IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 5094 of 2007()
1. SURESH, S/O.SREENIVASAN, THEKKEVILA
... Petitioner
Vs
1. STATE OF KERALA, REP. BY PUBLIC
... Respondent
For Petitioner :SRI.BLAZE K.JOSE
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :17/09/2007
O R D E R
R. BASANT, J.
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B.A.No. 5094 of 2007
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Dated this the 17th day of September, 2007
O R D E R
Application for regular bail. The petitioner faces allegations,
inter alia, under Section 302 r/w. 120B I.P.C. Altogether there are 8
accused persons. Petitioner is the first accused. The alleged incident
took place on 16.1.2006 at about 8 a.m. The deceased is one Vinod.
He allegedly owed allegiance to a goonda gang headed by one
Krishnakumar. The petitioner, Suresh, is allegedly heading another
goonda gang. On account of inter-group rivalry and animosity, the
petitioner is alleged to have played a dominant role in the liquidation
of the said Krishnakumar as also Vinod. The petitioner and the
followers in that group, in two separate incidents, murdered those
persons.
2. The incident in this case took place on 16.1.06. The
deceased was attacked by a group of eight persons armed with
dangerous weapons. He breathed his last on the date of incident
itself. The petitioner could not be arrested. The police made
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exhaustive efforts to arrest the petitioner. Long later, on 18.4.2007 he was
arrested and his arrest was recorded in this crime. He was required in the
other crime also, relating to the murder of Krishnakumar, the rival goonda
gang leader. In that case the petitioner has been granted bail by default, as
final report could not be filed within 90 days. In the present case
investigation is complete. Final report has also been filed. Cognizance has
been taken by the committal court. The petitioner has been produced before
the committal court. The case has not been committed so far.
3. The learned counsel for the petitioner submits that the petitioner
is absolutely innocent. He has been unnecessarily and falsely implicated.
The petitioner has remained in custody from 18.4.2007. In the F.I.R. the
petitioner is not named. The petitioner may, in these circumstances, be
released on bail now, he having remained in custody from 18.4.2007 in the
present crime, submits the counsel.
4. The learned Prosecutor opposes the application vehemently. He
submits that the presence of the petitioner was secured with great difficulty
by the police. He has remained at large from 16.1.2006, the date of the
crime. The petitioner is a notorious criminal. He has several crimes to his
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credit. The learned Prosecutor, as directed by this court, has ensured that a
statement is filed by the Investigating Officer, in which there is detailed
narration of the cases in which the petitioner is involved. The learned
Prosecutor submits that it is true that in the case relating to the murder of
Krishnakumar, the rival goonda gang leader, the petitioner has been
released on bail. But such release was on account of the reason that the
final report had not been filed within 90 days. If the petitioner were
released, he will not be available for trial. It is likely that he may
intimidate the witnesses. His criminal antecedents may be taken into
consideration. The authorities are contemplating steps to ensure that the
petitioner is detained under the provisions of the Kerala Anti-Social
Activities (Prevention) Ordinance, 2007. In any view of the matter, the
petitioner may not be released on bail, submits the learned Prosecutor.
5. I have considered all the relevant inputs. In the peculiar facts and
circumstances of this case, a report of the learned Magistrate was called for
as to why the proceedings are not expedited. The learned Magistrate has
reported that out of the eight accused, only the petitioner and another have
appeared and the court is waiting for appearance of the other accused. The
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learned Magistrate in the report submits that the case can be committed
within a period of one month.
6. Having anxiously considered all the relevant inputs, I find merit
in the opposition by the learned Prosecutor. I am satisfied that the
petitioner does not deserve to be enlarged on bail at this stage. It is true that
bail and not jail is the ordinary rule. But the ordinary rule must certainly
admit of exceptions when such deviation is required in the peculiar facts
and circumstances of the case. I am of the opinion that this is eminently
one such case where the rule cannot be followed notwithstanding the fact
that the investigation is complete and final report has already been filed. I
am satisfied that there can be a direction to the learned Magistrate to
expedite the committal. I am further satisfied that the Sessions Judge can
also be directed to ensure that the trial in this case takes place as
expeditiously as possible.
7. This application is hence dismissed. But I may hasten to observe
that the petitioner shall be at liberty to move this court for bail again if
committal does not take place within a period of two months and trial of the
case does not commence within six months. Such application for bail shall
be considered on merits at that stage.
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8. Communicate copy of the order to the Magistrate and the
Sessions Judge concerned.
(R. BASANT)
Judge
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