Supreme Court restores bail of five accused in SDPI leader KS Shan murder case

The Supreme Court on Monday overturned a Kerala High Court decision to set aside the bail of five accused facing charges in the murder case of KS Shan, a leader of Social Democratic Party of India (SDPI) [Abhimanyu v. State of Kerala].

A Bench of Justice Dipankar Datta and Justice Augustine George Masih reasoned that the past criminal record of the accused was not sufficient to justify revocation of their bail.

The five are reportedly members of Rashtriyta Swayamsevak Sangh.

While bail may be withdrawn to protect the fairness of trial and prevent accused in serious crimes from threatening witnesses or tampering with evidence, the principle that bail is the rule and jail the exception can't be ignored, the Court said.

"Cancellation/revocation of bail, no doubt, seeks to uphold trial integrity. The dominant purpose thereof is to ensure a fair trial and protect societal interests by preventing persons accused of a heinous or grave crime and having tendencies to influence or intimidate witnesses or to tamper evidence from being released. Indeed, if such accused are likely to interfere with witness testimony, the courts could be justified in ordering the accused to be taken back into custody. However, at the same time, the golden rule of bail jurisprudence propounded by Hon’ble V.R. Krishna Iyer, J. of ‘bail being the rule and jail an exception’ cannot be ignored."

The accused — Abhimanue, Athul, Sanand, Vishnu and Dhaneesh — had moved the top court after High Court in December 2024 cancelled the bail earlier granted to them by the trial court.

The accused along with others are alleged to have murdered KS Shan, the then State Secretary of SDPI, in December 2021. According to the prosecution, the victim was followed by the accused in a vehicle, rammed off his scooter and brutally assaulted, leading to his death.

Within 12 hours, BJP's OBC Morcha State secretary Renjith Sreenivasan was also killed at his home allegedly by SDPI workers which is believed to have been in retaliation.

Both Shan and Sreenivas had contested the 2016 Assembly polls from Ambalappuzha and Alappuzha constituencies respectively. Shan had also contested from Alappuzha in the 2019 Lok Sabha polls.

The accused in Shan's murder were charged under Sections 120-B (criminal conspiracy), 109 (abetment), 115 (abetment of offence punishable with death or life imprisonment), 143 (unlawful assembly), 147 (rioting), 148 (rioting with deadly weapon), 149 (common object liability), 324 (causing hurt with dangerous weapons), and 302 (murder) of the IPC, along with provisions of the Arms Act.

In December 2022, after spending nearly a year in custody, the accused were granted bail by the Sessions Court. The High Court, however, opined that the bail orders were passed mechanically without considering the gravity of the offence or the likelihood of tampering with evidence.

Before the top court, the accused contended that cancellation of bail after more than 18 months was unjustified, as they had complied with all bail conditions. It was also argued that since the sessions judge had earlier rejected a cancellation plea, the State should have sought a revision instead of filing a fresh petition before the High Court.

The top court, however, said that nothing prevented the High Court from exercising its inherent powers. It also clarified the distinction between cancellation and revocation of bail, noting that the High Court in the present case had taken the latter approach.

"Law is well settled that cancellation of bail is distinct from revocation of an order granting bail. Bail may be cancelled when the accused violates any of the conditions imposed. On the other hand, an order granting bail can be revoked if such an order is found to be perverse or illegal," it said.

Observing that the accused had been on bail for nearly two years without major violations, the bench said that the balance between personal liberty and a fair trial could be maintained through stricter conditions rather than re-incarceration.

“Taking back the appellants in custody for no better reason than that the Sessions Court should not have been swayed by the omission of the Public Prosecutor to raise any objection of bail should not operate to the appellants’ prejudice, more so when two years have passed,” the Court remarked.

The Court also noted that 141 witnesses, including five eyewitnesses, are to be examined, and the trial will take time.

"Bearing in mind that the appellants since grant of bail have not been involved in any similar or other offence, we prefer to lean in favour of liberty rather than its curtailment," it said.

Accordingly, bail was restored with stringent conditions, including a restriction on entering Alappuzha district except for trial purposes, mandatory attendance at local police stations every alternate day, a bar on seeking adjournments during eyewitness cross-examination, and prohibition against tampering with evidence or influencing witnesses.

Senior Advocates Soumya Chakraborty, Nachiketa Joshi, Ruchi Kohli and advocates Santosh Kumar, Praneet Pranav, Thadimalla Bhaskar Gowtham, Alabhya Dhamija, Sai Shashank, Subodh S Pati Rishikesh Haridas, Sandeep Singh, Sudheesh KK and Srishti Mishra appeared for the appellants.

Senior Advocates Raghenth Basant and PV Dinesh and Advocates Vishnu P, Harris EA, Hima Bhardwaj, Kaushitaki Sharma, Manu Krishnan G, Harshad V Hameed, Dileep Poolakkot, Ashly Harshad, Anna Oommen and Anshul Saharan appeared for the State and victim's widow.

[Read Judgment]