IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 Bail Appl..No. 1833 of 2008() ----------------------------- CRIME NO.567/07 OF THALASSERRY POLICE STATION PETITIONERS/ACCUSED 1,2 & 5 -------------------------------------------- 1. NITHIN MOHAN @ BOBBY, S/O LATE MOHANAN, DEVI SADAN, KAVUMBHAGOM, THALASSERY. 2. SAJU, S/O.RAJU, CHERUMADATHIL HOUSE, KAVUMBHAGOM, THALASSERY. 3. VINEES @ KUNJUKUTTAN, S/O. MOHANAN, PAYAMPILLY HOUSE, KAVUMBHAGOM AMSOM, KAVUMBHAGOM DESOM, THALASSERY. BY ADV. SRI.S.RAJEEV RESPONDENTS: STATE ------------------ STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, CRIME NO.567 OF 2007 OF THALASSERY POLICE STATION] BY DIRECTOR GENERAL OF PROSECUTION SRI.P.G.THAMPI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 26/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 1833 of 2008 ----------------------------------------- Dated this the 26th day of June, 2008 O R D E R This petition is for bail. 2. Petitioners are accused 1, 2 and 5 in the crime. The offences alleged against them are under Sections 143, 147, 148, 341, 427 and 302 read with 149 of Indian Penal Code. The incident occurred on 5.11.2007. The petitioners surrendered before the committal court on 3.12.2007 and they are in custody since then. 3. According to prosecution, the incident is an offshoot of a stiff political rivalry between two groups-CPI(M) on one side and BJP/RSS on the other side. The accused belong to the BJP/RSS group and the victim is an activist of CPI(M). On the crucial day, 5.11.2007, the accused came to know that a person belonging to their party was assaulted and nearly murdered at a nearby place and hence they decided to do away with a member of the opposite party. The petitioners, along with other accused (total seven in number) formed an unlawful assembly and armed themselves with deadly weapons proceeded to the place of occurrence and came on the way and the driver who is an activist of CPI(M) was pulled down BA.1833/08 2 and attacked with dangerous weapons like sword, iron rods, wooden sticks etc. He sustained injuries and succumbed to the injuries. 4. Learned counsel for petitioners submitted that the petitioners have been in custody from 3.12.2007 onwards for more than 185 days. The charge sheet has been laid and hence detention may not be required for the purpose of investigation. It is also submitted that accused 3 and 6 are already released on bail. Therefore, there is no reason why the same benefit be refused to the petitioners who also stand on the same footing, it is submitted. Learned counsel for petitioners also submitted that the petitioners are willing to abide by any condition imposed by this Court and that they are totally innocent of the allegations made. 5. It is also pointed out that the petitioners will not flee from law as evident from the fact that they themselves surrendered before the lower court on coming to know that they are implicated in the offence. It was also submitted by learned counsel for petitioner that since the deceased is an activist of the ruling party, the investigation was not proceeded with fairly or impartially, but they were helping persons in the rival group, since they are in power. The petitioners who belong to the rival political party are discriminated against and hence it will be harsh if this court also refused bail to the petitioners only on the ground of opposition BA.1833/08 3 from the side of the respondent, at the instance of the ruling front. 6. This petition is vehemently opposed by learned Director General of Prosecution. He denied all allegations made against the police and the ruling party regarding partiality, unfairness etc. The learned Director General of Prosecution submitted that as in any other case, facts and circumstances of this case may be looked into and a decision may be taken. It is also pointed out that the a detailed statement was filed by respondent showing the details of the cases which have arisen on the ground of political enmity in Thalassery and those themselves will prove that the allegations made against the respondent and the ruling party are incorrect. 7. On the facts and circumstances of the case, I am not going into such details. It is unnecessary to resolve such disputes also, for the purpose of disposal of this petition. Since certain observations were made by this Court during the pendency of this petition , by way of interim orders, the state has challenged the same and the matter is pending before the Supreme Court. Therefore, it may not be proper on my part at this stage to state anything regarding the severe attack made by the petitioners on the fairness of the investigation, the attitude of the ruling party etc. 8. The learned Director General of Prosecution submitted that if the petitioners are released on bail, it will affect the law and order situation in the locality, especially since first accused is a BA.1833/08 4 notorious criminal and he is involved in various other crimes. There is a tense situation in the locality because of political murders and clashes and hence the release of the petitioners will not be conducive at all in the interest of the society itself, it is submitted. Learned counsel for petitioners flatly denied the allegations that the first petitioner is a notorious criminal. He submitted that he was involved in a murder case which also arose out of a political rivalry. He is made as accused in various cases involving political disputes but he is innocent of the alelgations made. In a murder case, he was acquitted by the court. In such circumstances, it is submitted that it will be unfair also even to describe the first accused as a notorious criminal etc. 9. On hearing both sides, I find that the petitioners are in custody for more than 185 days. The charge sheet has been laid and hence they are not required for the purpose of investigation. Accused 3 and 6 are already released on bail. Whatever be the reason for release, no report is received from the respondent that any law and order problem has arisen because of their release. Yet, this court keeps in mind the series of murders and assaults which taken place in Thalassery, as admitted by both sides. One cannot shut his eyes to such realities. But, putting the petitioners in jail for any further period may not be the solution. The state has to find out it own methods to bring in peace in the locality. BA.1833/08 5 10. Before closing this petition, I would refer to the interim order passed by this court on 2.4.2008. Certain directions are seen issued to the respondent to furnish certain details. The said order was challenged before the Supreme Court and it is submitted that the matter is pending before the Supreme Court. As per the order of the Supreme Court dated 14.5.2008 in Appeal(Cr)No(s).3768- 3769/2008 the State is directed to furnish to the High Court particulars as to how many political murders have taken place in the Thalassery Division in the last one year, in how many cases the final report has been filed and in how many cases investigation is going on, with details including dates, parties involved etc., as sought by the High Court as also the stages of all session trials where trials have commenced within two months from the date of order. The learned Director General of Prosecution submitted that the details will be furnished before 14.7.2008. I am of view that this petition need not be kept pending till the matter is looked into after receipt of the relevant details. Hence, I am disposing of this case and appropriate orders/directions, if necessary, will be issued after hearing both sides on the details to be furnished as per directions of this Court. Though the bail application is being disposed of today, in the peculiar circumstances of this case, the report of the State will have to be placed before this Court and called on 15.7.2008. BA.1833/08 6 11. However, on hearing both sides, I am satisfied that further detention of the petitioners may not be necessary. For the purpose of investigation, I am also of view that the petitioners can be released on bail imposing stringent conditions, to ensure that the law and order situation in the locality are not disturbed. Hence, the following order is passed: i) Petitioners shall be released on bail on their executing bond for Rs.1,00,000/- (one lakh) each with two solvent sureties each for the like sum to the satisfaction of the Magistrate Court concerned. In addition to the two sureties, one of the close relatives of each of the petitioners shall also execute a bond for the same amount where she or he is solvent or not, to the satisfaction of the lower court. ii) Petitioners shall report before the investigating officer on every day between 10 AM and 1 PM until further orders. iii) Petitioners shall not leave the limits of the police station, within which the crime is registered, except with the previous permission of the Magistrate Court concerned. iv) Petitioners shall not threaten or intimidate any BA.1833/08 7 member of the rival political party or any witnesses and if this condition is violated, the bail in this case is liable to be cancelled. v) Petitioners shall also not get involved in an offence of similar nature while on bail and in case of breach of this condition also, the bail is liable to be cancelled. This petition is allowed. K.HEMA, JUDGE vgs.