IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.Rev.Pet.No. 1224 of 2009() ------------------------------ CRRP.19/2009 of SESSIONS COURT, THRISSUR CMP.1452/2009 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR (CRIME NO.667/2008 OF KODUNGALLUR POLICESTATION) .................... REVN. PETITIONER(S): RESPONDENTS/PETITIONERS/A7 & A8 ---------------------------------------------------- 1. SREEKUMAR, AGED 36 YEARS, S/O.RAVEENDRAN, ALAYIL VEETTIL, ALAKALARIPARAMBU DESOM, SREENARAYANAPURAM VILLAGE, KODUNGALLUR TALUK. 2. UNNIKRISHNAN, 42 YEARS, S/O.PARVATHY, KAIPPOTH VEETIL, PADINJARE VEMBALLUR DESOM, SREENARAYANAPURAM VILLAGE. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT(S): PETITIONER/RESPONDENT/COMPLAINANT ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE DYSP. SPECIAL BRANCH, TRICHUR. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1224 of 2009 -------------------------------------- Dated this the 1st day of July, 2009. ORDER Question raised for a decision in this revision is, when could a magistrate release on bail a person accused of an offence punishable with death or imprisonment for life. 2. Petitioners are accused Nos.7 and 8 involved in Crime No.667 of 2008 of Kodungallur Police Station for offences punishable under Section 120B, 109, 341, 302 and 212 read with Section 34 of the Indian Penal Code (for short, “the IPC”). Case is that on 30.6.2008, other accused persons attacked one Biju with deadly weapons on account of political enmity and caused his death. Circle Inspector, Mala conducted the preliminary investigation. On 5.12.2008 he filed a report incorporating petitioners also as accused (accused Nos.7 and 8) alleging that they, along with other accused persons entered into a criminal conspiracy to commit the crime, abetted its commission and harboured some of the offenders. Learning that, petitioners moved an application for anticipatory bail in this Court. That application did not yield result. Thereafter petitioners surrendered before learned Judicial Magistrate of First Class, Kodungallur and moved a petition for bail. Learned magistrate dismissed that petition. In the meantime on the request of the investigating officer petitioners were given to the custody of that officer and after interrogation they were produced before learned Crl.R.P.No.1224/2009 2 magistrate on 25.2.2009 at 5 p.m. Petitioners moved another application for bail, obviously under Section 437 of the Code of Criminal Procedure (for short, “the Code”) before learned magistrate. That application was opposed by the Law Officer. Learned magistrate as per order dated 27.2.2009 granted bail to the petitioners observing that petitioners are arrayed as accused Nos.7 and 8 only as per report dated 5.12.2008, records reveal that alleged involvement of petitioners (in the incident) was known to the investigating officer even on the date of arrest of accused No.2, there is nothing on record to show any overt act allegedly committed by the petitioners, they have already been given to police custody and hence their continued detention will not serve any purpose. The investigating officer challenged that order before learned Sessions Judge, Thrissur in Crl.R.P.No.19 of 2009. Learned Sessions Judge after hearing both sides and perusing the records observed that the learned magistrate has not entered a finding as to the involvement of the petitioners in the case involving offence punishable with death or imprisonment for life and instead, on irrelevant considerations such as continued detention of the petitioners will not serve any purpose and no overt act is alleged against the petitioners, granted bail. Learned Sessions Judge observed that in the absence of any finding that there is no reasonable ground to think that petitioners have committed offence punishable with death or imprisonment with life, learned magistrate had no jurisdiction to grant bail. It is further observed that records prima facie revealed involvement of petitioners in the alleged conspiracy and abetment. Holding so, the order Crl.R.P.No.1224/2009 3 passed by learned magistrate was set aside. In challenge of the order passed by learned Sessions Judge, petitioners have come in revision. 3. Learned counsel for petitioners contend that learned Sessions Judge was not correct in holding that learned magistrate had no jurisdiction to grant bail to an accused involved in commission of offence punishable with death or imprisonment for life. It is also contended by learned counsel that learned Sessions Judge has not entered a finding that materials on record are sufficient to prima facie show that petitioners have committed offence punishable with death or imprisonment for life. Learned counsel therefore prayed that the impugned order passed by the learned Sessions Judge may be set aside restoring the order passed by learned magistrate. Learned public prosecutor per contra contended that there are sufficient materials on record to show involvement of petitioners in criminal conspiracy, abetment of the crime and harbouring some of the offenders after the incident and hence learned magistrate could not have granted bail in view of the restriction contained in Section 437(1)(i) of the Code. 4. Section 437 (1) of the Code, no doubt gives power to the magistrate to grant bail in cases involving non-bailable offences also but under clause (i) of Sub-section (1), a magistrate could not grant bail if there appeared reasonable ground for believing that the person concerned has been guilty of an offence punishable with death or imprisonment for life. So much so, a magistrate could grant bail to a person accused of an offence punishable with Crl.R.P.No.1224/2009 4 death or imprisonment for life only on arriving at a satisfaction that there is no reasonable ground to believe that such person has committed an offence punishable with death or imprisonment for life. Therefore, learned Sessions Judge is justified in observing that without entering into such a satisfaction and finding, learned magistrate could not have granted bail under Section 437(1) of the Code. I am unable to understand the observation made by learned Sessions Judge as indicating that under no circumstance a magistrate could grant bail in respect of an offence punishable with death or imprisonment for life. 5. I have gone through the order passed by the learned magistrate. There is no finding that learned magistrate was satisfied that there was no reasonable ground to believe that petitioners have committed an offence punishable with death or imprisonment for life. Instead, what learned magistrate has observed is that records did not reveal any overact on the part of the petitioners and since petitioners had already been put in custody of the investigating officer till 25.2.2009 at 5 p.m. their continued detention will not serve any purpose. On going through the order passed by learned magistrate I am satisfied that it was not on a finding, express or implied that there appeared no reasonable ground to believe that petitioners have committed offence punishable with death or imprisonment for life that they were granted bail. 6. So far as the order impugned in this revision is concerned (passed by learned Sessions Judge), learned Sessions Judge has stated about the alleged role of petitioners in the alleged criminal conspiracy and abetment of Crl.R.P.No.1224/2009 5 the crime. To supplement the contention of learned Public Prosecutor, investigating officer has filed a statement and additional statement stating the materials so far collected, regarding the alleged involvement of petitioners in the incident. The entire C.D. files in four volumes was placed before me. Gist of the allegations and materials collected against the petitioners are contained in the statement and additional statement filed by the investigating officer which are not disputed before me. That refers to the alleged involvement of the petitioners in the criminal conspiracy, abetment and harbouring of some of the offenders. Accused, Mithun confessed that the crime was committed at the instigation of the petitioners. The immediate provocation for attacking Biju, the deceased was that BJP leaders including petitioners thought that Biju was behind throwing of burning torch into the dharna organized by the BJP activists. On the evening of 29.6.2008 accused Nos.1 and 2 were taken to the BJP office by accused No.6 where the conspiracy was hatched up by the petitioners who instigated the accused to attack Biju. Accused Nos.1 and 2 were offered the assistance of two others also. Accused No.3 is said to have confessed the involvement of petitioners in the conspiracy. Petitioners provided the assailants with food and shelter. The mobile phones of petitioners and other accused during the relevant time revealed frequent incoming and outgoing calls between petitioners and accused Nos.1, 3 and 6. CWs148 and 149 have stated that they have seen petitioners waiting outside their party office on the evening of 29.6.2008 , accused Nos.1, 2 and 6 reaching there in an autorickshaw and all of them going Crl.R.P.No.1224/2009 6 into the party office. Petitioner No.1 is stated to have told CW148 while they were going into the party office that they (petitioners and accused Nos.1, 2 and 6) had an urgent matter to be discussed. CW150 has seen accused Nos.1 and 2 going to the house of petitioner No.1 on 30.6.2008 at about 7.30 p.m. Petitioner No.1 and accused No.3 were then at the courtyard of the former. The investigating officer has also narrated in his statement in paragraph 24 other details to show the alleged conspiracy and abetment involving petitioners. After the incident on 4.7.2008 accused Nos.1 and 2 were taken to safe places in a vehicle arranged by petitioner No.2 at the instance of petitioner No.1. Petitioners are also said to have visited accused No.2 in the house of accused No.12 where accused No.2 was allegedly harboured after the incident. The investigating officer states about the possibility of petitioners being subjected to polygraph test. 7. Learned Sessions Judge in paragraph 7 of the impugned order has stated about availability of materials to show prima facie, involvement of petitioners in the alleged conspiracy and abetment for murder. I am to bear in mind that so far as criminal conspiracy and abetment are concerned, there may not be any direct evidence to prove the same, and only relevant circumstances can be brought in. On going through the statement and additional statement filed by the investigating officer, I am unable to find fault with the stand of the learned Sessions Judge that from the materials on record learned magistrate could not have formed the opinion that there is no ground to believe that Crl.R.P.No.1224/2009 7 petitioners are involved in an offence punishable with death or imprisonment for life. That being the factual and legal position, I am satisfied that learned magistrate was not correct in law or on facts in granting bail to the petitioners. Learned Sessions Judge is right in setting aside the order passed by learned magistrate. I do not find reason to interfere with the order under challenge. Revision fails. It is dismissed. THOMAS P.JOSEPH, Judge. cks