IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 7TH OCTOBER 2009 / 15TH ASWINA 1931 Bail Appl..No. 5767 of 2009() ----------------------------- CRIME NO. NOT KNOWN PETITIONERS --------------------- 1. SELVARAJ S/O.A.VELAYUDHAN, VALAYATHODU HOUSE, W VELIYATHUNADU PO, ALUVA. 2. RAJEEV K.A., AGED 42 YEARS S/O.AYYAPPAN, KAREEPARAMBIL HOUSE MANNAM PO, NORTH PARAVUR. BY ADV. SRI.K.B.GANGESH SMT.SMITHA CHATHANARAMBATH RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM CI OF POLICE NORTH PARAVUR POLICE STATION 2. SUPERINTENDENT OF POLICE ALUVA. PUBLIC PROSECUTOR SRI.TEKCHAND THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 07/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. --------------------------------------------- B.A.No.5767 of 2009 --------------------------------------------- Dated this the 7th day of October, 2009 ORDER This is an application under Section 438 of the Code of Criminal Procedure for anticipatory bail filed by Selvaraj and Rajeev K.A., apprehending arrest on an accusation of having committed non bailable offence in Crime Nos.762 of 2009 and 763 of 2009 of Varkala Police Station. 2. Crime No.762 of 2009 was registered for the offence under Section 302 of the Indian Penal Code. The victim in that case was one Sivaprasad who was attacked by several people while the deceased was engaged in the morning walk. Crime No.763 of 2009 relates to the attempt to murder of one Asokan by several accused persons. Both these incidents took place on 23.9.2009 at Varkala. 3. It is submitted by the Director General of Prosecution that the investigation revealed that both the aforesaid incidents were the result of common conspiracy. Accordingly, both the cases were clubbed together and the cases are being BA No.5767/2009 2 investigated for the offences under Sections 143, 147, 148, 149, 120B, 109, 302 and 307 of the Indian Penal Code and Section 27 of the Arms Act. 4. Both the aforesaid incidents took place in the early hours on 23.9.2009. The distance between the two places, where the incidents occurred, is hardly 3 kms. 5. The learned Director General of Prosecution submitted that the investigation reveals that the offences were committed by the activists of Dalit Human Rights Movement (DHRM) with a motive to gain predominance among the members of the public. It is alleged that DHRM planned several criminal activities at various places in order to create terror in the minds of people. It is alleged that the investigating agency suspects that DHRM is involved in the incident of setting fire to the documents in the court rooms of Judicial Magistrate of the First Class Courts in Kollam. 6. It is submitted that the investigation further reveals that on the same date DHRM planned to commit offences at two places near Varkala in a similar manner to create terror. But, due to a vehicle accident, the activities could not be carried out BA No.5767/2009 3 as planned by the DHRM activists. 7. On 29.9.2009, one Jayan @ Jayachandran was arrested. On 1.10.2009, Madhu @ Saji was arrested. It is alleged that Madhu @ Saji participated in the conspiracy and part of the conspiracy took place in his residence. Madhu @ Saji is involved in another crime, namely, Crime No.759/09 where the offences include an offence under Section 307 IPC and Section 27 of the Arms Act. The offence alleged therein was that the DHRM activists attacked one Sabu on 21.9.2009 while he was engaged in the preparations for the celebration of Sreenarayanaguru Samadhi. 8. On 3.10.2009, Sudhi, Subhash @ Soman and Sunil were arrested. 9. The learned counsel for the petitioners submitted that the petitioners are respectively the Chairman and Secretary of Dalit Human Rights Movement. The organisation was registered in the year 2007 under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act. The counsel submits that several persons belonging to the schedule Castes and Schedule Tribes are members of the organisation. They are BA No.5767/2009 4 involved in the upliftment of the members of the Schedule Castes and Schedule Tribes. Of late, the organisation has realised that there is no point in obeying the commands of various political leaders and involving in the activities of political parties. They believe that the interests of the Dalits are not being protected by the political parties. They decided to have their own organisation and a separate set up. In implementation of their programme in a democratic way, they decided to contest in the last parliamentary election in Attingal Parliamentary Constituency. It is stated that their candidate secured considerable number of votes and he secured the fifth place in terms of the number of votes. According to the counsel for the petitioners, the organisation feels that this incident itself created a fear in the minds of the political parties that very soon DHRM may emerge as a power in the political arena and that the vote banks on which the political parties were relying on would soon vanish. According to the counsel for the petitioners, that is the reason why the leaders of DHRM are aimed at. The attempt to arrest the petitioners on the accusation of having involved in the present case is aimed at destroying their organisation itself, BA No.5767/2009 5 submits the counsel. 10. The learned counsel for the petitioners also pointed out, with reference to Annexures 1 and 2 news paper reports that the DHRM activists were falsely implicated in another case. Later, investigation revealed that the offence was committed by another person who has absolutely no connection with the activities of DHRM. 11. It is not in dispute that the deceased Sivaprasad was not an activist of any political party. He had no enemies, submits the learned Director General of Prosecution. He is not involved in any controversial activities. There was no reason to aim at the life of Sivaprasad. It is submitted that without any rhyme or reason, he was murdered by the activists of DHRM only to gain importance in the society. It is alleged that DHRM is not very particular that importance should be gained by popular activities and it does not matter to them if the importance is gained by indulging in criminal activities. It is submitted that the people in general are put to fear of attack anywhere, by any one, at any point of time. There is no safety for the common men and they are prone to attack at any time. The learned Director General of BA No.5767/2009 6 Prosecution submits that the safety and security of the general public is more important than the liberty of the individual or the activities of an organisation. 12. The investigation is at the initial stage. A heinous crime was committed. Several crimes were planned, but only two could be accomplished. The investigating agency suspects a wide network in the alleged illegal activities of DHRM. The involvement of the petitioners is a matter to be investigated. The apprehension of the petitioners that there is every likelihood of the petitioners being arrested, is not just and reasonable, submits the learned Director General of Prosecution. The petitioners would be arrested, it is submitted, only if sufficient materials are forthcoming after investigation that they are involved in the criminal conspiracy. The attempt of the investigating agency is not the one as alleged by the learned counsel for the petitioners. On the other hand, their attempt is only to find out the real culprits and the persons who are really involved in the offence and in the conspiracy. The investigating agency is not influenced by any political consideration or interested in any of the matters about which mention is made by BA No.5767/2009 7 the learned counsel for the petitioners. In the facts and circumstances of the case, I am of the view that the petitioners are not entitled to the discretionary relief under Section 438 of the Code of Criminal Procedure. Their apprehension that they would be arrested and they would be subjected to consequent harassment and humiliation, appears to be without any basis, as pointed out by the learned Director General of Prosecution. The investigation has just commenced. The complicity of the petitioners is under investigation. At this juncture, the petitioners cannot be allowed to get an order of anticipatory bail which would have the effect of prejudicially affecting the smooth progress of the investigation. I am not impressed by the submission made by the learned counsel for the petitioners that the utmost important thing is the personal liberty of the petitioners. When the personal liberty of an individual is pitted against that of the general public and the common man, the right of the former would be of less importance. The safety and security of the general public is more important than anything else. People should not be put to constant fear of attack by antisocial elements, terrorists, BA No.5767/2009 8 goondas or activists of an organisation of a group of persons. When such an eventuality is apprehended as pointed out by the learned Director General of Prosecution, the court cannot ignore the same and consider the personal rights and individual freedom of a few persons as more important. For the aforesaid reasons, the Bail Application is dismissed. K.T.SANKARAN, JUDGE csl