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. 1720 of 2010() ----------------------------- BA.7837/2009 of D.C. & SESSIONS COURT, ERNAKULAM CRIME NO. 154/2004 OF PALARIVATTOM POLICE STATION AND CRIME NOS. 350/2004 AND 351/2004 OF ERNAKULAM TOWN NORTH POLICE STATION .................... PETITIONER/ACCUSED : --------------------------- THIRUMALI KUMAR @ V.KUMAR, S/O.VELUSWAMY, BLOCK 3/76A, SOUTH PANAVADALI, PANAVADALICHATHIRAM, SANKARANKOIL, TK NELLAI DISTRICT. BY ADVS. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. RESPONDENTS/STATE : --------------------------- 1. STATE, REPRESENTED BY SUB INSPECTOR OF POLICE, PALARIVATTOM, (CRIME NO.154/04). 2. STATION HOUSE OFFICER, ERNAKULAM TOWN NORTH POLICE STATION, (CRIME NOS.350/04 & 351/04). BOTH REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY SRI. M.S. BREEZ PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 24/03/2010 ALONG WITH B.A.NOS. 1915/2010 AND 1916/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. ------------------------ B.A. Nos. 1720, 1915 and 1916 of 2010 ---------------------------------------------- Dated this the 24th day of March, 2010 O R D E R These Bail Applications are filed by Thirumali Kumar @ V. Kumar, one of the accused in three cases. Bail Application No. 1720/2010 was filed by him seeking bail in respect of all the three cases. An objection was raised by the learned Public Prosecutor that one Bail Application was not maintainable in respect of three cases. 2. The learned counsel for the petitioner submitted that Bail Application No. 1720/2010 can be treated as one filed in Crime No. 154/2004 of Palarivattom Police Station, which is now pending as C.P. No. 24/2009 on the file of the Court of the Judicial Magistrate of the First Class-I, Ernakulam. Thereafter, the petitioner filed the other two Bail Applications. Thus the preliminary objection is not available now. 3. The petitioner had filed Bail Application Nos. 7819, 7837 and 7818 of 2009 before this Court for the same relief as made in the present Bail Applications. Those Bail Applications were B.A. Nos. 1720, 1915 and 1916 of 2010 2 disposed of by the common order dated 03.02.2010[reported in (2010 (1) KLT 579)]. For the sake of convenience, paragraphs 1 to 7 therein are extracted below: “The petitioner, Thirumali Kumar, who is an accused in C.C.Nos.2168 of 2004 and 2169 of 2004 and in C.P.No.24 of 2009, on the file of the Court of the Judicial Magistrate of the First Class I, Ernakulam, seeks bail under Section 439 of the Code of Criminal Procedure, respectively in B.A.Nos.7819 of 2009, 7837 of 2009 and 7818 of 2009. 2. The crimes were registered in the year 2004. The offences alleged against the petitioner (first accused) in C.C.No.2168 of 2004 are under Sections 454 and 380 read with Section 34 of the Indian Penal Code. The allegation is that the accused persons committed theft of gold ornaments from the house of the de facto complainant on 12.12.1996. In C.C.No.2169 of 2004, the petitioner is the second accused. The offences alleged against the accused therein are under Sections 454, 461 and 380 read with Section 34 of the Indian Penal Code. The prosecution case is that the accused persons committed B.A. Nos. 1720, 1915 and 1916 of 2010 3 theft of gold ornaments and other articles from the house of the de facto complainant on 28.6.1998. 3. C.P.No.24 of 2009 relates to Crime No.154 of 2004. The petitioner is accused No.4 therein. The offence alleged against the accused is under Section 402 of the Indian Penal Code. It is alleged that on 30.7.2004, the accused persons were found making preparations for committing decoity. 4. In all the aforesaid cases, the petitioner was released on bail at the crime stage. After completing investigation, final reports were filed before the court having jurisdiction. The petitioner failed to appear before court. Warrant was issued for the arrest of the petitioner on several occasions. Steps were taken under Sections 82 and 83 of the Code of Criminal Procedure against the petitioner. C.P.No.24 of 2009 was removed to the long pending register. For more than five years, the petitioner was absconding. Warrants were repeatedly issued by the learned Magistrate for the arrest of the petitioner. The police used to file reports stating that the petitioner was not found and therefore, he could not be arrested. On B.A. Nos. 1720, 1915 and 1916 of 2010 4 30.9.2009, the learned Magistrate passed an order in C.C.No.2169 of 2004, which reads thus: “I take notice that in the Malayala Manorama daily dated today, there is an article which shows that the 2nd accused in this case, Thirumalai Kumar, is now residing in a village at Tamil Nadu, which is known by the name 'Thiruttu Gramam'. The photo of that accused is also printed in the newspaper. It is also reported that he is the village head of that village. Hence issue nbw against A2 through the City Police Commissioner, Ernakulam. The City Police Commissioner is directed to arrest the 2nd accused and produce him before the Court before 30.10.09. If necessary, he shall seek assistance of the Tamil Nadu police for execution of the warrant. Adjourned to 30.10.09.” More or less similar orders were passed in the other two cases as well. 5. The petitioner was arrested and he was produced before the learned Magistrate. He moved for bail. The learned Magistrate dismissed the Bail Applications by the orders dated 18.11.2009 and 21.11.2009. The petitioner moved the Sessions Court for bail in B.A. Nos. 1720, 1915 and 1916 of 2010 5 all the three cases. The learned Sessions Judge dismissed the applications by the order dated 17.12.2009. The learned Magistrate as well as the learned Sessions Judge held that if the petitioner is released on bail, there is every likelihood of his absconding. The learned Sessions Judge, however, directed the learned Magistrate to ensure speedy trial of the case within six months and to complete the committal proceedings in C.P.No.24 of 2009 at the earliest. 6. However, the learned Sessions Judge criticized the learned Magistrate (Sri.Ijas.A., Judicial Magistrate of the First Class, Ernakulam) for issuing direction to the police on the basis of the press reports. The learned Sessions Judge held thus: “There is no dispute that the petitioner, who is hailing from Tamilnadu, is an absconding accused for the past more than five years in all these grave crimes. Of course, as pointed out by the learned counsel for the petitioner, the conduct on the part of the learned Magistrate in issuing directions to the Police on the basis of press reports cannot be encouraged or appreciated. It cannot also be said that the B.A. Nos. 1720, 1915 and 1916 of 2010 6 learned Magistrate was justified in collecting or being persuaded by such extra judicial information, for the short reason that the Court cannot assume the role of the prosecuting agency.” 7. The petitioner is involved in grave crimes. After he was released on bail, he made himself scarce. For more than five years, his presence could not be secured before Court in spite of issuance of non- bailable warrants. Proceedings under Sections 82 and 83 of the Code of Criminal Procedure were taken. The Police used to file reports stating that the accused could not be arrested in spite of the best efforts. Only when the learned Magistrate passed the order in which reference was made of the newspaper report that the petitioner was available in a particular village in Tamil Nadu, the police could secure the arrest of the petitioner. If the petitioner is released on bail, certainly there is every possibility of his absconding and making himself scarce. The trial of the cases would not be over, if bail is granted to the petitioner. Therefore, I am not inclined to grant bail to the petitioner till the trial and disposal of the cases.” B.A. Nos. 1720, 1915 and 1916 of 2010 7 4. Sri. K.V. Sohan, the learned counsel for the petitioner submitted that the petitioner was available in his village all throughout and he was not absconding. Annexures 1 to 6 in Bail Application No. 1720/2010 are relied on by him to support the contention. It is stated that mother of the petitioner had taken an Electoral Identity Card, Annexure-1, and the address therein shows that she was residing in Choornikkara in Ernakulam District. Annexure 1 does not show anything about the presence or absence of the petitioner at a particular place. Annexure 2 is relied on to show that Suguna Poultry Farm Limited, which has the head office at Coimbatore, has a branch at Sankaran Kovil in the name of one Kumar. Annexure 2 also is not helpful to the petitioner as it does not show that the petitioner was available at that place during the relevant time. Annexure 3 is a driving licence issued in 2007 to one V. Kumar. Annexure 4 is an Identity Card issued by the Election Commission of India to Kumar. Annexure 5 is a PAN card issued by the Income Tax Department to V. Kumar. Annexure 6 is the Family Card of V. Kumar and family. These documents may be relevant for proving certain B.A. Nos. 1720, 1915 and 1916 of 2010 8 facts. The question is whether the petitioner was available when the police officers tried to arrest him. The learned Magistrate as well as the learned Sessions Judge, in the orders passed by them, stated that the petitioner was absconding and that he could not be arrested as he was not available in the village. Even when a person runs a business in a particular place, he can manage to abscond in a criminal case. Therefore, running of a business or getting an Identity Card are not relevant factors to arrive at the conclusion on the question whether a person was absconding or not. On the materials available before the learned Magistrate, he came to the conclusion that the petitioner had absconded and non bailable warrant was issued for his arrest. For about 5 years, the petitioner could not be arrested, in spite of the fact that non bailable warrants were repeatedly issued. 5. The learned Sessions Judge has issued direction for the early disposal of the cases. The direction is that all the cases should be disposed of within six months. In the facts and circumstances, I do not think that the petitioner can be released on bail at this stage. The trial of the cases would be over within a few months. I am of the view that the petitioner is not entitled B.A. Nos. 1720, 1915 and 1916 of 2010 9 to get bail. If he is released on bail, it would not be possible to secure his presence before the Court at the time of trial. For the aforesaid reasons, the Bail Applications are dismissed. K.T. SANKARAN, JUDGE ln