IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 7TH APRIL 2010 / 17TH CHAITHRA 1932 Bail Appl..No. 1958 of 2010() ----------------------------- SC.130/2010 of ADDL.DISTRICT COURT (ADHOC), MAVELIKKARA CRIME NO.855/2009 OF CHENGANNUR POLICE STATION . .................... PETITIONERS/ACCUSED 2 TO 4: ---------------------------------------------- 1. BIBISH BABU @ BASITH ALI, AGED 24 YEARS, KALAYIL HOUSE, SACHIVOTHAMAPURAM COLONY, KURICHI VILLAGE, KOTTAYAM DISTRICT. 2. NITHIN @ UNNI, AGED 25 YEARS, S/O.GOPALAKRISHNAN, NITHIN NILAYAM, KUTTIKKATTUKARA, UDYOGAMANDAL BHAVAN, ERNAKULAM DISTRICT. 3. SHANU RASHEED, AGED 21 YEARS, S/O.RASHEED MUHAMMED KANNU RAWTHER, PALATHINKAL HOUSE, PATHALAM MURI, KODUNGALLUR TALUK, ERNAKULAM DISTRICT. BY ADV. SRI.RINNY STEPHEN CHAMAPARAMPIL RESPONDENT/COMPLAINANT: ---------------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI. C.M. KAMMAPPU, PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No.1958 of 2010 ------------------------------ Dated this the 7th day of April, 2010 O R D E R This is an application for bail under Section 439 of the Code of Criminal Procedure filed by the second accused, Bibish Babu @ Basith Ali, the 3rd accused, Nithin @ Unni and the 4th accused, Shanu Rasheed, in Crime No.855/2009 of Chengannur Police Station. 2. The offences alleged against the accused persons are under Sections 114, 120-B, 394, 449 and 302 read with Section 34 of the Indian Penal Code. 3. Accused Nos.2,3 and 4 were arrested on 11.12.2009. 4. The gist of the prosecution case is the following: Bhaskara Karnavar, Karnavar’s Villa, Cheriyanad village was found dead in his bed room in the morning on 8-11-2009. Nephew of Bhaskara Karnavar reported the matter to the police. Crime was originally registered under Section 174 of the Code of Criminal Procedure. Investigation revealed that Bhaskara Karnavar was murdered. 5. Sherin, the first accused, who is the daughter in law of B.A. No.1958 /2010 2 Bhaskara Karanvar, was not having a good relationship with him, since he had cancelled the will executed in favour of his son, Sherin and their child. She decided to do away with Bhasakara Karanvar. She sought the help of the 2nd accused Basith Ali for that purpose. Basith Ali had business dealings with Sherin. The other accused persons, namely, Nithin alias Unni and Shanu Rasheed were the friends of Basith Ali. The accused persons conspired together to murder Bhaskara Karnavar. During the late night of 7-11-2009, accused Nos. 2 to 4 came to house of Bhaskara Karnavar. Accused No.1 had made all arrangements for their entry into the house. The accused persons committed the murder of Bhaskara Karnavar, while he was sleeping. The valuable articles of Bhaskara Karnavar were also taken away by accused Nos. 2 to 4. 6. On the date of occurrence, Sherin, her husband and the maid servant were in the house. The husband of Sherin is a mentally challenged person. The driver employed by Bhaskara Karnavar was in the outhouse. The investigating officer found that chilly powder was sprinkled in the bed room, body of B.A. No.1958 /2010 3 Bhaskara Karnavar and several other places in the house, in order to destroy evidence. 7. After completing the investigation, charge sheet was filed on 8.2.2010. 8. B.A.Nos.971 & 972 of 2010 were filed by accused Nos.3 and 4 and those Bail Applications were dismissed by the common order dated 1/03/2010. While dismissing those Bail Applications, it was held thus: “Taking into account the facts and circumstances of the case, I do not think that the petitioners can be released on bail at this stage. If they are released on bail, it is likely that they would make themselves scarce. The petitioners were arrested after one month of the incident. They had gone to other States after the incident. The submission made by the learned Director General of Prosecution that the petitioners are likely to influence or intimidate the witnesses also cannot be ruled out . I think interests of justice would be served by issuing a direction to the Judicial Magistrate of the First Class I, Chengannur to expedite the committal proceedings in the case and the learned Sessions Judge to dispose of the case at the earliest. Accordingly there will be direction that the B.A. No.1958 /2010 4 Judicial Magistrate of the First Class I, Chengannur shall expedite the committal proceedings after completing all the formalities. The learned Sessions Judge, before whom the case comes up for trial, shall make every endeavour to schedule the Sessions Case for trial at the earliest. It is made clear that if any delay occurs in the matter of committal or in the matter of trial of the Sessions Case, the petitioners will be free to approach this Court for appropriate reliefs including a prayer to release them on bail.” 9. The learned counsel for the petitioners submitted that the first accused, Sherin was granted bail by this Court and it is the change of circumstances in favour of the petitioners. He also submitted that though the case was scheduled for trial before the Sessions Court, it is likely to take several months to dispose of the case. He pointed out that the reports of the Forensic Science Laboratory and the Finger Print Bureau have not been received so far. He submitted that the master brain of the offence, even according to the prosecution, was the first accused. The first accused having been granted bail, there is no reason why accused Nos.2 to 4 should be detained further. B.A. No.1958 /2010 5 10. The learned Director General of Prosecution vehemently opposed the Bail Application. He submitted that the reason for granting bail to the first accused was quite different and those reasons would not apply in the case of accused Nos.2 to 4. Bail was granted to the first accused by exercising the jurisdiction under the proviso to Section 437(1) of the Code of Criminal Procedure. The petitioners being not women or persons coming under the category of persons mentioned in the proviso, it cannot be said that the petitioners are entitled to bail on the ground that the first accused was granted bail. The learned Director General of Prosecution submitted that the trial of the case is expected to commence today. 11. The learned Director General of Prosecution also pointed out that the same reasons as noted in the order dated 1/03/2010 still exist in the case of the petitioners. As regards the probable delay that may arise in the case, the learned Director General of Prosecution assured that the Forensic Science Laboratory report and the Finger Print Bureau report would be made available before the court soon and that the prosecution B.A. No.1958 /2010 6 will ensure that the trial is not prolonged on account of any laches on their part. These submissions are recorded. 12. Taking into account the facts and circumstances of the case and also taking note of the order dated 1/03/2010, I am not inclined to grant bail to the petitioners. I am of the view that there is no change of circumstances or any other justifiable reason to depart from the view taken by this Court in the order date 1/03/2010. The Bail Application is accordingly dismissed. K.T. SANKARAN, JUDGE scm