IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bail Appl No. 7622 of 2007()
1. NISHIL, S/O.RAMACHANDRAN, AGED 29,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
For Petitioner :SRI.S.SREEKUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice R.BASANT
Dated :12/12/2007
O R D E R
R. BASANT, J.
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B.A.No. 7622 of 2007
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Dated this the 12th day of December, 2007
O R D E R
Petitioner is the 11th accused in Crime No.333 of 2005 of
Alathur police station. That crime is registered under Section
302 I.P.C. The petitioner was arrested in the course of
investigation of that crime. He was granted default bail under
the proviso to Section 167(2) Cr.P.C. in as much as the final
report was not filed within the period of 90 days. The petitioner
was released from custody. He was allegedly involved in some
other very grievous crimes. An application was filed to cancel
his bail. That application was allowed by the learned Sessions
Judge as per order in Crl.M.P.No. 3038 of 2006 dt.19.9.2006.
The petitioner was taken back to custody on the strength of that
order on 2.5.2007. In fact he was not arrested while he was
enjoying the liberty under the earlier bail order. He had been
arrested in some other crime and a production warrant was issued
to cause his production in this crime. The petitioner has been
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continuing in custody from 2.5.2007 in this case as per the production
warrant issued and the subsequent remand consequent to the order in
Crl.M.P. No. 3038 of 2006 by the Sessions Court, Palghat.
2. The petitioner came to this Court again seeking regular bail
and by order dt.10.10.2007 in B.A.No. 5155 of 2007 the petitioner’s
application for regular bail was dismissed. It was however observed
that the petitioner can come to this Court for bail again at a later stage,
not at any rate prior to 26.11.2007.
3. The petitioner has now come to this Court with this bail
application on 3.12.2007. The learned counsel for the petitioner
submits that the final report has not been filed so far and the petitioner
is at any rate entitled to be enlarged on bail now.
4. The learned counsel for the petitioner raises a very serious
contention. He contends that the order in Crl.M.P. 3038 of 2006 of the
learned Sessions Judge, Palghat has been challenged before this Court
in Crl.R.P. No. 4588 of 2006 and another Bench of this Court, as per
order dt. 21.12.2006, had directed stay of the said order canceling bail.
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After 21.12.2006 no court could have taken any steps to get the
petitioner into custody or to remand him in this crime in view of the
order of stay dt.21.12.2006. Consequently the learned counsel for the
petitioner contends that the detention of the petitioner as per the
production warrant from 2.5.2007 is incorrect, improper and illegal.
As his very detention is illegal and improper, the petitioner may now
be released from custody, submits the learned counsel.
5. The learned counsel fairly submits that there has been an
omission on the part of the petitioner to apprise all courts from
2.5.2007 till this date of the interim order passed in Crl.R.P. 4588 of
2006 by another Bench of this Court dt. 21.12.2006. That omission
notwithstanding, the petitioner is not liable to continue in custody for
one day longer, submits the counsel.
6. The learned Prosecutor was directed to take instructions. The
file in Crl.R.P.4588 of 2006 was called to this Court for perusal. I
have perused the files. I have secured a report from the learned
Magistrate also. The report shows that production warrant was issued
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solely on the basis of the order in Crl.M.P.No.3038 of 2006
dt.19.9.2006 of the learned Sessions Judge, Palghat. The production
warrant was issued as the learned Magistrate was not aware of and was
not apprised of the interim order passed in Crl.R.P. 4588 of 2006 on
21.12.2006. In these circumstances, it is submitted that the petitioner
is really on bail even now, eventhough he has been authorised to be
detained on the basis of the production warrant issued by the learned
Magistrate from 2.5.2007.
7. The learned Prosecutor, after taking instructions and after
perusing the files, also submits that an inadvertent error appears to
have crept in. Neither the accused nor the Prosecutor nor the Court
was cognizant of the fact that there was an interim order dt. 21.12.2006
staying all further proceedings pursuant to the order in Crl.M.P.3038 of
2006 dt. 19.9.2006.
8. The long and short of the above discussions is that the
detention of the petitioner from 2.5.2007 is incorrect, improper and
without legal justification. It appears that there was confusion in the
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matter. The petitioner is involved in many crimes. Even the petitioner
does not appear to have been sure of the factual position. That is the
only way to understand the omission on the part of the petitioner and
his counsel to bring to the notice of the Court the fact when a detailed
order was passed in B.A. 5155 of 2007 dt.10.10.2007.
9. Be that as it may, I am now satisfied that the petitioner is on a
valid order of bail. The order canceling his bail has been stayed as per
order in revision, which is pending even now, and the interim order
continues to be in force. The only consequent order this Court can
pass is to direct release of the petitioner forthwith from custody. He
shall continue to be bound by the bond executed by him and the
conditions imposed on him when he was initially released on bail i.e.
default bail was granted to him by the learned Magistrate. He shall
scrupulously comply with the conditions imposed as per the said order,
until these conditions are modified or vacated.
10. This application is accordingly allowed. The Registry shall
forthwith communicate the direction to the learned Magistrate and the
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prison authorities to release the petitioner from custody forthwith, if
his continued detention is not necessary in connection with any other
case.
11. Crl.R.P.No.4588 of 2006 shall be called before the
appropriate Bench for consideration and disposal. The Registry shall
forthwith bring to the notice of that Court this order.
(R. BASANT)
Judge
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