IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 19TH FEBRUARY 2009 / 30TH MAGHA 1930 Bail Appl..No. 679 of 2009() ---------------------------------------- (CRIME NO.57 OF 2009 OF NORTH PARAVUR POLICE STATION) PETITIONER/ ACCUSED NO.6 -------------------------------------------- SMITH, AGED 28 YEARS,S/O.VELAYUDHAN, NEELAMBARI HOUSE, VIP COLONY, MANNAM KARA, PARAVUR VILLAGE. BY ADV. MR.S.RAJEEV RESPONDENT(S): STATE: ---------------------------------------- STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM(CRIME NO.57 OF 2009 OF NORTH PARAVUR POLICE STATION). BY PUBLIC PROSECUTOR MR. K.S.SIVAKUMAR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19/02/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss K. HEMA, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= B.A. No. 679 of 2009 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 19th day of February, 2009 O R D E R Petition for bail. 2. The alleged offences are under sections 143, 147, 148, 452, 323, 324, 326, 302 read with section 149 IPC. According to prosecution, on 10-1-2009 at about 10.30 p.m. accused nos.1 to 6 proceeded to the place of occurrence in a jeep driven by petitioner (A6) and accused nos. 1 to 5 committed house trespass into house of de facto complainant, took him out and assaulted him by using iron rod and caused grievous hurt and other injuries. On seeing this, deceased and two others came. They were also assaulted and deceased succumbed to the injuries. The offence was committed by accused nos.1 to 6, as members of the unlawful assembly, in prosecution of the common object to commit murder. 3. Learned counsel for petitioner submitted that petitioner is absolutely innocent of the allegations made. He was implicated under unfortunate circumstances. Petitioner used to drive the jeep, which was involved in this case and he was taken into custody by the police on 10-1-2009, and he was detained in the police custody for two days. Since he was not released in spite of two days of detention, his relatives sent BA 679/09 -2- telegrams to the D.G.P., I.G. and S.P. informing about his wrongful detention. Ultimately, a petition under section 97 Cr.P.C. was also moved before the Magistrate Court. In the meantime, DYFI people also made an agitation in the police station and hence, petitioner's arrest was recorded and he was produced before the court on 13-1-2009, alleging that he was arrested only on 12-1-2009 and that too, under other circumstances. 4. It is pointed out by learned counsel for petitioner that petitioner was arrested from the house on 10-1-2009 itself. Had he any role in the offence, it is unlikely that he would remain in the house. Petitioner was involved in another crime also and he had every access to legal consultation and it is highly improbable that he would be at his house on 10-1-2009 for enabling his arrest, it is submitted. The only person who can be arrested on the same day is petitioner and no other accused is so far arrested, it is submitted. 5. It is also pointed out that the remand report reveals that an attempt is made to create evidence against petitioner, in respect of an alleged recovery under section 27 of the Evidence Act. It is seen recorded in the remand report that petitioner BA 679/09 -3- made some disclosure statement and he took the police to some place where weapons were allegedly kept. Learned Counsel for the petitioner submitted that petitioner was working abroad and when he came to his house on leave, he had arranged a party on the previous day of the incident, in which some of the accused in this case had taken part. This was the only reason why petitioner was suspected in the crime. He is absolutely innocent of the allegations, it is submitted. 6. Learned Public Prosecutor submitted that petitioner is involved in another crime also and he was arrested only on 12-1- 2009 and it is not correct to say that he was taken into custody on 10-1-2009 itself. This fact was reported to the learned Magistrate and petition under section 97 Cr.P.C. was dismissed recording the same. Petitioner was arrested and produced within 24 hours. As per the materials in the case diary, he is involved in the crime and he was driving the vehicle and he took the other accused to the scene. 7. On hearing both sides and on perusal of the case diary, I find therein some materials which persuade me to grant bail to petitioner. Though petitioner's name was mentioned in the First Information Statement, he is not shown as an accused in the BA 679/09 -4- F.I.R. (According to learned counsel for petitioner, First Information Statement was subsequently created for implicating the petitioner also in the crime). It is also seen from the case records (vide page 52 – 65) that a recovery was effected from the jeep itself but this fact does not find a place in the remand report. It appears that the present case of the prosecution is that recovery of one of the alleged weapons is effected under section 27 of the Evidence Act through petitioner. But the recovery mahazar is not available in the case diary. For all these reasons, I find that petitioner has to be granted bail and hence, the following order is passed:- 8. Petitioner shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like amount to the satisfaction of the learned Magistrate, on the following conditions:- 1) Petitioner shall report before the Investigating Officer as and when directed and co-operate with the investigation. 2) Petitioner shall not intimidate or influence any witness or commit any offence while BA 679/09 -5- on bail and in case of breach of this condition, bail is liable to be cancelled. This petition is allowed. K.HEMA, JUDGE. mn.