IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 Bail Appl..No. 8334 of 2011 CRIME NO.702 OF 2011 OF VARKALA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. PETITIONER : ACCUSED NO.2: ------------------------------ SANOBAR, AGED 41, S/O.ABDUL HAMEED, CHARUVILA HOUSE, THENNOORKONAM, PREM NAZEER NAGAR, KIIZHIVILLAM VILLAGE, CHIRYANKEEZHU. BY ADV. SRI.B.RAMAN PILLAI SRI.SUJESH MENON V.B. SRI.SHYAM ARAVIND SRI.T.ANIL KUMAR SRI.MANU TOM SRI.R.ANIL RESPONDENT: COMPLAINANT : --------------- STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA STATE PROSECUTOR SRI.T.ASAF ALI THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 30/11/2011,THE COURT ON 15/12/2011 PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ Bail Appl. NO. 8334 OF 2011 ------------------------------------------------------ Dated this the 15th day of December, 2011 O R D E R B.A.No.7068 of 2011 was filed by the petitioner under Section 439 of the Code of Criminal Procedure. That Bail Application was dismissed by a detailed order dated 7th September, 2011. For the sake of convenience, the order dated 7th September, 2011 is extracted below: “This is an application for bail under Section 439 of the Code of Criminal Procedure. The petitioner is accused No.2 in Crime No.702 of 2011 of Varkala Police Station, Thiruvananthapuram District. 2. The offences alleged against the petitioner are under Sections 120B, 364, 302, 201 and 109 read with 34 of the Indian Penal Code. 3.The prosecution case is the following: On 9.7.2011, Salim, the deceased was found missing. The matter was reported to the police on 10.7.2011, and the Crime was registered for man missing. On 10.7.2011, Kallambalam Police seized a BAIL APPL. NO.8334 OF 2011 :: 2 :: blue WagonR car in an abandoned state near the KTCT Hospital, Chathanpara. Crime No.701/2011 under Section 102 of the Code of Criminal Procedure was registered at Kallambalam Police Station. That case was transferred to Varkala Police Station, on finding that the car belonged to Salim, the deceased, who was residing within the limits of Varkala Police Station. The wife of Salim filed WP(Habeas Corpus) No.340 of 2011 before the High Court for production of Salim before the Court. It was alleged in the Writ Petition that respondents 6 and 7 therein (Sherif and Shaheer), were keeping Salim in illegal custody. Shaheer is the brother of the petitioner herein. On investigation, it was found that Sherif was involved in the murder of Salim. He was arrested. Investigation also revealed that Sherif invited the deceased to his house, and murdered him. The body of the deceased was cut into several pieces and the same was disposed of in a waste dumping pit in plastic covers. Investigation also revealed that the petitioner, the second accused, instigated Sherif to murder Salim. The petitioner was working abroad. He came to India on 5.8.2011. The petitioner was arrested from Thiruvananthapuram Airport on 5.8.2011 and he was remanded to judicial custody. 4. The learned counsel appearing for the BAIL APPL. NO.8334 OF 2011 :: 3 :: petitioner submitted that there is no material to connect the petitioner with the Crime. The counsel submitted that except the confession statement of the first accused, there is nothing to indicate that the petitioner is involved in the offence. The counsel submitted that confession of a co-accused cannot be used against the petitioner to implicate him in the offence. 5. The State Prosecutor submitted that the submission made by the learned counsel for the petitioner is not correct and there are enough materials to connect the petitioner with the Crime. The State Prosecutor submitted the following facts with reference to the materials on record: 6. During investigation, it was revealed that deceased Salim was engaged in money lending at lower rates of interest. The deceased was working in Riyadh. The petitioner was also at Riyadh. The petitioner used to take huge amounts of money from the deceased on lower rates of interest. Thereafter, the petitioner used to lend that money to others at higher rates of interest. In that process, the petitioner was making huge sums of money. The petitioner decided to collect as much money as possible from the deceased and thereafter to murder him. The petitioner sought the assistance of Sherif for BAIL APPL. NO.8334 OF 2011 :: 4 :: executing the murder of Salim. Deceased Salim was a womaniser. Knowing the weakness of Salim, the petitioner and Sherif hatched a conspiracy to attract Salim to the house of Sherif and to do away with him. As a consequence of the conspiracy, on the fateful day, Sherif invited the deceased to the house of the former, on the assurance that he had arranged a beautiful woman. The deceased was taken to the house of Sherif in an Ambassador Car. Sedative substances were administered to the deceased, by mixing the sedative with beer. After the deceased became unconscious, he was cut into pieces with a specially made weapon for that purpose with the assistance of one Mohanan. The pieces of the body were put in plastic bags and they were disposed of in the manner mentioned above. 7. The State Prosecutor also submitted that the petitioner was in constant touch with Sherif as well as the deceased on the date of the incident. It is also alleged that a Sim card was taken using the passport copy of one Hameed, who had taken loan from the petitioner. It is alleged that Hameed had given the copy of the passport to the petitioner, while taking the loan. Using that copy of the passport and fixing the photograph of a Bangladeshi national, a passport was forged in the name of one Rajiv. Using that passport, a BAIL APPL. NO.8334 OF 2011 :: 5 :: Sim card was obtained in the name of Rajiv and it was being used by Sherif for contacting the deceased. It is alleged that getting such a mobile Sim card was also as a result of the conspiracy hatched between the petitioner and the first accused Sherif. The allegation is that the petitioner offered a very huge amount of `50 lakhs to Sherif for implementing the ideas of the petitioner to murder Salim. 8. The prosecution also alleges that the petitioner came to India using a fake passport. Another Crime was registered against the petitioner in respect of that offence. It is alleged that the petitioner had entrusted his business in Riyadh to his brother and the petitioner has got his visa cancelled. 9. The prosecution also alleges that the petitioner had purchased large extents of property in various places in various Districts using the money which he gained by deceiving Salim and also out of the profit which he derived using the money of Salim. On verification of the Bank Accounts of the petitioner, it was found that he was not having that much money in the accounts, which was required for purchasing large extents of property in his name. BAIL APPL. NO.8334 OF 2011 :: 6 :: 10. The prosecution case is that the petitioner had collected more than `1 Crore from the deceased on various occasions. The State Prosecutor also submitted that when the relatives of Salim contacted the petitioner after the death of Salim, the petitioner did not reveal the telephonic conversation which he had with Salim on the previous days of his death. The petitioner also did not disclose to them that he had borrowed amounts from Salim. The petitioner stated to them that he did not owe any amount to deceased Salim. The State Prosecutor submitted that the petitioner is an intelligent criminal, who succeeded in eliminating Salim after receiving huge amounts from him. The Crime was committed only for the purpose of amassing wealth. It is stated that the petitioner committed the Crime in a very sophisticated manner leaving no trails, according to him. The State Prosecutor submitted that the manipulations done with the aid of technological developments, which were used for the commission of the Crime, became valuable links to trace the offence committed by the petitioner, and to enable the prosecution to implicate him as an accused. It is submitted that the various details collected during investigation would clearly disclose the complicity of the petitioner in the offence. It is submitted that if bail is granted to the petitioner, he would make himself scarce BAIL APPL. NO.8334 OF 2011 :: 7 :: and flee from justice. The conduct of the petitioner in going outside India, using fake passport is tell-tale of the capability of the petitioner to make himself scarce. 11. Taking into account the facts and circumstances of the case, the complex nature of the offence and also the various technics allegedly employed by the petitioner in the commission of the grave offence, I am not inclined to grant bail to the petitioner. If bail is granted to the petitioner, it is almost certain that he would flee from justice and make himself scarce. It is also most likely that he would indulge in terrorizing, intimidating or influencing the witnesses and tampering with the evidence. The investigation is at the initial state and if the petitioner is released on bail, he would cause great damage to the proper and smooth investigation of the case. For the aforesaid reasons, the Bail Application is dismissed.” 2. The learned counsel for the petitioner submitted that after the dismissal of B.A.No.7068 of 2011, charge sheet was filed and the case was committed to the Sessions Court as per the BAIL APPL. NO.8334 OF 2011 :: 8 :: proceedings in C.P.No.78 of 2011. The learned counsel submitted that the charge sheet having been filed, there is no reason why the petitioner should be detained further. 3. A memo dated 22.11.2011 and another memo dated 29.11.2011 were filed by the State Prosecutor. Several documents were also produced along with the memos. The State Prosecutor submitted that a Letter of Rogatory was issued to get the statements of three persons at Riyadh. It is stated that some of the witnesses are staying in Riyadh and it is necessary to get the statements from them. The State Prosecutor also submitted that the Enforcement Directorate has registered a case against the petitioner under the Foreign Exchange Management Act. The State Prosecutor submitted that in the peculiar facts and circumstances of the case, if the petitioner is released on bail, he would flee from justice and it would not be possible to complete the trial of the case. 4. Sri.B.Raman Pillai, the learned counsel appearing for the petitioner, submitted that the charge laid in the case is not complete BAIL APPL. NO.8334 OF 2011 :: 9 :: and therefore, committal of the case to the Sessions Court was illegal. 5. Both sides pointed out several aspects touching upon the merits of the case. Sri.B.Raman Pillai, the learned counsel for the petitioner, submitted that even after filing the final report, no materials have been brought out to prima facie show the complicity of the petitioner in the offence. The State Prosecutor, on the other hand, relied on the call details in respect of several mobile phones and submitted that a conspiracy was hatched by the accused to murder Salim and that the second accused operated the entire episode while staying at Riyadh. 6. It is not necessary to consider the contentions put forward by both sides in respect of the merits of the case. It would be inappropriate to deal with those contentions while dealing with a Bail Application. The only question to be considered is whether in spite of the charge having been laid, it is necessary to detain the petitioner further. BAIL APPL. NO.8334 OF 2011 :: 10 :: 7. Taking into account the facts and circumstances of the case, I am of the view that it is not safe to release the petitioner on bail, in view of the following facts and circumstances: a) The nature and gravity of the offence. b) The allegation that the petitioner was successful in eliminating Salim even without being present in India. c) The nature of the offence and the manner in which Salim was murdered and his dead body was disposed of. d) The allegation that the petitioner was contacting the first accused over mobile phone using the Sim card of another person. e) The allegation that the Sim card was obtained by the petitioner by forging documents and using the photograph of a Bangladeshi national. f) It is alleged that the petitioner came to India by using a fake passport. A crime was registered against the petitioner in respect of the same. The chance of the petitioner to leave India by any means and by using fake passport, cannot be ruled out. BAIL APPL. NO.8334 OF 2011 :: 11 :: g) If the petitioner is granted bail, there is every likelihood of the witnesses being harassed, terrorized and intimidated. h) The allegation that the petitioner was having with him huge amounts belonging to the deceased. The chance of influencing the witnesses by offering huge amounts cannot be ruled out. i) If the petitioner is released on bail, it would be practically impossible to get a correct version of the events from the persons sought to be questioned at Riyadh. For the aforesaid reasons, the Bail Application is dismissed. (K.T.SANKARAN) Judge ahz/