IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 Bail Appl..No. 498 of 2010() ---------------------------- CRIME NO.719/2009 OF THALASSERY POLICE STATION .................... PETITIONER/1ST ACCUSED: ------------------------------------------- K.K.NOUSHAD, S/O.ABOOBACKER, AGED 29 YEARS, KANIYANKUNNU HOUSE, KUTTIYATTOOR P.O., PAVANOOR MOTTA, THALASSERY TALUK. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): COMPLAINANT: --------------------------- THE STATION HOUSE OFFICER, THALASSERY POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 04/02/2010, ALONG WITH BA NO. 499 OF 2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.Nos.498 & 499 of 2010 --------------------------------------------- Dated this the 4th day of February, 2010 ORDER The petitioner is accused No.1 in Crime No.716 of 2009 and 719 of 2009 of Thalassery Police Station. Bail Application No.499 of 2010 relates to Crime No.716 of 2009 while Bail application No.498 of 2010 relates to Crime No.719 of 2009. 2. The offence alleged against the petitioner in Crime No.716 of 2009 is under Section 402 of the Indian Penal Code while the offences alleged against the petitioner in Crime No.719 of 2009 are under Sections 362 and 395 of the Indian Penal Code. The petitioner was arrested on 22.11.2009 and he is in judicial custody since then. 3. The prosecution case is that on 22.11.2009, at about 2.45 P.M., the accused persons were found in a car near Thalassery Railway Station, in suspicious circumstances. On inspection, the police found two iron pipes and knife inside the car. They were arrested on 22.11.2009. During investigation, it was revealed that they are involved in Crime No.719/2009 where the allegation is that on 19.11.2009, they abducted a person and took away Rs.2,00,000/- from him. BA No.499/2010 & conn. 2 4. The petitioner and accused Nos.2 and 3 filed Bail Application Nos.7548 and 7549 of 2009 under Section 439 of the Code of Criminal Procedure. As per the order dated 4th January, 2010 bail was granted to accused Nos.2 and 3. However, bail was refused to the petitioner herein. The reason for denying bail to the petitioner is stated in paragraph 3 of the order dated 4th January, 2010 which reads as follows: “It is submitted by the learned Public Prosecutors that the first accused is involved in three other cases, two of which are robbery cases, while in the third one, offence under the Arms Act is alleged. It is submitted that it is not safe to release the first petitioner on bail at this stage, as it is most likely that he may commit offence of similar nature while on bail. The submission made by the learned Public Prosecutors deserves acceptance, in the peculiar facts and circumstances of the case.” 5. It is submitted by the learned counsel for the petitioner that in Crime No.716 of 2009, the offence alleged being under Section 402 of the Indian Penal Code and the charge sheet having been not filed within 60 days of the date of arrest of the petitioner, the petitioner is entitled to default bail BA No.499/2010 & conn. 3 under the proviso to Section 167(2) of the Code of Criminal Procedure. 6. The learned Public Prosecutor submits that charge sheet is not filed so far in the case. Therefore, the petitioner is entitled to default bail in Crime No.716 of 2009. Accordingly, Bail Application No.499 of 2010 is liable to be allowed. 7. However, in Crime No.719 of 2009, the petitioner would be entitled to default bail only on the expiry of 90 days and therefore, he is not entitled to default bail in Bail Application No.498 of 2010 arising out of Crime No.719 of 2009. On the merits also, I do not think that the petitioner can be released on regular bail in Crime No.719 of 2009 in the facts and circumstances mentioned above and also the circumstances mentioned in the order dated 4.1.2010. In the result, (i) Bail Application No.498 of 2010 is dismissed. (ii) Bail Application No.499 of 2010 is allowed. The petitioner shall be released on bail (in Crime No.716 of 2009, Thalassery Police Station) on his executing bond for Rs.25,000/- with two solvent sureties for the like amount to the satisfaction of the Judicial Magistrate of the First Class, Thalassery, subject to the following conditions: BA No.499/2010 & conn. 4 a) The petitioner shall report before the investigating officer between 9 A.M. and 11 A.M. on all Mondays and Thursdays, till the final report is filed or until further orders; b) The petitioner shall appear before the investigating officer for interrogation as and when required; c) The petitioner shall surrender his passport before the Judicial Magistrate of the First Class, Thalassery within a period of one week from the date of release on bail. If the petitioner does not hold an Indian passport, an affidavit sworn to by him to that effect shall be filed before the learned Magistrate within one week from the date of release on bail; d) The petitioner shall not try to influence the prosecution witnesses or tamper with the evidence; e) The petitioner shall not commit any offence or indulge in any prejudicial activity while on bail; f) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. It is made clear that the petitioner shall be released from jail only if his detention is not required in Crime No.719 of 2009 or in any other case. K.T.SANKARAN, JUDGE csl