IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.12.2009 CORAM THE HONOURABLE MR.JUSTICE M. CHOCKALINGAM and THE HONOURABLE MR.JUSTICE V. PERIYA KARUPPIAH CRL. APPEAL No.767 of 2009 Sundaramurthy ..Appellant/ Petitioner / Accused Vs. State rep. By The Deputy Superintendent of Police "Q" Branch, C.I.D., Dharmapuri, Dharmapuri District. (Uthangarai P.S. Cr.No.1004/2002, 1005/2002, 1006/2002 & Kallavi P.S.Cr.No.434/2002) .. Respondent /Respondent/ Complainant This criminal appeal is preferred under Section 34(4) of POTA Act against the order dated 3.11.2009 made in Crl.M.P.No.244/2009 in Spl.C.C.No.4 of 2006 on the file of the Court of Sessions for Trail of Bomb Blast and POTA Cases, Poonamallee at Chennai rejecting the bail to the Appellant. For Appellant : Mr.R.Sankarasubbu For Respondent : Mr.P.Venkatasubramanian Special Public Prosecutor for POTA cases. J U D G M E N T (The judgment of the Court was delivered by M.CHOCKALINGAM,J.) This appeal has arisen from the order of dismissal made by the Special Judge for Trial of Bomb Blast and POTA Cases, Poonamallee at Chennai, in Crl.M.P.No.244/2009 in Spl.C.C.No.4 of 2006 wherein the appellant was shown as the 34th accused. 2. The Court heard the learned counsel for the appellant/petitioner and also the respondent/State. 3. It is not in controversy that the appellant along with 33 others stood charges for the offence under section 3(5) of POTA and https://hcservices.ecourts.gov.in/hcservices/ 120(B) IPC and other provisions. Aggrieved by the order of dismissal of bail, this appeal has been broughtforth. 4. The learned counsel for the appellant would urge, in the instant case, according to the prosecution, the occurrence has taken place on 24.11.2002. When the F.I.R. was registered, the petitioner was not shown as an accused. Thereafter, when the charge-sheet was laid, the appellant was shown as 34th accused. He did not know about the pending proceedings. He was arrested on 8.7.2007 and he was in prison for the past 2 ½ years. The prosecution had no evidence except the confessional statement made by the co-accused one Gurusamy who was shown as the third accused in the charge sheet but his evidence is inadmissible. Except this piece of evidence, the prosecution has no further evidence to offer. In the instant case, insofar as the accused is concerned, he is in prison for the past 2 1/2 years except this accused, all other accused are enjoying bail all along. The learned counsel for the appellant would further submit that a review committee was constituted and the writ petition filed in respect of review committee is also pending. Hence, the trial Court could not proceed in view of the pendency of the writ petition. Added further learned counsel, in the instant case, when bail was granted to the other accused, there cannot be any reason or justification in rejecting the bail in favour of the appellant. Under such circumstances, it is a fit case where bail has got to be granted. 5. The application was mainly objected to by the learned Special Public Prosecutor, on the ground stating that it is true, the appellant is the 34th accused. Whether the evidence is available or not is a matter of appreciation at the time of trial and not at this stage. It is also true the writ petition is pending in respect of the review committee but no stay of trial proceedings was granted by this Court. The trial could not be proceeded, not because of the pendency of the writ petition, but because of the abscondance of the other four co-accused. After the bail was granted in favour of the other four accused, they did not appear before the Court for trial and the non-bailable warrant was also issued against them which is pending for a long time. The matter is ripe for trial. The appellant is absconding for early 5 years from the date of occurrence and with great difficulty, he was secured. If he is let on bail, he may again abscond and there is no assurance that he will appear for trial. Under such circumstances, the appeal got to be dismissed. 6. After hearing both sides and looking into the materials available, the Court is of the considered opinion that it is not a fit case where bail could be granted. 7. The occurrence has taken place on 24.11.2002. At the time when the charge sheet was laid, the appellant was shown as the 34th accused. He did not have knowledge of the pending proceedings. He was arrested on 8.7.2007. As could be seen from the available https://hcservices.ecourts.gov.in/hcservices/ materials, he was absconding for a period of 5 years and with great difficulty, he was secured. The contention of the learned counsel for the appellant that the only evidence that was available against the appellant is the confessional statement alleged to have been made by the third accused, Gurusamy which is inadmissible evidence, cannot be appreciated or countenanced at this stage. It is a matter of appreciation by the trial Court at the time of trial and not at this stage. Hence, the application filed for bail was rejected by the trial Court. 8. It is well settled principle of law that in a case like this, when long abscondance is noticed, it is suffice to refuse bail. Further, bail was granted to four co-accused and according to the learned Special Public Prosecutor, those four accused were absconding and they were not appearing before the Court and non-bailable warrants are pending against them. The contention of the learned counsel for the appellant pointing to the counter filed by the respondent wherein it is stated that 28 accused has been granted bail, cannot be a reason for grant of bail of the appellant. 9. It is true that the other accused are enjoying bail. It is also true that the petitioner is inside for the past 2 ½ years but at the same time, the Court is appraised of the above circumstances that the appellant had absconded for 5 years and with great difficulty, he was arrested and further, the four co-accused who were enlarged on bail are now, absconding and the case is ripe for trial. The trial Court could not proceed with the trial due to the abscondance of the co-accused. Therefore, it is not a fit case for grant of bail. Hence, the appeal requires an order of dismissal. Accordingly, the appeal is dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To 1. The Sessions Judge for Trail of Bomb Blast and POTA Cases, Poonamallee, Chennai 2. The Deputy Superintendent of Police, 'Q'Branch, C.I.D,Dharmapuri, Dharmapuri District 3. The Public Prosecutor, High Court, Chennai. Crl.Appeal.No.767 of 2009 BV(CO) sra 04.01.2010 https://hcservices.ecourts.gov.in/hcservices/