IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 22ND AUGUST 2011 / 31ST SRAVANA 1933 Bail Appl..No. 5536 of 2011 CRIME NO.116 OF 2003 OF CBCID, KOZHIKODE PETITIONER/ACCUSED NO.:148 ----------------------------------- NIZAMUDEEN, AGED 28 YEARS, S/O.MAMUKOYA, KALLUVETCHA VEETTIL HOUSE, BEYPORE AMSOM AND DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.K.VARGHESE RESPONDENT: COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. STATE PROSECUTOR SRI.T.ASIF ALI PUBLIC PROSECUTOR SRI.C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 22/08/2011, ALONG WITH BA NO. 6410 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. Nos.5536 & 6410 OF 2011 ------------------------------------------------------ Dated this the 22nd day of August, 2011 O R D E R These are applications for bail under Section 439 of the Code of Criminal Procedure. The petitioner in B.A.No.5536 of 2011 is accused No.148 and the petitioner in B.A.No.6410 of 2011 is accused No.95 in Crime No.116 of 2003 of CBCID, Kozhikode. 2. The offences alleged against the petitioners are under Sections 120B, 143, 147, 148, 324, 326, 307, 302, 153A read with Section 34 and 149 of the Indian Penal Code, Sections 3, 4 and 5 of the Explosive Substances Act, Section 27(1) of the Arms Act and Sections 7 and 9 of the Religious Institutions (Prevention of Misuse) Act. 3. The final report was filed in the case and the case was tried before the Court of the Special Additional Sessions Judge (Marad Cases), Kozhikode in S.C.No.555 of 2003. It is submitted that since some other accused surrendered subsequently, there was a fresh BAIL APPL. NOS.5536 & 6410 OF 2011 :: 2 :: committal and Sessions Case Nos.701 of 2003 and 446 of 2004 were also tried along with the parent case, namely, S.C.No.555 of 2003. 4. A total number of 148 persons were arrayed as accused in the case. The incident occurred on 2.5.2003. In the incident, eight persons were murdered and several persons were injured. The case is popularly known as “Marad case”. 5. After trial, 62 persons were convicted and sentenced to undergo imprisonment for life. Challenging the conviction and sentence, Crl.A.No.479 of 2009 was filed and it is pending before this Court. 6. While so, accused No.95 was arrested on 24.1.2011 and accused No.148 was arrested on 15.10.2010. They were remanded to judicial custody. Their applications for bail were dismissed by the Sessions Court. B.A.Nos.8012 of 2000 and 2142 of 2011 filed by accused No.148 before this Court were dismissed as per the orders dated 14.1.2011 and 28.3.2011 respectively. BAIL APPL. NOS.5536 & 6410 OF 2011 :: 3 :: 7. The learned counsel for the petitioners submitted that the case against the petitioners is similar to the case put forward against the accused who were acquitted by the Sessions Court and therefore, there is no justification for continuing the judicial custody of the petitioners. 8. The Bail Applications were strongly opposed by the State Prosecutor. It was contended that for more than eight years, the petitioners were absconding and their presence before Court could not be secured in spite of the best efforts. If the petitioners are released on bail, they would make themselves scarce making it impossible for the Court to complete the trial of the case. The trial court, after considering all the aspects of the case, denied bail to the petitioners on the ground that if the petitioners are released on bail, there is every likelihood of their absconding and fleeing from justice. 9. The contention put forward by the petitioners that there is every likelihood of the petitioners being acquitted in the case, cannot be considered at this stage. The only question to be considered in the Bail Applications is whether bail should be granted to the petitioners. BAIL APPL. NOS.5536 & 6410 OF 2011 :: 4 :: 10. It is not in dispute that the petitioners were not available for being arrested for more than eight years. They have surfaced only recently and even then the petitioners did not surrender but they were arrested. If the petitioners are released on bail, there is every likelihood that they may make themselves scarce and flee from justice. If their presence cannot be secured before Court, it would not be possible to complete the trial of the case against them. It is also likely that the petitioners would intimidate or influence the prosecution witnesses. For the aforesaid reasons, the Bail Applications are dismissed. (K.T.SANKARAN) Judge ahz/