IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1224 of 2009()
1. SREEKUMAR, AGED 36 YEARS,
... Petitioner
2. UNNIKRISHNAN, 42 YEARS, S/O.PARVATHY,
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :01/07/2009
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P.No.1224 of 2009
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Dated this the 1st day of July, 2009.
ORDER
Question raised for a decision in this revision is, when could a magistrate
release on bail a person accused of an offence punishable with death or
imprisonment for life.
2. Petitioners are accused Nos.7 and 8 involved in Crime No.667 of
2008 of Kodungallur Police Station for offences punishable under Section 120B,
109, 341, 302 and 212 read with Section 34 of the Indian Penal Code (for short,
“the IPC”). Case is that on 30.6.2008, other accused persons attacked one Biju
with deadly weapons on account of political enmity and caused his death.
Circle Inspector, Mala conducted the preliminary investigation. On 5.12.2008 he
filed a report incorporating petitioners also as accused (accused Nos.7 and 8)
alleging that they, along with other accused persons entered into a criminal
conspiracy to commit the crime, abetted its commission and harboured some of
the offenders. Learning that, petitioners moved an application for anticipatory
bail in this Court. That application did not yield result. Thereafter petitioners
surrendered before learned Judicial Magistrate of First Class, Kodungallur and
moved a petition for bail. Learned magistrate dismissed that petition. In the
meantime on the request of the investigating officer petitioners were given to the
custody of that officer and after interrogation they were produced before learned
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magistrate on 25.2.2009 at 5 p.m. Petitioners moved another application for
bail, obviously under Section 437 of the Code of Criminal Procedure (for short,
“the Code”) before learned magistrate. That application was opposed by the
Law Officer. Learned magistrate as per order dated 27.2.2009 granted bail to
the petitioners observing that petitioners are arrayed as accused Nos.7 and 8
only as per report dated 5.12.2008, records reveal that alleged involvement of
petitioners (in the incident) was known to the investigating officer even on the
date of arrest of accused No.2, there is nothing on record to show any overt act
allegedly committed by the petitioners, they have already been given to police
custody and hence their continued detention will not serve any purpose. The
investigating officer challenged that order before learned Sessions Judge,
Thrissur in Crl.R.P.No.19 of 2009. Learned Sessions Judge after hearing both
sides and perusing the records observed that the learned magistrate has not
entered a finding as to the involvement of the petitioners in the case involving
offence punishable with death or imprisonment for life and instead, on irrelevant
considerations such as continued detention of the petitioners will not serve any
purpose and no overt act is alleged against the petitioners, granted bail. Learned
Sessions Judge observed that in the absence of any finding that there is no
reasonable ground to think that petitioners have committed offence punishable
with death or imprisonment with life, learned magistrate had no jurisdiction to
grant bail. It is further observed that records prima facie revealed involvement
of petitioners in the alleged conspiracy and abetment. Holding so, the order
Crl.R.P.No.1224/2009
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passed by learned magistrate was set aside. In challenge of the order passed
by learned Sessions Judge, petitioners have come in revision.
3. Learned counsel for petitioners contend that learned Sessions
Judge was not correct in holding that learned magistrate had no jurisdiction to
grant bail to an accused involved in commission of offence punishable with
death or imprisonment for life. It is also contended by learned counsel that
learned Sessions Judge has not entered a finding that materials on record are
sufficient to prima facie show that petitioners have committed offence
punishable with death or imprisonment for life. Learned counsel therefore
prayed that the impugned order passed by the learned Sessions Judge may be
set aside restoring the order passed by learned magistrate. Learned public
prosecutor per contra contended that there are sufficient materials on record to
show involvement of petitioners in criminal conspiracy, abetment of the crime
and harbouring some of the offenders after the incident and hence learned
magistrate could not have granted bail in view of the restriction contained in
Section 437(1)(i) of the Code.
4. Section 437 (1) of the Code, no doubt gives power to the
magistrate to grant bail in cases involving non-bailable offences also but under
clause (i) of Sub-section (1), a magistrate could not grant bail if there
appeared reasonable ground for believing that the person concerned has been
guilty of an offence punishable with death or imprisonment for life. So much so,
a magistrate could grant bail to a person accused of an offence punishable with
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death or imprisonment for life only on arriving at a satisfaction that there is no
reasonable ground to believe that such person has committed an offence
punishable with death or imprisonment for life. Therefore, learned Sessions
Judge is justified in observing that without entering into such a satisfaction and
finding, learned magistrate could not have granted bail under Section 437(1) of
the Code. I am unable to understand the observation made by learned
Sessions Judge as indicating that under no circumstance a magistrate could
grant bail in respect of an offence punishable with death or imprisonment for life.
5. I have gone through the order passed by the learned magistrate.
There is no finding that learned magistrate was satisfied that there was no
reasonable ground to believe that petitioners have committed an offence
punishable with death or imprisonment for life. Instead, what learned
magistrate has observed is that records did not reveal any overact on the part
of the petitioners and since petitioners had already been put in custody of the
investigating officer till 25.2.2009 at 5 p.m. their continued detention will not
serve any purpose. On going through the order passed by learned magistrate I
am satisfied that it was not on a finding, express or implied that there appeared
no reasonable ground to believe that petitioners have committed offence
punishable with death or imprisonment for life that they were granted bail.
6. So far as the order impugned in this revision is concerned (passed
by learned Sessions Judge), learned Sessions Judge has stated about the
alleged role of petitioners in the alleged criminal conspiracy and abetment of
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the crime. To supplement the contention of learned Public Prosecutor,
investigating officer has filed a statement and additional statement stating the
materials so far collected, regarding the alleged involvement of petitioners in
the incident. The entire C.D. files in four volumes was placed before me. Gist
of the allegations and materials collected against the petitioners are contained in
the statement and additional statement filed by the investigating officer which are
not disputed before me. That refers to the alleged involvement of the petitioners
in the criminal conspiracy, abetment and harbouring of some of the offenders.
Accused, Mithun confessed that the crime was committed at the instigation of
the petitioners. The immediate provocation for attacking Biju, the deceased was
that BJP leaders including petitioners thought that Biju was behind throwing of
burning torch into the dharna organized by the BJP activists. On the evening of
29.6.2008 accused Nos.1 and 2 were taken to the BJP office by accused No.6
where the conspiracy was hatched up by the petitioners who instigated the
accused to attack Biju. Accused Nos.1 and 2 were offered the assistance of two
others also. Accused No.3 is said to have confessed the involvement of
petitioners in the conspiracy. Petitioners provided the assailants with food and
shelter. The mobile phones of petitioners and other accused during the relevant
time revealed frequent incoming and outgoing calls between petitioners and
accused Nos.1, 3 and 6. CWs148 and 149 have stated that they have seen
petitioners waiting outside their party office on the evening of 29.6.2008 ,
accused Nos.1, 2 and 6 reaching there in an autorickshaw and all of them going
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into the party office. Petitioner No.1 is stated to have told CW148 while they
were going into the party office that they (petitioners and accused Nos.1, 2 and
6) had an urgent matter to be discussed. CW150 has seen accused Nos.1 and
2 going to the house of petitioner No.1 on 30.6.2008 at about 7.30 p.m.
Petitioner No.1 and accused No.3 were then at the courtyard of the former.
The investigating officer has also narrated in his statement in paragraph 24 other
details to show the alleged conspiracy and abetment involving petitioners. After
the incident on 4.7.2008 accused Nos.1 and 2 were taken to safe places in a
vehicle arranged by petitioner No.2 at the instance of petitioner No.1. Petitioners
are also said to have visited accused No.2 in the house of accused No.12 where
accused No.2 was allegedly harboured after the incident. The investigating
officer states about the possibility of petitioners being subjected to polygraph
test.
7. Learned Sessions Judge in paragraph 7 of the impugned order
has stated about availability of materials to show prima facie, involvement of
petitioners in the alleged conspiracy and abetment for murder. I am to bear in
mind that so far as criminal conspiracy and abetment are concerned, there may
not be any direct evidence to prove the same, and only relevant circumstances
can be brought in. On going through the statement and additional statement
filed by the investigating officer, I am unable to find fault with the stand of the
learned Sessions Judge that from the materials on record learned magistrate
could not have formed the opinion that there is no ground to believe that
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petitioners are involved in an offence punishable with death or imprisonment for
life. That being the factual and legal position, I am satisfied that learned
magistrate was not correct in law or on facts in granting bail to the petitioners.
Learned Sessions Judge is right in setting aside the order passed by learned
magistrate. I do not find reason to interfere with the order under challenge.
Revision fails. It is dismissed.
THOMAS P.JOSEPH,
Judge.
cks