IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 9TH NOVEMBER 2010 / 18TH KARTHIKA 1932 Bail Appl..No. 6631 of 2010() ------------------------- R.C. NO. 34 OF 2010 (S) 0010 - CBI/TVPM CRMP.5191/2010 of CHIEF JUDL.MAGISTRATE, ERNAKULAM .................... PETITIONER/7TH ACCUSED --------------------- ABDULLA KUNHI @ NADUMBAIL ABDULLA, S/O.KUNJALI BEARY, NADUMBAIL, PERLA, KASARAGOD. BY ADV. SRI.ALAN PAPALI SRI.GILBERT GEORGE CORREYA SRI.M.K.DAMODARAN, SENIOR ADVOCATE RESPONDENT(S): COMPLAINANT -------------------------- 1. C.B.I., [R.C.NO.34 OF 2010(S)0010- CBI/TVPM], REPRESENTED BY THE STANDING COUNSEL FOR C.B.I., HIGH COURT OF KERALA, ERNAKULAM. 2. ACHU, S/O. ANDUNHI, KASEKKAR HOUSE, PERALA P.O. KASARAGOD DISTRICT (Impleaded as Addl.R2 as per order in Crl.M.A. No. 6899/2010 dated 2-11-2010) ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. SRI.S.SREEKUMAR FOR ADDL.R2 THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09/11/2010,ALONG WITH BA NO. 6834 OF 2010 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CR V. RAMKUMAR, J. ....................................... Bail Application Nos. 6631 & 6834 of 2010 ........................................ Dated: 9th November, 2010. COMMON ORDER These are applications for regular bail filed by two of the accused persons in Crime No. 213/2009 of Badiadka Police Station in Kasaragod District registered for offences punishable under Section 143, 147, 148, 341 and 302 read with Sec. 149 I.P.C. The case pertains to the gruesome murder of one Jabbar @ Basheer aged 26 years, a Youth Congress worker allegedly by certain Marxist Communist activists by engaging hired assassins. The said occurrence took place after 10.30 p.m. on 3-11-2009. 2. The petitioner (Abdulla Kunhi @ Nadubail Abdulla) in B.A. No. 6631 was originally arrayed as A7 in the case and is presently A6. The petitioner (S. Sudhakara @ Sudhakara Master) in B.A. 6834 of 2010 was originally Bail Application Nos. 6631 & 6834 of 2010 -:2:- A5 in the case and he is presently A4. Both the petitioners were arrested on 6-09-2010. 3. On the allegation that since the main conspirators were local Marxist Party activists and, therefore, there was political interference by the ruling party in the smooth investigation of the case by the local police, Assainar alias Achu, the father of deceased Jabbar filed a Writ Petition before this Court as W.P. (C) 2797 of 2010 seeking a direction to hand over the investigation of the above Crime to the Central Bureau of Investigation ("the CBI" for short. As per judgment dated 9-6-2010 this Court allowed the said Writ Petition and entrusted the investigation with the CBI. The C.B.I. took over the investigation and the same is almost over . The CBI has proposed to charge sheet 14 persons for the aforementioned offences besides an offence punishable under Sec. 212 I.P.C. One K. Bappunji who was originally arrayed as A4 by the local police was deleted from the Bail Application Nos. 6631 & 6834 of 2010 -:3:- array of accused by the CBI and that explains the change in the original rank of the petitioners. 4. The case of the prosecution is as follows:- In pursuance of the criminal conspiracy hatched by the accused persons due to the political animosity which the local Marxist party activists had towards Abdul Basheer @ Jabbar, aged 26 years who was an active worker of the Congress - I Party and the Secretary of the Youth Congress at Perla in Kasaragod District, sometime after 10.30 p.m. on 3-11-2009 when Jabbar along with his friend Subair Ahammed was proceeding from Kasaragod area to his house at Perla in a TATA Indica Car, five persons under the leadership of Moideen Kunhi @ Moinhee (A1) hailing from Karnataka State and armed with deadly weapons like swords, knives, steel rods, axe, chopper etc. came in a Santro Car with a false registration number and brutally attacked Jabbar at a place called Ukkinadka. After executing their mission, the assailants escaped from the Bail Application Nos. 6631 & 6834 of 2010 -:4:- scene in the Santro Car. Since the target of attack was Jabbar, his companion Subair Ahammed somehow escaped unhurt. Jabbar who was conscious and found lying in a pool of blood with 25 bleeding injuries was initially rushed to Sastri Hospital and then to E.K. Nayanar Hospital and finally to Care Well Hospital at Kasaragod. At about 12 midnight on 3-11-2009 the doctor at Care Well Hospital examined Jabbar and pronounced him dead. The first information statement was lodged by one Abdul Harif of Ukkinadukka before the Badiadukka Police Station on 4- 11-2009 at 2.30 a.m. 5. I heard Advocate Sr. Advocate Sri.M.K. Damodaran, the learned counsel appearing for A6, Advocate Sri.T.G. Rajendran, the learned counsel appearing for A4, Adv. Sri. S. Sreekumar, the learned counsel appearing for the de facto complainant who is the father of deceased Jabbar and Adv. Sri.M.V.S. Namboothiri, the learned Standing Counsel for the C.B.I. I also perused the Bail Application Nos. 6631 & 6834 of 2010 -:5:- case diary files pertaining to the matter. 6. The learned counsel appearing for the petitioners made the following submissions before me in support of their fervent plea for bail:- A6 who was employed abroad is only a branch party member of the Marxist Party and the remand reports filed in the case do not establish that he had any role in the criminal conspiracy alleged. The call details of the mobile phones also will not establish the criminal conspiracy alleged. The State police had implicated only 5 persons as A1 to A5 and A1 to A4 were granted bail by this Court. Investigation of the case is practically over and no useful purpose will be served by continuing the detention of the petitioners. A4 is a teacher by profession. He is the local Secretary of the Marxist Party. There is no material to prove the alleged conspiracy against A4 as well. The 161 statement of Radhakrishna Master to whom the deceased had spoken before breathing his last also does not implicate A4. The exact political enmity is not discernible from the records. 7. Both Sri. M.V.S. Namboothiri as well as Sri.S. Sreekumar made the following submissions before me:- Bail Application Nos. 6631 & 6834 of 2010 -:6:- This is a case of gruesome murder of a political rival by engaging hired assassins from Karnataka. There has been political interference in the investigation by the State Police even at the threshold. The State Government had vehemently opposed the prayer of the de facto complainant to hand over the investigation of the case to the CBI. Even after the investigation of the case was entrusted to the CBI the State Government had withdrawn the facilities extended to the CBI in flagrant violation of the directions of this Court in the Writ Petition. 8. After hearing both sides and after perusing the records, I am not satisfied that the petitioners have made out any good ground for their enlargement on bail. There is prima facie material to indicate that both A4 and A6 (the petitioners herein) had vital role in the "operation assassination" of the 26 year old Jabbar who was an upcoming political rival of the local Marxist Party actvists. Even at the stage of recording the first Bail Application Nos. 6631 & 6834 of 2010 -:7:- information statement and registering the F.I.R. there had been interference by the Executive Government which is led by the Marxist Party to which the petitioner owe their allegiance. While divesting the State Police of its power of investigation and entrusting the investigation with the C.B.I., this Court, in the course of its judgment had observed as follows:- "Having regard to the facts and circumstances of the case, I do not consider it expedient to allow the State Police to continue the investigation of this case. The political set up here is such that howsoever efficient the investigator may be, if those who masterminded the assassination of Jabbar have roots in the party in power, the real culprits are not going to be arrayed as the accused in the case. It is not because there is dearth of good officers in the State Police but because they may be helpless in conducting a proper, impartial, bold and foolproof investigation so as to bring the real assailants to justice. In order to instill confidence in the public as also the near relatives of the deceased, I am of the view that the investigation of this case ought to be entrusted with a Central Agency which is a premier Investigation Agency which may not have any vested interest in the matter and may not be amenable to the local pressures. Accordingly, the investigation of Crime No. 213/2009 of Badiadka Police Station is entrusted with the CBI for an impartial, faultless and expeditious investigation". 9. The conscious attempt to thwart the course of Bail Application Nos. 6631 & 6834 of 2010 -:8:- justice was made by the State Police by recording under Sec. 161 Cr.P.C. a version different from the actual statement made by the witness by name Radhakrishna Master to whom deceased Jabbar had made a dying declaration before he breathed his last. A4 (Sudhakara Master - petitioner in B.A. No. 6834/10) who had a vital role in the "operation assassination" of Jabbar and who is a local Marxist Party leader was arrayed as an accused in the case only on 19-4-2010 and, that too, after persistent agitation by the public. The fact that one K. Bappunji who had nothing to do with the gruesome manslaughter of Jabbar was dishonestly arrayed as A4 by the local police (and subsequently deleted by the CBI) shows the partisan and unfair investigation conducted by the local police evidently at the influence of the ruling party. The petitioners herein are stated to be the persons who masterminded the entire operation and having tremendous political clout. If they are relased on bail, then none of the Bail Application Nos. 6631 & 6834 of 2010 -:9:- prosecution witnesses will be bold enough to speak the truth before Court and justice will be the first causality in such an event. 10. Way back in the year 1987, the Apex Court in Shahzad Hasan Khan v. Ishtiaqu Hasan Khan and Another - 1987 SCC (Crl.) 415 observed as follows:- "On June 7, 1986 complainant's counsel had filed a written application seeking three days time to file counter- affidavit giving the details of the proceedings pending before the trial court. We are constrained to observe that Justice D.S. Bajpai refused to grant the prayer and proceeded to grant bail simply on the ground that the liberty of a citizen was involved which is the case in every criminal case more particularly in a murder case where a citizen who let alone losing liberty has lost his very life. Another ground for granting bail was that trial was delayed, therefore the accused was entitled to bail. This also cannot be helped if a litigant is encouraged to make half a dozen applications on the same point without any new factor having arisen after the first was rejected. Had the learned Judge granted time to the complainant for filing counter-affidavit, correct facts would have been placed before the court and it could have been pointed out that apart from the inherent danger of tampering with or intimidating witnesses and aborting the case, there was also the danger to the life of the main witnesses or to the life of the accused being endangered as experience of life has shown to the members of the profession and the judiciary, and in that event, the learned Judge would have been in a better position to ascertain facts to act judiciously. No doubt liberty of a citizen must be zealously safeguarded by court, nonetheless when a person is accused of Bail Application Nos. 6631 & 6834 of 2010 -:10:- a serious offence like murder and his successive bail applications are rejected on merit there being prima facie material, the prosecution is entitled to place correct facts before the Court. Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution". In Kalyan Chandra Sarkar v. Rajesh Ranjan - (2004) 7 SCC 528 the Supreme Court against articulated as follows:- " We have already noticed from the arguments of learned counsel for the appellant that the present accused had earlier made seven applications for grant of bail which were rejected by the High Court and some such rejections have been affirmed by this Court also. It is seen from the records that when the fifth application for grant of bail was allowed by the High Court, the same was challenged before this Court and this Court accepted the said challenge by allowing the appeal filed by the Union of India and another and cancelled the bail granted by the High Court as per the order of this Court made in Criminal Appeal No. 745 of 2001 dated 25-7-2001. While cancelling the said bail this Court specifically held that the fact that the present accused was in custody for more than one year (at that time) and the further fact that while rejecting an earlier application, the High Court had given liberty to renew the bail application in future, were not grounds envisaged under Section 437 (1) (i) of the code. This court also in specific terms held that the condition laid down under Section 437 (1) (i) is sine qua non for granting bail even under Section Bail Application Nos. 6631 & 6834 of 2010 -:11:- 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail". Again in Masroor v. State of U.P. - (2009) 14 SCC 286 the Apex Court cautioned as follows:- "There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned". The observations in Shahzad Hasan Khan's Case (supra) was noted with approval in this case. 11. Out-witting a political rival should be through Bail Application Nos. 6631 & 6834 of 2010 -:12:- democratic and lawful means and not by resort to the cult of violence. The petitioners who yearn for their liberty never ceded the same to their political opponent Jabbar whose terrestrial lease of life was allegedly determined by the petitioners by plotting to murder him in the most revolting manner. It is unfortunate that the Executive Government also took a partisan attitude by withdrawing the facilities extended to the C.B.I. contrary to the directions of this Court in the Writ Petition filed by the de facto complainant. The case diary files also reflect the above hostile attitude shown to the CBI Investigating team. If the vehicle made available to the investigator was recalled for the purpose of deployment in connection with the election held for the local self-Government bodies, the functionaries responsible for the same owe an explanation to this Court and to the people of this State as to how many jeeps and other vehicles used by Investigating Officers including those of the CBI were re- Bail Application Nos. 6631 & 6834 of 2010 -:13:- deployed or diverted for election duty and in which all cases. The grievance voiced in this connection by the CBI will have to be probed in detail if a motion in that behalf is made by the CBI in W.P. (C) 2797 of 2010 . The result of the foregoing discussion is that the petitioners who had played pivotal role in the brutal murder of Jabbar do not deserve bail. These applications are, accordingly, dismissed. Dated this the 9th day of November, 2010. V. RAMKUMAR, JUDGE. ani/