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Nibin Thomas vs Central Bureau Of Investigations on 9 April, 2010

Kerala High Court
Nibin Thomas vs Central Bureau Of Investigations on 9 April, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Bail Appl..No. 1616 of 2010()


1. NIBIN THOMAS, S/O.K.T.THOMAS,
                      ...  Petitioner

                        Vs



1. CENTRAL BUREAU OF INVESTIGATIONS,
                       ...       Respondent

                For Petitioner  :SRI.S.SANAL KUMAR

                For Respondent  :SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I.

The Hon'ble MR. Justice K.T.SANKARAN

 Dated :09/04/2010

 O R D E R
                         K.T.SANKARAN, J.
            ------------------------------------------------------

                    B.A. NOS.1616, 1792, 1799,

                     1812 AND 1917 OF 2010
            ------------------------------------------------------
             Dated this the 9th day of April, 2010


                               O R D E R

These Bail Applications are filed under Section 439 of the

Code of Criminal Procedure for bail by some of the accused in R.C.

No.2(S)/2010-CBI,TVPM (originally Crime No.197 of 2009 of

Nedumudi Police Station). The details regarding Bail Application

number, rank of the accused, name of the accused and date of

arrest are shown below.




Number of the    Rank of       Name of the accused            Date of

Bail             the                                          arrest

Application      accused


1616 of 2010     A8            Nibin Thomas                   23-8-2009


1792 of 2010     A6            Thomas Kuriakose               23-8-2009

                               alias Binu

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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1799 of 2010    A1, 3      Jayachandran alias      23-8-2009

                and 5      Jayan,

                           Sathar alias Anakkaran,

                           Sujith
1812 of 2010    A7, 9,10   Sunil alias Suni,       23-8-2009

                and 11     Aneesh Kumar,

                           Binoy Markose alias

                           Binoy,

                           Jain Jose alias Jain.
1917 of 2010    A12, 14,   Ramesh alias Sony,      12-1-2010

                and 17     Akash Sasidharan alias

                           Rajesh,                 23-8-2009

                           Shino Paul.



2. The offences alleged against the accused persons are

under Sections 143, 147, 148, 324, 302, 120-B, 201 and 212 of the

Indian Penal Code and Section 5 of the Explosive Substances Act.

3. The prosecution case is that Paul M. George, who is also

known as Paul Muthoot, a young businessman aged 32 years was

brutally murdered at about 0.15 hours on 22-8-2009 at a place two

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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Kilometres east of Pallathuruthy bridge in Alapuzha –

Changanassery road. Paul M. George was brought dead at about

00.50 hours on 22-8-2009 at the Medical College Hospital,

Alappuzha by his driver Shibu Thomas.

4. Bail Application Nos.5832 and 6088 of 2009 filed before

the High Court by some of the accused were dismissed as per the

order dated 27th October 2009.

5. It is stated that after completing the investigation, final

report was filed before the Court of the Judicial Magistrate of the

First Class, Ramankari on 19-11-2009. The learned Magistrate

passed a detailed order dated 8th December 2009 pointing out

certain “irregularities” mentioned as items 1 to 15 in the order. The

last two paragraphs of the said order read thus:

“On independently applying my mind to the facts

emerging from investigation I find that police has not

done its duty of investigating the case satisfactorily.

Investigation was not carried in respect of certain

aspects. I find some very relevant materials, on which,

investigators must pay their attention. There are

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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missing links and areas to be unearthed and

investigated. Some facts which are relevant for arriving

truth had not been gone into. Investigation on these

areas are necessary for the free and fair trial and just

disposal of the case. Hence it is my duty to indicate

those materials to investigation team who shall make an

in depth study of those materials before filing a final

report.

For the reasons stated above, the present report

filed by the police cannot be said to be complete. The

investigation is not satisfactory. Hence it is returned for

conducting investigation on all aspects and to file a

correct and complete report. Investigation officer is

directed to retain an attested copy of the report in this

court.”

6. Thereafter, Bail Applications were filed by some of the

accused. Bail Application Nos.1816 of 2009 and 6890 of 2009 filed

by Sunil alias Suni, Aneesh Kumar, Binoy Markose alias Binoy, Jain

Jose alias Jain, Shino Paul and Akash Sasidharan alias Rajesh were

dismissed by the order dated 11th January 2010. (Reported in 2010

(1) KLT 339).

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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7. The State filed W.P.(C) No. 37407 of 2009 challenging the

order dated 8-12-2009 passed by the learned Magistrate. A Division

Bench of this Court passed an interim order of stay of the order

passed by the learned Magistrate. After the order of stay was

granted, the investigating officer re-submitted the charge sheet

before the Magistrate’s Court. W.P.(C) No.31031 of 2009 was filed

by the father of Paul Muthoot, praying for entrusting the investigation

of the case to the Central Bureau of Investigation. Both these Writ

Petitions were allowed by the Division Bench by the judgment dated

21-1-2010. (Reported in 2010 (1) KLT 399). The order dated

19.11.2009 passed by the learned Magistrate was quashed. It was

held thus:

“Writ Petition W.P.(C) No.31031 of 2009 is

allowed. Even though final report is filed by local police,

we direct them to hand over all the records to CBI

authority, which shall make independent investigation

and complete the same within six months from the date

of taking over the investigation. The CBI shall

investigate the case from all angles, take assistance of

petitioner or his representative and submit final report to

jurisdictional Court. “

8. It is submitted by Sri.M.V.S. Namboodiri appearing for the

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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C.B.I and Advocates Sri. Madhavankutty, Sri. T.P. Pradeep and Sri.

S.Sanal Kumar, appearing for the petitioners that the C.B.I took over

investigation on 28-1-2010. C.B.I. applied before the Court of the

Chief Judicial Magistrate, Ernakulam to get custody of Accused Nos.

1, 2, 3, 4, 5, 18, 24 and 25. The application was opposed by the

accused. The Chief Judicial Magistrate rejected the application for

custody of the accused. However, the C.B.I was permitted to

interrogate the accused in jail premises for seven days from

15.2.2010. It is submitted that C.B.I. interrogated the accused

persons as per the order passed by the Chief Judicial Magistrate.

9. The learned counsel for the petitioners submitted that since

the charge sheet was returned by the learned Magistrate, it is to be

taken that there is no charge sheet in the case and therefore the

petitioners are entitled to `default bail’ under proviso (a) (i) to sub-

section (2) of Section 167 Crl.P.C. Cognizance was not taken by

the learned Magistrate. The Division Bench directed the C.B.I. to file

the final report before the jurisdictional court. The counsel submitted

that, therefore, it has to be taken that no final report is filed in the

case. If so, the petitioners are entitled to default bail, according to

the counsel. The counsel also submitted that the local police had

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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arrayed 25 persons as accused. C.B.I. has added more persons in

the array of accused. Another weapon was recovered by the C.B.I.

as the weapon of offence. The counsel submitted that one of the

grounds to oppose a bail application could be that the investigating

agency wishes to hold custodial interrogation. Now, the C.B.I.

cannot have custody of the petitioners. Nothing new was brought

out even after interrogation of the petitioners by the C.B.I. in jail. The

counsel added that even according to the prosecution, only Kari

Satheesan (Accused No.2) and Sathar (accused No.3) had weapons

with them and the fatal injuries on Paul Muthoot were inflicted by

Kari Satheesan.

10. Shibu Thomas, the driver of Paul Muthoot, laid the First

Information Statement before the Sub Inspector of Police,

Nedumudi Police Station at 03.00 hours on 22-8-2009. In the

F.I.Statement, Shibu Thomas stated the following: He is working as

driver at the Cardomom County Hotel, Thekkady, owned by Muthoot

Group. At present, he is working as driver at the office of the

Muthoot Group in Kochi. Paul M. George was the Executive Director

of Muthoot Group. On 21-8-2009, three friends of Paul M.George

came in a Ford Endeavour car bearing registration No. KL 01 AS-

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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8407 to meet Paul. Paul M. George and his friends proceeded to the

resort of Muthoot Group at Mararikkulam in the Ford Endeavour car

referred to above and the Scorpio car belonging to Paul M. George.

After taking food and drinks, they proceeded to Pampa Villa Resort

of Muthoot Group at Chambakkulam, at about 22.30 hours on

21.8.2009. While proceeding from Mararikulam, Paul M. George

drove the Ford Edeavour car and the driver Shibu Thomas drove the

Scorpio car. Two of the friends of Paul M.George boarded the Ford

Endeavour car while the other travelled in the Scorpio car. Paul

directed Shibu Thomas to collect the keys of the rooms in Pampa

Villa Resorts from the office of Muthoot Backwater Cruise at

Pallathuruthy. As directed, Shibu Thomas went there to collect the

keys. He was told that the keys were already taken to Pampa Villa

Resort. While proceeding from Pallathuruthy to Chambakkulam,

Shibu Thomas saw the Ford Endeavour car driven by Paul M.

George, parked on the side of the road at Ponga Gurumandiram

Junction, at a distance of about 2 KMs east of Pallathuruthy Bridge.

He saw about 10 to 15 persons near the car. He also saw a Tempo

Traveller at the place, parked facing Alapuzha side. On seeing the

car driven by Shibu Thomas, those persons hurriedly got into the

Tempo Traveller and drove to Alapuzha side. Shibu Thomas saw

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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Paul M. George lying there, drenched in blood. Paul M. George

was taken in the Scorpio car to the Medical College Hospital,

Alapuzha. One of the friends of Paul M. George, who was found

seriously injured, was also taken in the Scorpio car. Two of the

friends of Paul M. George came behind in the Ford Endeavour car.

They overtook the Scorpio car. However, instead of going to

Medical College Hospital, the two friends of Paul drove the Ford

Endeavour car to Thiruvananthapuram side. Shibu Thomas brought

Paul M. George and the other injured to the Medical College

Hospital. It was declared that Paul M. George was dead.

11. The other injured person who was brought to the hospital

by Shibu Thomas was Praveen alias Manu. According to the

prosecution, investigation revealed that the three friends of Paul who

came to see him were Om Praksh, Rajesh, and Praveen alias

Manu.

12. The statement of Praveen alias Manu was recorded under

Section 164 of the Code of Criminal Procedure, before the Judicial

Magistrate of the First Class II, Alappuzha.

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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13. The prosecution alleged (before the case was taken over

by the C.B.I.) that while Paul was driving the Ford Endeavour car, it

hit on a motor bike. Paul did not stop the car. A tempo traveller and

other vehicles were parked on the side of the road at that place.

After driving the car for about two kilometres, Paul stopped the car

and inspected the car to find out the damage caused to the car as a

result of the accident. At that time, several persons came there in a

tempo traveller and questioned Paul as to why he did not stop the

vehicle. They attacked Paul. Satheeshkumar alias Kari Sathessh

stabbed Paul several times. Sathar inflicted a cut injury on Praveen

alias Manu with a sword. Praveen alias Manu ran away and fell into

the paddy field. Thereafter, Shibu Thomas came there in the

Scorpio car and Paul and Praveen alias Manu were taken to the

hospital.

14. Sri. M.V.S. Namboodiri, learned counsel appearing for the

C.B.I. submitted that the C.B.I. is looking into the case in all angles.

The first accused Jayachandran and accused No. 6 Thomas

Kuriakose alias Binu are involved in many cases. The only person

who saw the incident is Praveen alias Manu. His statement under

Section 164 Cr.P.C. was recorded. He is also an injured person. He

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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is the most competent person to depose in court about the incident.

The accused persons are hard core criminals. They are members of

what is popularly called “quotation gang”. If the accused persons are

released on bail, even the life of the only eye witness would be in

danger.

15. A meticulous analysis of the facts of the case or the

contentions of the parties is not required while considering the Bail

Application filed by the accused persons. It is also not required or

feasible to arrive at any conclusion on the merits of the case. Any

finding made at this stage is likely to cause prejudice to either the

prosecution or defence. Consideration and discussion of the facts

are required only for the purpose of considering the question

whether the accused persons should be granted bail.

16. The petitioners, except Ramesh alias Soni, are in judicial

custody since 23-8-2009. Ramesh alias Soni was arrested on

12.1.2010. The C.B.I. took over investigation on 28-1-2010. Some

of the accused persons were interrogated by the C.B.I. The prayer

for custody of the accused was not granted by the Court. Therefore,

continued detention of the petitioners is not required for the purpose

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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of interrogating them. The next question to be considered is whether

the petitioners would tamper with the evidence or intimidate the

witnesses. I think sufficient stringent conditions while granting bail

could be imposed to avert such an eventuality. Keeping the

petitioners in jail would not serve any purpose. Taking into account

the facts and circumstances of the case, I am of the view that bail

can be granted to the petitioners on stringent conditions.

17. The petitioners shall be released on bail on their

executing bond for Rs.50,000/- each with two solvent sureties for

the like amount to the satisfaction of the Court having jurisdiction,

subject to the following conditions:

a) The petitioners shall report before the investigating officer on

every Monday and Thursday between 9 A.M. and 1 P.M., till

the final report is filed or until further orders;

b) The petitioners shall appear before the investigating officer for

interrogation as and when required;

c) The petitioners shall not enter into the limits of Alapuzha

District until further orders;

B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010

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d) The petitioners shall not leave the State of Kerala without prior

permission from the Court having jurisdiction;

e) The petitioners shall surrender their Passports before the

Court having jurisdiction within one week; if any of the

petitioners does not hold an Indian Passport, he shall file an

affidavit to that effect before the learned Magistrate, within one

week.

f) The petitioners shall not try to contact the witnesses, directly

or indirectly, or influence or intimidate them or tamper with the

evidence;

g) The petitioners shall not commit any offence or indulge in any

prejudicial activity while on bail;

h) In case of breach of any of the conditions mentioned above,

the bail shall be liable to be cancelled.

The Bail Applications are allowed as above.

(K.T.SANKARAN)
Judge
ahz/

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