IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 Bail Appl..No. 1616 of 2010 R.C.NO.2(S)/2010-CBA/TVPM CRIME NO.197 OF 2009 OF NEDUMUDY POLICE STATION, ALAPPUZHA PETITIONER/ACCUSED NO.8 ------------------------------------------- NIBIN THOMAS, S/O.K.T.THOMAS, KALAPPURACKAL VEEDU, WARD NO.7, KUNNANTHANAM VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT: COMPLAINANT -------------------------- CENTRAL BUREAU OF INVESTIGATIONS, REPRESENTED BY ITS SPECIAL PROSECUTOR. ADV. SRI.M.V.S.NAMBOOTHIRY,SC, C.B.I. THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09/04/2010, ALONGWITH B.A.NO.1792 OF 2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ B.A. NOS.1616, 1792, 1799, 1812 AND 1917 OF 2010 ------------------------------------------------------ Dated this the 9th day of April, 2010 O R D E R These Bail Applications are filed under Section 439 of the Code of Criminal Procedure for bail by some of the accused in R.C. No.2(S)/2010-CBI,TVPM (originally Crime No.197 of 2009 of Nedumudi Police Station). The details regarding Bail Application number, rank of the accused, name of the accused and date of arrest are shown below. Number of the Bail Application Rank of the accused Name of the accused Date of arrest 1616 of 2010 A8 Nibin Thomas 23-8-2009 1792 of 2010 A6 Thomas Kuriakose alias Binu 23-8-2009 B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 2 :: 1799 of 2010 A1, 3 and 5 Jayachandran alias Jayan, Sathar alias Anakkaran, Sujith 23-8-2009 1812 of 2010 A7, 9,10 and 11 Sunil alias Suni, Aneesh Kumar, Binoy Markose alias Binoy, Jain Jose alias Jain. 23-8-2009 1917 of 2010 A12, 14, and 17 Ramesh alias Sony, Akash Sasidharan alias Rajesh, Shino Paul. 12-1-2010 23-8-2009 2. The offences alleged against the accused persons are under Sections 143, 147, 148, 324, 302, 120-B, 201 and 212 of the Indian Penal Code and Section 5 of the Explosive Substances Act. 3. The prosecution case is that Paul M. George, who is also known as Paul Muthoot, a young businessman aged 32 years was brutally murdered at about 0.15 hours on 22-8-2009 at a place two B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 3 :: Kilometres east of Pallathuruthy bridge in Alapuzha – Changanassery road. Paul M. George was brought dead at about 00.50 hours on 22-8-2009 at the Medical College Hospital, Alappuzha by his driver Shibu Thomas. 4. Bail Application Nos.5832 and 6088 of 2009 filed before the High Court by some of the accused were dismissed as per the order dated 27th October 2009. 5. It is stated that after completing the investigation, final report was filed before the Court of the Judicial Magistrate of the First Class, Ramankari on 19-11-2009. The learned Magistrate passed a detailed order dated 8th December 2009 pointing out certain “irregularities” mentioned as items 1 to 15 in the order. The last two paragraphs of the said order read thus: “On independently applying my mind to the facts emerging from investigation I find that police has not done its duty of investigating the case satisfactorily. Investigation was not carried in respect of certain aspects. I find some very relevant materials, on which, investigators must pay their attention. There are B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 4 :: missing links and areas to be unearthed and investigated. Some facts which are relevant for arriving truth had not been gone into. Investigation on these areas are necessary for the free and fair trial and just disposal of the case. Hence it is my duty to indicate those materials to investigation team who shall make an in depth study of those materials before filing a final report. For the reasons stated above, the present report filed by the police cannot be said to be complete. The investigation is not satisfactory. Hence it is returned for conducting investigation on all aspects and to file a correct and complete report. Investigation officer is directed to retain an attested copy of the report in this court.” 6. Thereafter, Bail Applications were filed by some of the accused. Bail Application Nos.1816 of 2009 and 6890 of 2009 filed by Sunil alias Suni, Aneesh Kumar, Binoy Markose alias Binoy, Jain Jose alias Jain, Shino Paul and Akash Sasidharan alias Rajesh were dismissed by the order dated 11th January 2010. (Reported in 2010 (1) KLT 339). B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 5 :: 7. The State filed W.P.(C) No. 37407 of 2009 challenging the order dated 8-12-2009 passed by the learned Magistrate. A Division Bench of this Court passed an interim order of stay of the order passed by the learned Magistrate. After the order of stay was granted, the investigating officer re-submitted the charge sheet before the Magistrate’s Court. W.P.(C) No.31031 of 2009 was filed by the father of Paul Muthoot, praying for entrusting the investigation of the case to the Central Bureau of Investigation. Both these Writ Petitions were allowed by the Division Bench by the judgment dated 21-1-2010. (Reported in 2010 (1) KLT 399). The order dated 19.11.2009 passed by the learned Magistrate was quashed. It was held thus: “Writ Petition W.P.(C) No.31031 of 2009 is allowed. Even though final report is filed by local police, we direct them to hand over all the records to CBI authority, which shall make independent investigation and complete the same within six months from the date of taking over the investigation. The CBI shall investigate the case from all angles, take assistance of petitioner or his representative and submit final report to jurisdictional Court. “ 8. It is submitted by Sri.M.V.S. Namboodiri appearing for the B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 6 :: C.B.I and Advocates Sri. Madhavankutty, Sri. T.P. Pradeep and Sri. S.Sanal Kumar, appearing for the petitioners that the C.B.I took over investigation on 28-1-2010. C.B.I. applied before the Court of the Chief Judicial Magistrate, Ernakulam to get custody of Accused Nos. 1, 2, 3, 4, 5, 18, 24 and 25. The application was opposed by the accused. The Chief Judicial Magistrate rejected the application for custody of the accused. However, the C.B.I was permitted to interrogate the accused in jail premises for seven days from 15.2.2010. It is submitted that C.B.I. interrogated the accused persons as per the order passed by the Chief Judicial Magistrate. 9. The learned counsel for the petitioners submitted that since the charge sheet was returned by the learned Magistrate, it is to be taken that there is no charge sheet in the case and therefore the petitioners are entitled to ‘default bail’ under proviso (a) (i) to sub- section (2) of Section 167 Crl.P.C. Cognizance was not taken by the learned Magistrate. The Division Bench directed the C.B.I. to file the final report before the jurisdictional court. The counsel submitted that, therefore, it has to be taken that no final report is filed in the case. If so, the petitioners are entitled to default bail, according to the counsel. The counsel also submitted that the local police had B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 7 :: arrayed 25 persons as accused. C.B.I. has added more persons in the array of accused. Another weapon was recovered by the C.B.I. as the weapon of offence. The counsel submitted that one of the grounds to oppose a bail application could be that the investigating agency wishes to hold custodial interrogation. Now, the C.B.I. cannot have custody of the petitioners. Nothing new was brought out even after interrogation of the petitioners by the C.B.I. in jail. The counsel added that even according to the prosecution, only Kari Satheesan (Accused No.2) and Sathar (accused No.3) had weapons with them and the fatal injuries on Paul Muthoot were inflicted by Kari Satheesan. 10. Shibu Thomas, the driver of Paul Muthoot, laid the First Information Statement before the Sub Inspector of Police, Nedumudi Police Station at 03.00 hours on 22-8-2009. In the F.I.Statement, Shibu Thomas stated the following: He is working as driver at the Cardomom County Hotel, Thekkady, owned by Muthoot Group. At present, he is working as driver at the office of the Muthoot Group in Kochi. Paul M. George was the Executive Director of Muthoot Group. On 21-8-2009, three friends of Paul M.George came in a Ford Endeavour car bearing registration No. KL 01 AS- B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 8 :: 8407 to meet Paul. Paul M. George and his friends proceeded to the resort of Muthoot Group at Mararikkulam in the Ford Endeavour car referred to above and the Scorpio car belonging to Paul M. George. After taking food and drinks, they proceeded to Pampa Villa Resort of Muthoot Group at Chambakkulam, at about 22.30 hours on 21.8.2009. While proceeding from Mararikulam, Paul M. George drove the Ford Edeavour car and the driver Shibu Thomas drove the Scorpio car. Two of the friends of Paul M.George boarded the Ford Endeavour car while the other travelled in the Scorpio car. Paul directed Shibu Thomas to collect the keys of the rooms in Pampa Villa Resorts from the office of Muthoot Backwater Cruise at Pallathuruthy. As directed, Shibu Thomas went there to collect the keys. He was told that the keys were already taken to Pampa Villa Resort. While proceeding from Pallathuruthy to Chambakkulam, Shibu Thomas saw the Ford Endeavour car driven by Paul M. George, parked on the side of the road at Ponga Gurumandiram Junction, at a distance of about 2 KMs east of Pallathuruthy Bridge. He saw about 10 to 15 persons near the car. He also saw a Tempo Traveller at the place, parked facing Alapuzha side. On seeing the car driven by Shibu Thomas, those persons hurriedly got into the Tempo Traveller and drove to Alapuzha side. Shibu Thomas saw B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 9 :: Paul M. George lying there, drenched in blood. Paul M. George was taken in the Scorpio car to the Medical College Hospital, Alapuzha. One of the friends of Paul M. George, who was found seriously injured, was also taken in the Scorpio car. Two of the friends of Paul M. George came behind in the Ford Endeavour car. They overtook the Scorpio car. However, instead of going to Medical College Hospital, the two friends of Paul drove the Ford Endeavour car to Thiruvananthapuram side. Shibu Thomas brought Paul M. George and the other injured to the Medical College Hospital. It was declared that Paul M. George was dead. 11. The other injured person who was brought to the hospital by Shibu Thomas was Praveen alias Manu. According to the prosecution, investigation revealed that the three friends of Paul who came to see him were Om Praksh, Rajesh, and Praveen alias Manu. 12. The statement of Praveen alias Manu was recorded under Section 164 of the Code of Criminal Procedure, before the Judicial Magistrate of the First Class II, Alappuzha. B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 10 :: 13. The prosecution alleged (before the case was taken over by the C.B.I.) that while Paul was driving the Ford Endeavour car, it hit on a motor bike. Paul did not stop the car. A tempo traveller and other vehicles were parked on the side of the road at that place. After driving the car for about two kilometres, Paul stopped the car and inspected the car to find out the damage caused to the car as a result of the accident. At that time, several persons came there in a tempo traveller and questioned Paul as to why he did not stop the vehicle. They attacked Paul. Satheeshkumar alias Kari Sathessh stabbed Paul several times. Sathar inflicted a cut injury on Praveen alias Manu with a sword. Praveen alias Manu ran away and fell into the paddy field. Thereafter, Shibu Thomas came there in the Scorpio car and Paul and Praveen alias Manu were taken to the hospital. 14. Sri. M.V.S. Namboodiri, learned counsel appearing for the C.B.I. submitted that the C.B.I. is looking into the case in all angles. The first accused Jayachandran and accused No. 6 Thomas Kuriakose alias Binu are involved in many cases. The only person who saw the incident is Praveen alias Manu. His statement under Section 164 Cr.P.C. was recorded. He is also an injured person. He B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 11 :: is the most competent person to depose in court about the incident. The accused persons are hard core criminals. They are members of what is popularly called “quotation gang”. If the accused persons are released on bail, even the life of the only eye witness would be in danger. 15. A meticulous analysis of the facts of the case or the contentions of the parties is not required while considering the Bail Application filed by the accused persons. It is also not required or feasible to arrive at any conclusion on the merits of the case. Any finding made at this stage is likely to cause prejudice to either the prosecution or defence. Consideration and discussion of the facts are required only for the purpose of considering the question whether the accused persons should be granted bail. 16. The petitioners, except Ramesh alias Soni, are in judicial custody since 23-8-2009. Ramesh alias Soni was arrested on 12.1.2010. The C.B.I. took over investigation on 28-1-2010. Some of the accused persons were interrogated by the C.B.I. The prayer for custody of the accused was not granted by the Court. Therefore, continued detention of the petitioners is not required for the purpose B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 12 :: of interrogating them. The next question to be considered is whether the petitioners would tamper with the evidence or intimidate the witnesses. I think sufficient stringent conditions while granting bail could be imposed to avert such an eventuality. Keeping the petitioners in jail would not serve any purpose. Taking into account the facts and circumstances of the case, I am of the view that bail can be granted to the petitioners on stringent conditions. 17. The petitioners shall be released on bail on their executing bond for Rs.50,000/- each with two solvent sureties for the like amount to the satisfaction of the Court having jurisdiction, subject to the following conditions: a) The petitioners shall report before the investigating officer on every Monday and Thursday between 9 A.M. and 1 P.M., till the final report is filed or until further orders; b) The petitioners shall appear before the investigating officer for interrogation as and when required; c) The petitioners shall not enter into the limits of Alapuzha District until further orders; B.A. NOS.1616, 1792,1799,1812 & 1917 OF 2010 :: 13 :: d) The petitioners shall not leave the State of Kerala without prior permission from the Court having jurisdiction; e) The petitioners shall surrender their Passports before the Court having jurisdiction within one week; if any of the petitioners does not hold an Indian Passport, he shall file an affidavit to that effect before the learned Magistrate, within one week. f) The petitioners shall not try to contact the witnesses, directly or indirectly, or influence or intimidate them or tamper with the evidence; g) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail; h) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Applications are allowed as above. (K.T.SANKARAN) Judge ahz/