IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 Bail Appl..No. 26 of 2008() ------------------------------------- (PETITIONERS ARE ACCUED IN SESSIONS CASE NO.555/2003, PENDING BEFORE THE SPECIAL ADDITIONAL SESSIONS COURT (MARAD CASES) KOZHIKODE) PETITIONERS/ACCUSED NOS.61,82,83,101,102,103,121 & 126: ------------------------------------------------------------------------------------------ 1. SIRAJ, S/O. YUSAF, KINATTINGALAKATTHU VEEDU, MARAD. 2. NAVAS, S/O. ALI, KINATTINGALAKATTHU VEEDU, MARAD. 3. SAKEER, S/O. HAMSA, ABOOBAKARAKATH VEEDU, MARAD. 4. ABDUL SHUKUR @ SHUKUR, S/O. ABDULLAKUTTY, PALLIKANDI VEEDU, KOYA ROAD, PUTHIYANGADI. 5. BICHIKOYA, S/O. HAMSA, THYKOTTAPARAMBA VEEDU, KOYA ROAD, PUTHIYANGADI. 6. HANEEFA @ FAROOK, S/O. HAJI, SHAIK MOIDEEN, MUKHADAR BEACH, THEKKUMTHALAPARAMBU, PALLIKKANDI. 7. ALIKOYA, S/O. BEERAN KUNHI, THEKKEPURATHU VEEDU, MARAD. 8. MAMMED KOYA, S/O. ALASSANKUTTY, PUTHENPEEDIYEKKAL VEEDU, MARAD. BY ADV. SRI.G.JANARDHANA KURUP (SR.) RESPONDENT: COMPLAINANT: ------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY DIRECTOR GENERAL OF PROSECUTION SRI. P.G.THAMPI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23/01/2008 ALONG WITH B.A.NO.27 OF 2008, B.A.NO.29 OF 2008, B.A.NO.35 OF 2008 AND B.A.NO.65 OF 2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss R. BASANT, J. ------------------------------------------------- B.A. Nos. 26, 27, 29, 35 & 65 OF 2008 ------------------------------------------------- Dated this the 23rd day of January, 2008 ORDER These applications for bail are filed by the petitioners who face indictment in a prosecution for offences punishable, inter alia, under Secs.120B and 302 of the IPC in what is by now known as “Marad Massacre Case” 2. The incident in this case took place on 2/5/03. All the petitioners have been arrested on various dates in May, June and July 2003. The trial has already commenced. It has reached the fag end of the trial. Adducing of evidence is over. Arguments have commenced. 3. I have adverted to the facts and circumstances in detail in the common order dated 19/12/087 in B.A.Nos.7160 & 7162/07. Bail was granted to the said petitioners subject to very strict conditions which it was hoped would allay the B.A. Nos. 26, 27, 29, 35 & 65 OF 2008 -: 2 :- apprehensions of the learned Director General of Prosecutions and ensure justice. 4. The petitioners herein have come before this Court with a prayer that they may be enlarged on bail. The learned D.G.P. opposes the bail applications in respect of all other petitioners except the petitioner in B.A.27/08. He is accused No.131. He has remained in custody from 3/5/03. On humanitarian considerations and considering the nature of the illness of this terminally ill accused, the State does not want to oppose the application for bail, submits the learned D.G.P. The learned D.G.P. prays that appropriate conditions may be imposed which shall ensure the interests of a speedy culmination of the trial and the interests of the law and order and communal harmony. Identical conditions as were imposed by this Court as per the order dated 19/12/07 may be imposed on the said petitioner/accused No.131, submits the learned D.G.P. 5. But in so far as all other accused persons are concerned, the learned D.G.P. opposes the application. The learned D.G.P. submits that the trial is almost complete. What remains is only completion of arguments, which have already commenced, and pronouncement of judgment. In these circumstances, the petitioners may not be enlarged on bail. Such release is likely to B.A. Nos. 26, 27, 29, 35 & 65 OF 2008 -: 3 :- hamper the smooth culmination of the trial and pronouncement of the judgment. It is also likely to result in “imbalance of communal harmony” submits the learned D.G.P. borrowing the words in the instructions given to him. The learned D.G.P. was requested pointedly to explain whether the State has any specific or definite information regarding any one of the petitioners that they are likely to endanger and disturb the communal harmony. Except a blanket statement that their release is likely to result in imbalance of communal harmony, no other specific grounds are raised. 6. Pressed pointedly by this Court to explain any reasons which should weigh with this Court to refuse bail in respect of any of the petitioners, the learned D.G.P. has produced before this Court a copy of the instruction received by him which states that accused Nos.83, 131, 138, 122 and 142 are involved in other crimes, the details of which are given in that statement. No other grounds are raised. 7. The learned counsel for the petitioners submit that the petitioners are innocent; that the materials adduced in evidence against them fall significantly short of sufficient and adequate materials to found any conviction against them and that they may, in these circumstances, be enlarged on bail. The learned B.A. Nos. 26, 27, 29, 35 & 65 OF 2008 -: 4 :- D.G.P. on the contrary has filed a detailed statement, wherein he has pointed out several circumstances which have been brought out against the petitioners in the course of trial which, according to the learned D.G.P., is sufficient to invite adverse orders against them. 8. Be that as it may, at this stage of the proceedings, I shall not embark on any detailed discussion on merits about the acceptability of the materials already adduced before the learned Special Judge in the trial, lest such observations may send unintended messages to the trial court when it is ultimately called upon to appreciate evidence. I shall therefore steer clear of the request to make an assessment of the materials available to decide whether the petitioners can be released on bail or not. 9. This common order must be read in continuation of the common order dated 19/12/07. I have adverted to the facts and circumstances in detail in the said order. I am hence not adverting to the facts and circumstances all over again. 10. In the final analysis, I am persuaded to grant bail to the petitioners herein also like the two other accused, in whose favour bail has already been granted for the simple reason that the constitutional ideal of speedy trial is not observed in the facts and circumstances of this case. Exceptional are the facts B.A. Nos. 26, 27, 29, 35 & 65 OF 2008 -: 5 :- and circumstances; gruesome is the offence alleged; shocking is the crime allegedly committed; but all these cannot detract against the ideal of speedy trial to which even the worst offender is entitled to. Only because the constitutional virtue and ideal of speedy trial has not been achieved, I am persuaded to agree that the petitioners herein also, like the petitioners who have been granted bail already, are entitled to be enlarged on bail. Appropriate safeguards and conditions can be insisted and imposed to ensure that the liberty granted to the petitioners are not abused by them and that the apprehensions aired by the learned D.G.P. of disturbance of the balance of communal harmony. Any possibility hindrance to the expeditious disposal of the case can be provided against. 11. It is true that in a case where even the defence evidence has been closed and arguments have commenced, normally this Court would have wanted the court below to dispose of the case expeditiously and the status quo of the petitioners remaining in custody to continue till such disposal. But I am pained to note that there is no prospect of immediate disposal of the case. The report of the learned Special Judge tells me that 10 months further time from the date of the report would be required for the completion of the trial and B.A. Nos. 26, 27, 29, 35 & 65 OF 2008 -: 6 :- pronouncement of the judgment - 2 months for the completion of the arguments of the prosecution, another 2 months for the completion of the arguments of the defence and another 6 months for the completion of the judgment. This Court has been monitoring the progress of the case and wanting the learned Special Judge to complete the trial and dispose of the same expeditiously. But in spite of all such monitoring and directions issued, it now is clear that the final disposal is at least 10 months away. I need only observe that in such a trial the Special Court constituted can certainly go on with the preparation of judgment except the consideration of the disputed points and the learned Special Judge need not wait till all the arguments are over to start the work in respect of the preparation of the judgment. I do not want justice to be hurried or burried or in any way interfere with the minimum time which the learned Judge requires for disposal of the case. But I must observe that the learned Special Judge must be alert to imbibe the need for speedy disposal. It is the expressed inability of the learned Special Judge to dispose of the case earlier that constrains me to take the view that the petitioners can now be released on bail. I stop short there. I am satisfied that the petitioners can be directed to be released on bail subject to B.A. Nos. 26, 27, 29, 35 & 65 OF 2008 -: 7 :- appropriate terms and conditions. 12. These petitions are accordingly allowed. The petitioners shall be released on bail on the following terms and conditions: (i) They shall execute bonds for Rs.2 lakhs (Rupees two lakhs only) each with three solvent sureties, of which one must be a blood relative of the petitioners and the remaining, two solvent sureties to the satisfaction of the learned Special Judge. (ii) The petitioners shall reside at a place to be specified by them even before they are released on bail, within 3 Kms. of the of the Court building of the learned Special Judge, until the judgment is pronounced finally. (iii) At least one of the sureties shall be present with the accused at all times after their release. The sureties or any one of them shall bring the accused to the court on every date of posting and take them from the court to the specified place of residence after the court adjourns. (iv) The petitioners shall not travel to any other place except from court to the place of residence and from the place of residence to the court accompanied by the sureties or any one of them. (v) They shall not meet, contact or interact with any one B.A. Nos. 26, 27, 29, 35 & 65 OF 2008 -: 8 :- other than their counsel or close relatives i.e., parents, spouses, children or siblings or any other person the Special Judge may approve on their request. A statement shall be filed by the petitioners of all such persons whom they want to meet and interact with while they are on bail as per this order, prior to their release, which shall be considered and approved by the learned Special Judge. (vi) The petitioners and their sureties shall undertake that the petitioners shall be present before court on all dates of posting. They shall further undertake that if for any reason – justifiable or otherwise, they are not present before court to enable the court to proceed with the arguments, hearing on the question of sentence or delivery of judgment, such steps or any other steps which are to be taken in the case can be undertaken without their presence exempting them from their personal appearance. An affidavit shall be filed by the petitioners. In such affidavit, they shall undertake that in the unlikely event of their absence from court for any reason justifiable or otherwise, the court can proceed with the trial in their absence while simultaneously initiating coercive processes against them. It is directed that the court shall be at liberty to proceed hereafter assuming that the petitioners are present before court on all B.A. Nos. 26, 27, 29, 35 & 65 OF 2008 -: 9 :- dates till the stage of final pronouncement of the judgment/sentence. Such an extra ordinary direction appears to be necessary in the interests of justice and for the orderly further progress of the case without interruption and also to allay the apprehensions aired by the learned D.G.P. (vii) The State shall be at liberty to place police surveillance for the petitioners while they are on bail. The State has the duty to ensure that their movements are monitored and any attempt to commit breach of the obligations under this order is not permitted to take place. Alertly the State has to ensure that these conditions are complied with. (viii) Breach of conditions, if any, shall be promptly reported by the police to the learned Special Judge and prompt action shall be taken by the learned Special Judge. For such action the learned Special Judge shall assume that the conditions have been imposed and the bail has been granted by the learned Special Judge himself. (ix) For the State to make necessary arrangements regarding surveillance etc., it is directed that the petitioners shall not be released from custody on the strength of this order prior to 6/2/08. In the meantime, they shall file statements/ undertakings before the learned Special Judge with a copy to the B.A. Nos. 26, 27, 29, 35 & 65 OF 2008 -: 10 :- Prosecutor in charge. The learned Special Judge shall consider whether the conditions have been strictly complied with and then only direct their release from custody on or after 6-2-2008. (x) Regarding accused No.131 – the petitioner in B.A. No.27/08, there shall be a further direction that this order shall not stand in the way of the petitioner proceeding to the Medical College Hospital, Kozhikode, in connection with his treatment. If he were to proceed to any other higher centre for his treatment, he shall take prior permission of the learned Special Judge for so proceeding to such centre. 13. I do further reiterate that the learned Special Judge must make every endeavour to pronounce final judgment as expeditiously as possible. (R. BASANT, JUDGE) Nan/