Three Grounds For Grant Of Bail In Susantha Ghosh Case By Apex Court Not Exhaustive; Kerala High Court Enumerates Other Factors

The Kerala High Court recently held that the three factors laid down in Susanta Ghosh v. State of West Bengal (2012) by the Apex Court while considering grant of bail to an accused, namely, chances of tampering with the evidence; chances of interfering with the investigation; and chances of absconding, are not exhaustive. 

The Single Judge Bench of Justice A. Badharudeen ascertained that there are several other factors which also govern the grant of bail, and enumerated the same as follows:

1. "whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; 

2. nature and gravity of the offences;

3. severity of the punishment in the event of conviction;

4. danger of the accused absconding or fleeing if released on bail;

5. character, behaviour, means, position and standing of the accused;

6. likelihood of the offence being repeated;

7. reasonable apprehension of the witnesses being tampered with; 

8. danger, of course, of justice being thwarted by grant of bail

9. danger of threats or influence on witnesses so that the witnesses could not depose the truth before the court;

10. character of the evidence and circumstances which are peculiar to the accused;

11. fatality of witnesses;

12. the impact that his release may make on the prosecution witnesses, its impact on the society; 

13. likelihood of his tampering the evidence;

14. chances of interfering with the investigation; 

15. the way and manner in which the crime was committed; and 

16. the motive behind the crime". 

The prosecution case was that the petitioner-accused had committed double murder of his own brother and uncle on March 7, 2022.

It was submitted by the counsels for the petitioner that the petitioner had been in custody since the aforementioned date, and that the final report in the case had already been filed. It was also submitted that the case had been posted for trial in April 2023, and that the trial could not be materialized as had been scheduled. The counsels stressed that for grant of bail, there are three factors that had to be considered, namely, chances of tampering with the evidence; chances of interfering with the investigation; and chances of absconsion, as per the Apex Court decision in Susanta Ghosh v. State of West Bengal (2012). It was submitted by the counsels that in the event of the above three circumstances being found in the negative, the petitioner would be entitled to bail. 

On the other hand, it was argued by the counsels for the respondents that if the petitioner is released on bail, there are chances of him threatening and influencing the witnesses that include his close relatives. It was pointed out that since the parents of the petitioner had also given statement against him, in the event of his release on bail, he would do away with them as well. It was submitted that the petitioner had also arranged one of the inmates in the jail, when he was released from jail, to threaten the Investigating Officer with dire consequences, and to annihilate him. It was submitted that in view of scheduling of the matter to April, 2023 for trial, there was no necessity to grant bail in the case involving double murder, since the trial could be completed before May, 2023. It was submitted that the parameters in Susanta Ghosh case were not exhaustive. 

The Additional Public Prosecutor placed reliance on Gobarbhai Naranbhai Singala v. State of Gujarat & Ors. (2008) to argue that while considering the application for bail, other aspects like behaviour and likelihood of the offence being repeated shall also be considered.

The counsels for the respondent also placed the Apex Court decision in Sunil Kumar v. State of Bihar (2022) regarding the relevant considerations while granting bail, as including nature of seriousness of the offence; character of the evidence and circumstances which are peculiar to the accused; likelihood of the accused fleeing from justice; the impact that his release may make on the prosecution witnesses, its impact on the society; and likelihood of his tampering.

On noting that the three factors laid down in the Susanta Ghosh case are not exhaustive, the Court proceeded to note that in this case, the petitioner had initially asked his parents for money, on refusal of which, he had proceeded to manhandle them, pursuant to which offence under Section 324 IPC was registered against him. Thereafter, he had sent a WhatsApp message to his sister, expressing his intention to commit murder of his brother and uncle, which he subsequently committed. 

The Court noted that the parents of the accused-petitioner, the wife of the deceased brother, and his other relatives were crucial witnesses in the said crime. 

"If so, the apprehension expressed by the learned counsel for the defacto complainant and the learned Public Prosecutor is having force. It is pertinent to note that the petitioner is a person, who alleged to have committed the offence of murder and the persons murdered are his direct brother and uncle. If so, if he will be released on bail, the life of his parents and other relatives, who are crucial witnesses, will be in danger," the Court observed. 

The court also took note that the petitioner had allegedly given a quotation to another inmate in the jail to annihilate the Investigating Officer, pursuant to which another crime was registered.

"Going by the principles extracted herein above, the aggravating factors are more in this case which would disentitle bail to the petitioner. Therefore, the petitioner herein does not deserve bail and trial shall be completed keeping him in custody, in order to accomplish fair trial," the Court held while dismissing the petition. 

The Sessions Judge was also directed to expedite the trial and complete the same as scheduled.

The petitioner was represented by Advocates BG Harindranath, Amith Krishnan H., M. Gopikrishnan, and Lejo Joseph George. The respondents were represented by Senior Government Pleader and Additional Public Prosecutor P. Narayanan, and Advocates S. Rajeev, Saiby Jose Kidangoor, Anoop Sebastian, Irine Mathew, Anjaly Nair, Benny Antony Parel, Pramitha Augustine, Aditya Kiran V.E., Naail Fathima Abdulla A., V. Vinay, M.S. Aneer, Sarath K.P., and Prerith Philip Joseph. 

Case Title: George Kurian @ Pappan v. State of Kerala & Anr.

Citation: 2023 LiveLaw (Ker) 133

Click Here To Read/Download The Order