Dismissed

Hareesh @ Harish v. State of Kerala

Kerala HC7 Oct 2020Bail Appl./5943/2020

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a bail application filed by a petitioner accused of assault and attempted murder. Despite citing past bail rejections, the court noted the petitioner's continued detention and directed the Sessions Judge to expedite the trial or split the case if the 2nd accused remained at large, rejecting indefinite detention solely due to co-accused absence.

What did the court decide?

Bail application dismissed; trial court directed to expedite trial or split case if 2nd accused remains at large.

Hareesh @ Harish Vs State of Kerala — Bail and Remand | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942

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Bail Appl..No.5943 OF 2020

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CRIME NO.557/2018 OF Cherpu Police Station , Thrissur

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PETITIONER(S)/1ST ACCUSED :

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HAREESH @ HARISH, AGED 42 YEARS, S/O VELAPPAN, NANDANATHUPARAMBIL HOUSE, KATTUKADAVU, KARANCHIRA VILLAGE, THRISSUR DISTRICT, PIN-680702.

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BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA

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RESPONDENT/COMPLAINANT :

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM- 682031.

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SRI K.P HARISH PUBLIC PROSECUTOR

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Bail Appl..No.5943 OF 2020 2

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ORDER

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This application is filed under Section 439 of the Code of Criminal Procedure.

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The petitioner herein is the 1st accused in Crime No.557 of 2018 of the Cherpu Police Station registered under Sections 341, 323, 294(b), 307 and 324 read with Section 34 of the IPC.

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According to the prosecution, the petitioner herein is a ganja peddler and accused in numerous cases. His acts were questioned by the de facto complainant. Aggrieved by the above, on 29.09.2018 at about 6.30 p.m., petitioner along with his friend is alleged to have wrongfully restrained one Babu, a near relative of the de facto complainant, and inflicted a stab wound on his lower abdomen causing serious injuries. When the de facto complainant tried to intervene, the 2nd accused is alleged to have assaulted him.

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I have heard Sri. C.A.Chacko, the learned counsel

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appearing for the petitioner and the learned Public Prosecutor.

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From the prosecution records, it appears that the petitioner is involved in as many as 27 other crimes and he has been found guilty in three cases. Proceedings under the Kerala Anti Social Activities (Prevention) Act was initiated against him to quell his proclivity for violence and he underwent detention. In spite of these antecedents, he has stabbed another man and has caused serious injuries.

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While dismissing the earlier application filed by the petitioner, this Court had occasion to observe thus in paragraph Nos. 7 to 11 of the judgment:

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I have anxiously considered the submissions advanced by both sides and have carefully gone through the final report. It is 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 and finally (ix) the larger interest of the public or the State (See: State of U.P through CBI v. Amarmani Tripathi [(2005) 8 SCC 21] ; Prahlad Singh Bhati v. NCT, Delhi & Anr . [(2001) 4 SCC 280]; Ram Govind Upadhyay

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v. Sudarshan Singh & Ors . [(2002) 3 SCC 598]; Pratapbhai Hamirbhai Solanki Vs. State of Gujarat and Anr. [2012 (10) SCALE 237].

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In a recent judgment of the Hon'ble Apex Court in Mahipal v. Rajesh Kumar @ Polia and Another [2020(2) SCC 118], it was held that the provisions for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by the higher courts. The court will have to balance numerous factors that guide the exercise of the discretionary power to grant bail in a case to case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding.

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In Ash Mohammad v. Shiv Raj Singh @ Lalla Babu and Anr . [JT 2012 (9) SC 155], the Apex Court while dealing with individual liberty and cry of the society for justice has opined as under: -

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It is also to be kept in mind that individual liberty cannot be accentuated to such an extent or elevated to such a high pedestal which would bring in anarchy or disorder in the society. The prospect of greater justice requires that law and order should prevail in a civilized milieu. True it is, there can be no arithmetical formula for fixing the parameters in precise exactitude but the adjudication should express not only application of mind but also exercise of jurisdiction on accepted and established norms. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible

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and not to disturb the tranquility and safety which every wellmeaning person desires.

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In the case on hand and in view of the antecedents, the apprehension of the prosecution that the petitioner would use his liberty to subvert justice and tamper with the evidence cannot be brushed aside at this stage.

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Taking note of the period of incarceration undergone by the petitioner, this Court had directed the Registry to get a report from the court below with regard to the prospect of expediting the trial. The Sessions Judge has reported that as much as 117 five plus cases are pending and the total pendency is 3032. However, taking note of the fact that the petitioner is an under trial, the Sessions Judge has expressed hope that the case can be disposed of within a period of six months after completing the appearance of the accused in the case.

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The petitioner has approached this Court yet again

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seeking bail. It is contended that in spite of the specific directions issued by this Court, the trial has not commenced till date. The 2nd accused is still at large and the reasonable probability of the case coming up for trial in the near future is remote.

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I have considered the submissions advanced. The

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application for bail filed by the petitioner was dismissed earlier in view of the serious criminal antecedents of the petitioner. Except for the fact that the trial has been delayed, there are no circumstances

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warranting a change of view. The apprehension expressed by the prosecution that the petitioner was involved in similar crimes and that he would manage to influence the witnesses and terrorize them will exist. In that view of the matter, I do not think that it would be proper to grant bail to the petitioner at this stage.

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However, in view of the submissions advanced, a report was called for from the learned Sessions Judge. In the report, it is stated that the trial could not take place as the 2nd accused is still at large. It is further stated that all endeavor shall be made to conclude the trial within a period of six months after the appearance of the 2nd accused is secured.

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I have considered the submissions advanced. The petitioner is an under trial and he has been in custody from 4.7.2019. He cannot be indefinitely kept in custody on the ground that the 2nd accused is absconding. If the prosecution fails to secure the presence of the accused within a reasonable period, the trial court will either have to consider his application for bail or the case may have to be split up and the proceedings against the petitioner will have to be concluded. It appears that the case now stands posted to 12.10.2020. The learned Sessions Judge shall evaluate the prospects of securing

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the presence of the 2nd accused and take either of the courses suggested above.

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This application will stand dismissed.

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SD/-

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RAJA VIJAYARAGHAVAN V

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JUDGE