IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN THURSDAY, THE 21ST MAY 2009 / 31ST VAISAKHA 1931 Bail Appl..No. 2593 of 2009() ----------------------------- CRMP.4164/2009 of CHIEF JUDL.MAGISTRATE, ERNAKULAM (CRMP 4164/2009) .................... (CRIME NO.703/2005 OF FORT POLICE STATION TRIVANDRUM) PETITIONER : ------------- JITHAKUMAR, AGED 42, S/O.KAMALASANAN NAIR, KAMALALAYAM, VP3-555 B, VILAVOORKAL, MALAYANKEEZHU P.O., THIRUVANANTHAPURAM. BY ADV. SRI.S.SUDHISH KUMAR RESPONDENT(S): --------------- 1. THE INSPECTOR OF CBI/SCB/CHENNAI BY CBI PROSECUTOR. 2. STATE OF KERALA REPRESENTEDBY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. FOR R1 THIS BAIL APPLICATION HAVING UP FOR ADMISSON ON 19/05/2009, ALONG WITH BA NO. 2620 OF 2009, THE COURT ON 21/05/2009 PASSED THE FOLLOWING: SPC P.S.GOPINATHAN, J. ====================================== B.A.Nos.2593 and 2620 of 2009 ====================================== Dated this the 21st day of May 2009 ORDER On 27.9.2005, two persons by name Udaya Kumar and Suresh Kumar were taken into custody along with some money by the petitioners herein who were working as police constables in Fort Police Station, Thiruvananthapuram and produced before the Station House Officer along with a report alleging that the money was stolen property and the two persons were offenders on the basis of which a case as Crime No.703 of 2005 was registered for offences under Sections 41(1)(d) and 102 of the Code of Criminal Procedure. It is reported that while in custody, Udayakumar died. Consequently, another case as Crime No.704/2005 was registered under Section 174 of the Code of Criminal Procedure as it is a case of unnatural death. Subsequently, after investigation in Crime No.704 of 2005, a charge sheet was filed against the petitioners herein and another for offences under Sections 323, 331 and 302 read with Section 34 IPC. The case was committed to the Court of Sessions and the petitioners herein and another were facing trial in S.C.No.1542 of 2006. During the course of the trial, the B.A.No.2593 of 2009 2 mother of the deceased filed a petition as W.P.(C) No.24258 of 2007 before this Court and further investigation was ordered by order dated 20.9.2007. The respondent was asked to take up the investigation. In Crime No.703/2005 further investigation was ordered by this Court as per Order dated 8.7.2008 in W.P. (C) No.12365 of 2008. Consequently, the respondent re- registered both cases and Crime No.703 of 2005 was re- registered as R.C.No.5/(S)/08/CBI/Chennai. Thus investigation in both cases is taken over by the respondent. During the course of the investigation, the respondent issued notice to the petitioners to appear before the investigating officer on 20.4.2009. Responding to the notice, the petitioners appeared before the investigating officer. Surprisingly, the petitioners were arrested with an allegation that they had committed offences under Sections 331, 348, 466, 474 read with Section 120B IPC in the former case and arrest memo was served upon. Petitioners were produced before the Chief Judicial Magistrate, Ernakulam who remanded them to judicial custody. Their separate applications for bail was dismissed by common order dated 25.4.2009. The petitioners separately moved the B.A.No.2593 of 2009 3 Sessions Court, Ernakulam for orders to release them on bail. The learned Sessions Judge, by common order dated 4.5.2009, declined the request. Now, these petitions seeking an order to release the petitioners on bail. 2. The learned counsel appearing for the respondent strongly opposed the petitions stating that the investigation is in midway and the respondent has to interrogate the witnesses and that two days back another two accused were also arrested and that investigation is fast progressing and that in the event if the petitioners are released on bail at this stage, there is every likelihood of tampering the evidence and also interfering with the investigation by influencing the witnesses. On the other hand, the learned counsel for the petitioners would argue that the petitioners were prosecuted in Crime No.704/2005 even for murder and that during the course of investigation, they were in custody for a pretty long period and that the trial for various offences including murder is almost at the final stage and it is at that stage, the petitioners were again apprehended with an allegation that in the other crime, the petitioners had also committed offences under Sections 331, B.A.No.2593 of 2009 4 348, 466 and 474 and that except the offence under Section 466, the other offences alleged are bailable and even going by the allegations against the petitioners in the remand report, no offence under Section 466 is disclosed whereas only an offence under Section 465 which is also bailable alone is disclosed and hence the petitioners are entitled to be released on bail. 3. Having heard either side and perusing the case diary produced by the respondent, I find that the investigation by the respondent is fast progressing, but in midway and they are earnestly investigating the case and two days back two other accused were arrested. As argued by the respondent, investigation is in crucial stage and it is too early to ad-judge that no offence under Section 466 is disclosed, but only an offence under Section 465 is disclosed. Taking into account of the entire facts and circumstances of the case, it appears that detailed investigation is warranted. On an over all consideration and also taking into account of the peculiar circumstances of this case, it could not be said that the apprehension of the prosecution is out of place. I find that the courts below were justified in rejecting the request of the petitioners. Time is not B.A.No.2593 of 2009 5 ripe enough to release the petitioners on bail. In the result, both these petitions are dismissed with liberty to apply afresh as and when the investigation is further progressed. P.S.GOPINATHAN, JUDGE css/