Common order dismissing second regular bail applications for two accused in a murder case, holding no change in circumstances justifies bail despite their youth, citing risk of influencing witnesses.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
Bail Appl..No.1891 OF 2021
CRIME NO.859/2020 OF MUNAMBOM POLICE STATION, ERNAKULAM
PETITIONER/ACCUSED:
JITHOOS, AGED 19 YEARS, PALAKKAL HOUSE, WEST SIDE OF ELLATHUPADY, EDAVANAKKAD, ERNAKULAM. PIN-682502
BY ADV. SRI.C.Y.VINOD KUMAR
RESPONDENT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031 R1 BY PUBLIC PROSECUTOR R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
SRI.C.K.SURESH – SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.03.2021, ALONG WITH Bail Appl..2551/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.1891 & 2551 OF 2021
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
WEDNESDAY, THE 24TH DAY OF MARCH 2021 / 3RD CHAITHRA, 1943
Bail Appl..No.2551 OF 2021
CRIME NO.859/2020 OF MUNAMBOM POLICE STATION , ERNAKULAM
PETITIONER/ACCUSED:
NAAMDEV, AGED 19 YEARS, SON OF DEVARAJAN, CHOOLAKKAPARAMBIL, AYYAMPALLY, ERNAKULAM PIN-692501
BY ADVS. SRI.M.KIRANLAL SRI.R.RAJESH (VARKALA) SRI.MANU RAMACHANDRAN SRI.T.S.SARATH SHRI.SAMEER M NAIR
RESPONDENT:
STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031
R1 BY PUBLIC PROSECUTOR R1 BY ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
SRI.C.K.SURESH – SR.PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.03.2021, ALONG WITH Bail Appl..1891/2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
B.A.No.1891 & 2551 OF 2021
3
COMMON ORDER
Dated this the 24thday of March, 2021
APPLICATIONS FOR REGULAR BAIL
The applicant in B.A.No.2551 of 2021 is the 2nd
accused, while the applicant in B.A.No.1891 of 2021 is the
3rdaccused in Crime No.859 of 2020 of Munambam Police
Station, Ernakulam, for having allegedly committed offences
punishable under Sections 302, 120B, 212, 201 read with
Section 34 of the IPC. Both have applied for regular bail, the
third time before this Court. Their earlier two applications
for bail were rejected by this Court giving by means of a
detailed order explaining why they cannot be granted bail.
The prosecution case, in a nutshell can again be reiterated as
this:
2.On 22.09.2020, at about 4.15 AM, the deceased
allegedly got information over his facebook account from a
girl he was fond of and she had invited him to reach
Pallathamkulangara Beach so that they could interact.
B.A.No.1891 & 2551 OF 2021
4
Believing that the message he had received is from his
girlfriend, he reached the scene of occurrence. In fact, it
was not the girl, who sent the message. But, using her
Facebook account, it was the 1staccused, who sent the
message to the deceased because he was envious about the
relationship between the deceased and the girl towards
whom he also had a liking. He, therefore, hatched a
conspiracy with the other accused, who are his friends to do
away with the deceased and in accordance with that
conspiracy, accused Nos.1 to 4 armed with deadly weapons
like knife and wooden rafters lay-in-wait for the deceased to
come there in accordance with the message which was
passed over to him and on the deceased reaching there, he
was mercilessly assaulted. The Postmortem report indicates
39 anti-mortem injuries which caused his death. The body
was recovered much later and the inquest report was
prepared at 10.30 AM. Rigour Mortis had already set in by
that time.
3.The applicants state that they are innocent and
the allegations are not true and that investigation has
B.A.No.1891 & 2551 OF 2021
5
already been completed and the final report has been filed.
Both these applicants are hardly out of their juvenility in
their teenage years. And, therefore, they pray that they may
not be detained any longer. It is true that the applicants are
only 19 years of age. The 2ndaccused has also questioned
the fact that he is suffering from a disablement of loss of his
right eye-sight, regarding which he had also produced
documents. The prosecution points out that the 2ndaccused
is a criminal. He is involved in NDPS cases. But, the third
accused does not have any criminal antecedents.
4.The earlier applications were dismissed mainly for
the reason that the applicants were all youngsters and the
deceased also was a youngster. But, for a very frivolous
reason of the deceased being enamoured by a girlfriend of
one of the accused, they hatched a conspiracy to do away
with them which indicates their entirety. The motive for
committing the alleged offence is established. There is
CCTV footage and also statements under Section 164 Cr.P.C,
of the girl, who was the girlfriend of the deceased. She has
also given a statement that spells out an extra-judicial
B.A.No.1891 & 2551 OF 2021
6
confession on the part of some of the accused. There is also
an extra-judicial confession allegedly made tothe Doctor.
All these put together and the CCTV footage and the
reasons for the assault are all questioned to service by the
prosecution to prove its case against the accused. The fact
that the applicants are just hardly out of teenage and that
the third accused does not have any criminal antecedents
alone will not help him getting bail.
5.The learned counsel appearing for the 3rdaccused
submits that it is with the intention to defeat the provisions
under Section 167(2) Cr.P.C, that an incomplete charge
sheet had been filed by the prosecution to defeat the
statutory bail which the applicants were entitled to. I call
for a report from the jurisdictional Magistrate which is
stated that all the documents were produced along with the
final report. But, certified copies of 164 statements of
witnesses that were recorded could not be produced by the
prosecution because they had not yet obtained the certified
copies of those 164 statements. The fact that those
documents were not produced along with the final report
B.A.No.1891 & 2551 OF 2021
does not make that an incomplete final report. And,
therefore, I do not find any reason to hold that the applicant
is entitled to the benefit for that reason. Now all the
records have been produced before the committal court and
the copies have been furnished to the accused as submitted
by the jurisdictional Magistrate. Therefore, that is also not
a good reason for considering the bail application of the
accused.
6.The Honourable Supreme Court has held thus in
Kalyan Chandra Sarkar v. Pappu Yadav [2005 KHC 604: AIR 2005 SC 921] :
"Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application."
Applying this rule to the case in hand, I find that going by
the gravity of the offence which the applicants have
committed, they do not require any mercy and there is no
reason for a change in circumstances. They have to be tried
in custody because there are several witnesses, who can be
B.A.No.1891 & 2551 OF 2021
8
either intimidated or influenced by them and enlarging them
on bail would jeopardise the prosecution case which has
been already stated by me in my earlier orders.
Therefore, the bail applications are dismissed
once again and the trial court is directed to expedite the
disposal.
Sd/-
ASHOK MENON
JUDGE
NR/24/03/2021
2 issues framed by the court
Whether subsequent bail applications are maintainable without a change in fact situation or law?
Whether the applicants are entitled to bail after earlier applications for regular bail were rejected?
Colour shows how this judgement treated each authority
Kalyan Chandra Sarkar v. Pappu YadavReferred¶56
Kalyan Chandra Sarkar v. Pappu Yadav [2005 KHC 604: AIR 2005 SC 921] · Who else cites this
Jithoos
Naamdev
State of Kerala
Ashok Menon
As recorded by the court registry
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Ashok Menon
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