Justice Indira Banerjee and Justice Krishna Murari at the Supreme Court have in the judgment of the case –State of Kerala v. Mahesh, delivered on March 19, 2021, underlined the seriousness of charge as one of the very important factors relevant for consideration by the Kerala High Court, while granting bail to the respondent – accused, who has been charged with a heinous and shocking murder of a lady doctor aged about 30 years.
The Supreme Court has pointed out that in this case, the impugned order passed by the Kerala HC to grant bail is flawed. Though the HC noted the seriousness of the offence alleged and observed that the incident was heinous, but it proceeded to grant bail to the respondent-accused on the purported ground that he had been in custody since October6, 2020 (that is about 75 days) without even considering the materials on record which prima facie made out reasonable grounds to believe that the respondent-accused had committed the heinous offence. At that stage, even the charge sheet had not been filed. The HC did not apply its mind to the severity of the punishment in the event of conviction, or the fact that the accused had been absconding after the incident.
As argued on behalf of the appellant-State of Kerala, supported by the applicant for intervention, being the hapless parent of the victim, the HC has neither considered nor discussed the elaborate reasons given by the Sessions Court in its order rejecting the prayer of the respondent –accused for bail.
The impugned order of the HC does not advert to any error in the reasoning of the Sessions Court. Nor is there any discussion of the reason why the HC took a view different from that taken by the Sessions Court – whether there were any supervening circumstances within 10/12 days of the of the order of the Sessions Court, which necessitated a different view.
In the SC’s opinion, the HC clearly erred in not appreciating that the apprehension of the prosecution that the respondent-accused would influence witnesses, could not be put to rest, by directing the respondent-accused not to enter the jurisdiction of Ollur Police Station. The HC completely ignored the fact that the deceased victim used to reside at Ernakulam. Her parents and her five years old daughter reside at Ernakulam. In other words, the only eye-witness is a resident of Ernakulam. Most of the prosecution witnesses were from Thrissur. There was no reason to suppose that the witnesses would restrict their movements to the limits of the jurisdiction of Ollur Police Station.
It further appears from the impugned order that , in granting bail to the respondent-accused, the HC took note of the fact that two other accused persons had not been arrested .The HC completely ignored the fact that these two accused persons were not named in the FIR. They were charged after investigation with offence under section 212 , of harbouring the respondent-accused, punishable with imprisonment for a maximum period of five years, unlike the respondent-accused, charged with murder under section 302 of the IPC, which entails minimum punishment of imprisonment for life.
There can be no doubt that the outbreak of the novel COVID-19 pandemic and its spread has been a matter of serious public concern. The virus being highly infectious, precautions to prevent spread of infection to the extent possible are imperative. In Suo Motu Writ Petition (Civil) No. 1 of 2020 In Re : Contagion of Covid 19 Virus in Prisons, the SC has expressed concern over the possibility of spread of COVID-19 amongst prisoners lodged in overcrowded correctional homes and accordingly issued directions from time to time, directing the authorities concerned to take steps as directed by the Supreme Court, to minimize the spread of COVID amongst the inmates of correctional homes. The Supreme Court has also directed that a High Powered Committee be constituted by the states and Union Territories to consider release of some prisoners on interim bail or parole during the Pandemic, to prevent overcrowding of prisons.
It appears that that the HC has completely mis-appreciated the object, scope and ambit of the directions issued by the Supreme Court from time to time in the said case (Re : Contagion of COVID 19 Virus in Prisons). The SC did not direct release of all under-trial prisoners, irrespective of the severity of the offence. After hearing the eminent lawyers appointed by it, the SC has directed the States and Union Territories to constitute a High Powered Committee to determine which class of prisoners could be released on parole or interim bail for such period as might be thought appropriate.
By way of example, The SC’s direction has been for the States and the Union Territories to consider release of prisoners convicted for minor offences with prescribed sentences of seven years or less. The orders of this Court are not to be construed as any direction or even observation, requiring release of under-trial prisoners charged with murder, and that too, even before investigation is completed and the charge sheet is filed.
The State of Kerala had filed the appeal against an order passed by the Kerala High Court on December21, 2020, granting bail to the respondent-accused charged with heinous and shocking murder of a lady doctor aged about 30 years.
It was the case of the prosecution, that on September 28, 2020, at about 3.30 pm the respondent-accused stabbed the victim with a knife, inside a multi - speciality dental clinic, run by the victim at Kuttanellur. The victim succumbed to her injuries at Jubilee Mission Hospital on October 4, 2020.
As per the case of the prosecution, the victim met the respondent-accused after her divorce from her erst-while husband. The victim and the respondent-accused became close and started living together from 2018 onwards. The victim became pregnant, but the respondent- accused forced her to undergo an abortion by threatening her.
The Victim had started the clinic with financial support from her father. The respondent-accused misappropriated money from the clinic and also harassed the victim, both physically and mentally. She was constrained to live separately at her own house. As the accused continued to threaten the victim, she along with her father filed a complaint with the City Police Commissioner, Thrissur, on September 26, 2020.
At the end of the judgment, the SC has re-iterated that the respondent-accused is charged with murder in the presence of an eye-witness and the impugned order granting bail was filed even before the charge-sheet was filed on January 1, 2021.Moreover, the accused had been absconding after the incident.
For the reasons discussed, the SC has allowed the State appeal and set aside the impugned order passed by the HC for granting bail to the accused and ordered that he should be taken in to custody.