IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 24TH MARCH 2010 / 3RD CHAITHRA 1932 Bail Appl..No. 2673 of 2009() ----------------------------- CRIME NO.254/CR/03 OF CBCID, MALAPPURAM PETITIONER (S): ACCUSED ------------------------------------- BIJOY, S/O. BALAN, VELLATHINGAL HOUSE, MARANCHERY POST, MALAPPURAM. BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR) RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2. DEPUTY SUPERINTENDENT OF POLICE, CBCID (CRIME BRANCH), MALAPPURAM. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/03/2010, ALONG WITH BA NO.3604 OF 2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------ B.A.Nos.2673 & 3604 of 2009 ----------------------------------------------- Dated this the 24th day of March, 2010 O R D E R The petitioner in Bail Application No.2673 of 2009 is accused No.2 and the petitioner in Bail Application No.3604 of 2009 is accused No.3 in Crime No.254 of 2003 of CBCID, Malappuram. 2. The offences alleged against the petitioners are under Sections 120B, 364, 302, 397 , 201, 404 and 414 read with Section 34 of the Indian Penal Code. 3. The case relates to the unnatural death of one Surur in the year 2001. 4. The petitioners apprehend arrest and therefore, they have approached this Court under Section 438 of the Code of Criminal Procedure. 5. When the Bail Applications came up for hearing on 8th July, 2009, the following order was passed: “The petitioner in B.A.No.2673/2009 is the 2nd accused and the petitioner in B.A. No.3604/2009 is the third accused in Crime No.254/CR/2003 of CBCID, Malappuram. The BA No.2673 & 3604/2009 2 incident of case relates to the unnatural death of one Surur in the year 2001. The petitioners submitted that they were questioned by the police on several occasions. The petitioner in B.A.No.2673/2009 submits that he was questioned on more than 70 occasions. It is submitted by the learned counsel appearing for the petitioners in both applications that the respective petitioners are prepared to undergo any tests including Narco Analysis Test. It is also stated that they were already subjected to Polygraph Test at their request. 2. The learned Public Prosecutors submitted that the petitioners were directed to appear on a particular day for further interrogation on the basis of the facts revealed in the Polygraph Test, but they failed to appear. The petitioners submitted that they are prepared to appear before the police on any day and to co- operate with the investigation. 3. It is agreed by the learned counsel for the petitioners and the learned Public Prosecutors that for the time being let the petitioners appear before the police for interrogation on 22nd, 23rd or 24th of July, 2009. The petitioners shall appear before the investigating officer at 10 A.M. on 22nd July, 2009 and they shall appear on the BA No.2673 & 3604/2009 3 subsequent days aforesaid at the time fixed by the investigating officer. 4. The learned public prosecutors undertook that the petitioners will not be arrested until further orders. 5. As it is agreed by the petitioners that they are prepared to undergo Narco Analysis Test. The investigating officer is free to take the petitioners for the purpose of said test on any convenient date after 22.7.2009. Post on 29.7.2009.” 6. The petitioners have complied with the directions in the order dated 8th July, 2009. It is stated by the petitioners that there are no materials to connect them with the offence. They offered to undergo any scientific test including Narco Analysis Test on any date and time as fixed by the investigating officer. In fact, orders were passed to appear before the investigating officer in order to facilitate Narco Analysis Test being conducted. However, the test could not be conducted as no such facilities were available in the State of Kerala. It was also submitted by the learned Public Prosecutors that at the relevant time, Narco Analysis Test was not available in Bangalore as well. The matter BA No.2673 & 3604/2009 4 involved is grave. One person died in unnatural circumstance. The question is who has committed the offence. The petitioners state that without any material to arrive at the conclusion that they are involved in the offence, it is not proper to arrest and detain them. 7. I had occasion to go through the case diary file. It is seen that the investigation was being conducted by various agencies from 2001 onwards and no concrete material or evidence could be obtained, prima facie, to come to the conclusion that the petitioners are involved in the offence. The investigation is still going on. It is submitted by the learned Public Prosecutors that an application was filed before the Director of the Directorate of Forensic Sciences, Gandhi Nagar, Gujarat to provide facilities for subjecting the petitioners to Narco Analysis Test. The counsel for the petitioners submitted that the petitioners are ever ready and willing to co-operate with the investigating agency and to undergo Narco Analysis Test, without raising any objection, at any point of time, during the course of the investigation of the case. 8. In the very peculiar facts and circumstances of the BA No.2673 & 3604/2009 5 case, in spite of the fact that the offence involved is under Section 302 of the Indian Penal Code, I am inclined to pass an order in favour of the petitioners, so as to protect their interests as well and to preserve their personal liberty. There will be a direction that in the event of the arrest of the petitioners, they shall be released on bail on their executing bond for Rs.50,000/- and also subject to the following conditions: a) The petitioners shall report before the investigating officer between 9 A.M. and 11 A.M. on alternate Sundays, till the final report is filed or until further orders; b) The petitioners shall co-operate with the investigating agency and shall make themselves available for interrogation at any time when the investigating officer so demands; c) The petitioners undertake that they will make themselves available for Narco Analysis Test or any other scientific examination at any place of the choice of the investigating officer, at any time as directed by the investigating officer; d) The petitioners shall not leave the State of Kerala without giving prior intimation in writing to the investigating officer; e) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence; BA No.2673 & 3604/2009 6 f) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail; g) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Applications are allowed to the extent indicated above. K.T.SANKARAN, JUDGE csl