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.
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B.A. NOS.1616, 1792, 1799,
1812 AND 1917 OF 2010
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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
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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
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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
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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).
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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
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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
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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-
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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
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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.
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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
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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
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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;
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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/