriminatory.

I have considered the rival contentions.

In B.A. No.3336/2022, this Court had already noticed the gravity of the offence and the position of influence the petitioner can wield over the witnesses. Those factors weighed with this court to come to a conclusion that the petitioner cannot be enlarged on bail then. It was also observed in the said order that the ghastly murder and the manner in which it was committed depict a pre-planned and calculated attack. The petitioner as a member of the conspiracy, was identified by the investigating team as the brain behind the murder. These observations cannot be brushed aside even while considering the present bail application.

The petitioner is, as mentioned earlier, stated to be the mastermind being the murder. Allegedly, the conspiracy to murder the deceased was hatched in the house of the petitioner. He is also regarded as one of the leaders of the SDPI. The contention of the prosecution that the witnesses will be intimidated or influenced if the petitioner is released on bail cannot be brushed aside. The gruesome manner in which the murder was committed, that too of an innocent person also, cannot be ignored.

Notwithstanding the above, the long period of detention of one year and the filing of the final report are factors which must be borne in mind by this Court while considering the bail application. In this context, it is apposite to mention that the right of individual liberty under Article 21 is a matter of great importance. However, a balance has to be stuck between the right of individual liberty and the interests of society. Courts have often held that no right is absolute. Though long period of detention already undergone is a factor that can weigh on the court, the same is not an absolute rule. The grant or rejection of bail depends on the peculiar facts of each case. In the decision in Rajesh Ranjan Yadav alias Pappu Yadav v. CBI through its Director [(2007) 1 SCC 70], the Supreme Court had held that merely because a charge-sheet has been filed, is not a ground to release an accused on bail. It was also held that the claim for release, for the purpose of efficacious conduct of the trial by the defence also cannot be treated as a permissible condition for the grant of bail.

Further, merely because the prosecutor had no serious objection to the grant of bail to the accused in a related crime cannot be a reason for granting bail in the present case. Every case, is peculiar to the facts of that particular case. A parallel cannot be drawn from another crime, however connected that crime be. Thus, even though the Prosecutor in Crime No.621/2021 of Mannancherry Police Station did not seriously object to the grant of bail to the accused in that case, that cannot be a reason to grant bail in the present case.

On a perusal of the records of the case, this Court is of the view that the nature and manner of the commission of the offence are so heinous that even though one year has elapsed since the date of arrest, petitioner cannot be released on bail. This Court is mindful of the fact that there are more than 200 witnesses arrayed by the prosecution. However, those circumstances cannot far outweigh the gravity and brutality of the murder.

In such circumstances, I am of the view that there is no change of circumstances warranting the grant of bail to the petitioner and the lapse of time by itself is not a change of circumstances, especially in the instant case, to release the petitioner on bail.

Hence, I dismiss this bail application.