IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 1ST FEBRUARY 2010 / 12TH MAGHA 1931 Bail Appl..No. 53 of 2010 CRIME NO.835 OF 2009 OF CHENGANNUR POLICE STATION, ALAPPUZHA APPLICANT/1ST ACCUSED: ------------------------------------------ SHERIN KARNAVAR, W/O.BINU KARNAVAR, KARNAVAR'S VILLA, THURUTHIMEL MURI, CHERIYANADU VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.VIPIN NARAYAN RESPONDENT: COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECTOR, HIGH COURT OF KERALA ERNAKULAM, REPRESENTING THE S.I.OF POLICE, CHENGANNUR POLICE STATION. DIRECTOR GENERAL OF PROSECUTION SRI.V.G.GOVINDAN NAIR PUBLIC PROSECUTOR SRI.C.K.SURESH THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28/01/2010, THE COURT ON 01/02/2010, PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NO. 53 OF 2010 ------------------------------------------------------ Dated this the 1st day of February, 2010 O R D E R The first accused in Crime No.835 of 2009 of Chengannur Police Station, namely, Sherin, seeks bail under Section 439 of the Code of Criminal Procedure. She had filed B.A. Nos.7021 of 2009 and 7495 of 2009 for bail. Those Bail Applications were dismissed as per the orders dated 4th December 2009 and 23rd December 2009 respectively. 2. The offences alleged against the accused persons are under Sections 114, 120-B, 394, 449 and 302 read with Section 34 of the Indian Penal Code. 3. Bhaskara Karnavar, Karnavar’s Villa, Cheriyanad village was found dead in his bed room in the morning on 8-11-2009. Nephew of Bhaskara Karnavar reported the matter to the police. Crime was originally registered under Section 174 of the Code of Criminal Procedure. Investigation revealed that Bhaskara Karnavar was murdered. B.A. NO. 53 OF 2010 :: 2 :: 4. The gist of the prosecution case is the following. Sherin, the first accused, who is the daughter in law of Bhaskara Karanvar, was not having a good relationship with him, since he had cancelled the will executed in favour of his son, Sherin and their child. She decided to do away with Bhasakara Karanvar. She sought the help of the 2nd accused Basith Ali for that purpose. Basith Ali had business dealings with Sherin. The other accused persons, namely, Nithin alias Unni and Shanu Rasheed were the friends of Basith Ali. The accused persons conspired together to murder Bhaskara Karnavar. During the late night of 7-11-2009, accused Nos. 2 to 4 came to house of Bhaskara Karnavar. Accused No.1 had made all arrangements for their entry into the house. The accused persons committed the murder of Bhaskara Karnavar, while he was sleeping. The valuable articles of Bhaskara Karnavar were also taken away by accused Nos. 2 to 4. 5. On the date of occurrence, Sherin, her husband and the maid servant were in the house. The husband of Sherin is a mentally challenged person. The driver employed by Bhaskara Karnavar was in the outhouse. The investigating officer found that chilly powder B.A. NO. 53 OF 2010 :: 3 :: was sprinkled in the bed room, body of Bhaskara Karnavar and several other places in the house, in order to destroy evidence. 6. Accused No.1, Sherin, was arrested on 12-11-2009. Accused Nos. 2 to 4 were arrested on 11-12-2009. They are in judicial custody. 7. The learned counsel for the petitioner submitted that the petitioner, being a woman, is entitled to the protection under the proviso to Sub Section (1) of Section 437 of the Code of Criminal Procedure and that she is entitled to be released on bail. The petitioner is prepared to comply with any condition that may be imposed by the Court. It is also submitted that the investigation is practically over. 8. The learned Director General of Prosecution opposed the Bail Application. He contended that if the petitioner is released on bail at this stage, there is every possibility that she would intimidate or influence the witnesses. The learned Director General of Prosecution also submitted that there are enough materials to come to the conclusion that the petitioner was the master mind of the B.A. NO. 53 OF 2010 :: 4 :: murder. There were two dogs in the house of Bhaskara Karnavar. The petitioner procured sleeping pills with the assistance of the driver. The bill for the same was got in the name of Bhaskara Karnavar. Sleeping pills were somehow administered to the dogs and they were thus silenced in order to facilitate easy entry of the other accused persons to the house. The mobile phone calls between the petitioner and Basith Ali on the date on which the offence was committed is quite relevant. On 7th and 8th November 2009, Sherin contacted Basith Ali on 57 occasions. Basith Ali contacted her over mobile phone on five occasions. The other accused were also contacted over mobile phone by Sherin. Sherin had sexual contacts with Basith Ali. She had also such connections with a person in the neighbourhood, who was a frequent visitor in Karnavar’s Villa. It was also submitted that the petitioner deserves no sympathy and the proviso to Section 437 (1) is not liable to be applied in the facts and circumstances of the case. It was also pointed out that the element of mens rea is very important in the present case. The evidence of the driver and the maid servant are very material. If the petitioner wins over these witnesses, it would seriously affect the trial of the case. People of the locality reacted sharply against the petitioner. If she is released on bail, tension may B.A. NO. 53 OF 2010 :: 5 :: occur in the locality. The polygraph test conducted on Sherin reveals that she was hiding very many relevant facts. 9. The learned counsel for the petitioner replied and controverted the contentions put forward by the learned Director General of Prosecution. I do not propose to deal with the contentions, since it is not proper to arrive at any conclusion or finding or to make any observation touching upon the merits of the case, while dealing with an application for bail. The facts of the case are being referred to only for the limited purpose of considering the question whether bail should be granted to the petitioner. 10. I have carefully perused the Case Diary also. 11. The investigation is at the final stage. The learned Director General of Prosecutions submitted that charge sheet would be filed within 90 days of the date of arrest of the petitioner. 12. Taking into account the facts and circumstances of the case, I am of the view that it is not proper to release the petitioner on bail at this stage, when the charge sheet is about to be filed within a B.A. NO. 53 OF 2010 :: 6 :: few days, as submitted by the learned Director General of Prosecution. If the investigating officer does not file the charge sheet within 90 days of the date of arrest of the petitioner, she could claim to be released on default bail under the proviso to Section 167 (2) of the Code of Criminal Procedure. I also make it clear that if the charge sheet is so filed within the time prescribed, the petitioner would be free to approach this Court again for bail, in which event the question of releasing her on bail, on such conditions as may be found fit, would be considered. For the aforesaid reasons, the Bail Application is dismissed. (K.T.SANKARAN) Judge ahz/