Allowed

Nissam v. State of Kerala

Kerala HC4 Dec 2012Bail Appl./7734/2012

Case brief

AI extract

What is this about?

The High Court of Kerala allowed a bail application filed by 5, 8 and 9 accused in a case involving murder, conspiracy and other offences. While acknowledging risks, the court granted bail subject to strict conditions including reporting, restricted movement, and bond execution, noting that indefinite detention during re-investigation is unjustifiable.

What did the court decide?

Granted bail to accused Nos. 5, 8, 9 on bond of Rs. 25,000 each with two sureties, subject to reporting to IO, restricted movement, and surrender of passport.

Nissam Vs State of Kerala — Murder and Culpable Homicide | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:

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THE HONOURABLE MR.JUSTICE P.BHAVADASAN

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TUESDAY, THE 4TH DAY OF DECEMBER 2012/13TH AGRAHAYANA 1934

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Bail Appl..No. 7734 of 2012 () -----------------------------(CRIME NO.84/2012 OF PAYYOLI POLICE STATION, KOZHIKODE DIST.)

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PETITIONERS/ACCUSED NO.5, 8 & 9 :

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1. NISSAM, AGED 35 YEARS, S/O.MOHAMMED, MARAVANTEKANDI HOUSE AYANIKKAD, KOZHIKODE DISTRICT.

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2. NIDHEESH, AGED 22 YEARS, S/O.DINESAN, CHORIYANCHAL, THAREMMAL HOUSE, AYANIKKAD, KOZHIKODE.

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3. PRIYESH, AGED 22 YEARS, S/O.PRAKASHAN, CHORIYANCHAL, THAREMMEL HOUSE, AYANIKKAD, KOZHIKODE.

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BY ADVS.SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN

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RESPONDENT/STATE:

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STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM – 682031 (CRIME NO.84/2012 OF PAYYOLY POLICE STATION KOZHIKODE DISTRICT)

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ADDL.R2 & R3 IMPLEADED

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ADDL.R2. LEELA, AGED 55 YEARS, W/O.KANARAN, CHORIYIYANCHAL THARAMMEL, AYANNIKKD P.O., VIA. IRINGAL PAYYOLI

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ADDL.R3. K.T.PUSHPA, AGED E7 YEARS, W/O.LATE MANOJ CHORIYANCHAL THARAMEL, AYANNIKKAD P.O., VA, IRINGAL, PAYYOLI.

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ADDL.R2 & 3 IMPLEADED AS PER ORDER DT.4.12.2012 IN IA CRL.MA.6940/12 IN BA.7734/12.

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BY PUBLIC PROSECUTOR SRI.C.RASHEED BY ADV. SRI.B.RAMAN PILLAI BY ADV. SRI.R.ANIL BY ADV. SRI.SUJESH MENON

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION 04-12-2012, ALONG WITH B.A.7901/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK

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P.BHAVADASAN, J

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-----------------------------------------

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B.A Nos.7734/2012 & 7901/2012 --------------------------------------------------Dated this the 4^th day of December, 2012

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O R D E R

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The petitioners are accused Nos.4, 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 in Crime No.84/2012 of Payyoli Police Station, who are alleged to have committed offences punishable under Sections 143, 147, 148, 452, 427, 341, 323, 307 and 302 r/w 149 IPC.

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Fortunately, for this Court the exercise of narrating the facts and other details becomes unnecessary, as that exercise had already been undertaken by this Court while disposing of B.A No.4951/2012 filed by accused Nos.1 to 14 in Crime No.84/2012 by order dated 14.8.2012. This Court after adverting to the rival contentions and finding that the objection raised by the prosecution then had sufficient strength and is sustainable and feeling that it may not be proper to release the petitioners then on bail considering the circumstances and also the possibility that they creating a terrifying atmosphere making it impossible for the witnesses to depose before the Court, disposed of the bail application as follows:

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: 2:

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B.A Nos.7734/2012 & 7901/2012

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“Considering the special and exceptional reasons projected by the Prosecution, I find that if the accused are granted bail it would affect the smooth and fair trial. Hence this application is dismissed. The learned Magistrate will commit the case to the Court of Sessions (if not already committed) within three weeks from the date of receipt of the copy of the Order. The learned Sessions Judge will see that the case is tried and disposed of at the earliest, at any rate within four months from the date of receipt of the records from the Committal Court.”

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The petitioners approached the Apex Court. The Apex Court after noting that this Court had directed the trial will be completed within four months from the date of the committal, thought it fair enough and did not feel it necessary to interfere.

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Thereafter on a motion made by the wife of the deceased on 20.9.2012, further investigation was ordered. Further investigation this Court is told regarding the conspiracy. According to the person, who sought further investigation, much more powerful and influential persons involved in conspiracy and they had been deliberately left out for obvious reasons.

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When these petitions came up for hearing, the learned Public Prosecutor pointed out that the investigating agency had obtained orders from the concerned Magistrate

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B.A Nos.7734/2012 & 7901/2012 : 3:

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for further questioning of the persons in custody as part of further investigation.

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The learned counsel appearing for the petitioners pointed out that in view of this development the direction of this Court to complete the trial within four months from the date of commencement is impossible and the persons will be in jail for a long period. One cannot say when further investigation will be completed and report filed.

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Considering the long period during which the petitioners have been in custody, it is contended that they may be released on bail on imposing any condition so as to ensure that they do not try to influence the witness.

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The learned Public Prosecutor was heard. It was submitted on his behalf that the questioning of the persons as per the order is going on and it may not be possible at this point of time to say when the final report can be filed.

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In the meanwhile, the wife and mother of the deceased got impleaded and they opposed the petition for bail. Attention is drawn for the observation of this Court, while disposing the earlier application, about the nature of the crime, character and antecedent of the petitioners and

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B.A Nos.7734/2012 & 7901/2012 : 4:

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the terrifying atmosphere prevalent in that area and also the possibility of the petitioners influencing the witness and making the trial a mockery etc. It is contended that those circumstances continue to prevail and a different view is not warranted at this point of time. It is pointed out that the petitioners do not deserve any leniency or sympathy.

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It cannot be disputed that the petitioners have been in custody for a long period. True, the murder committed by them is gruesome. It was a brutal murder. It is true that this Court on an earlier occasion had made observations regarding the conduct of the petitioners and the possibility of a fair trial becoming difficult in case the petitioners are released on bail then. This Court therefore thought it is fit to issue a direction which had already been referred to.

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Now a fresh look has to undertaken in the light of the that fact a further investigation has been ordered and the proceedings have just begun. It will not be possible according to the learned Public Prosecutor to definitely state as when the investigation would be completed and a report would be laid which would enable the court to proceed with

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B.A Nos.7734/2012 & 7901/2012 : 5:

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the trial of the case. Eventhough it is pointed out that the further investigation is restrained only to the conspiracy aspect if the other facts would be revealed including the involvement or non-involvement of the present accused necessary steps will have to be taken. At any rate, it cannot be disputed that unless a final report in pursuance of further investigation ordered is filed, trial of the case cannot be commenced.

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True, the wife and mother, who have got impleaded, produced a document to show that even while in custody, the petitioners are creating trouble and a crime has been registered with reference to their criminal acts in the jail. Such persons according to the the learned counsel appearing for those persons pointed out do not deserve any sympathy and if enlarged on bail, the trial will become a mockery.

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The conduct of the petitioners cannot be appreciated. But one has also to remember that they cannot be detained in prison for indefinite period, especially when the re-investigation is ordered. By no stretch of imagination the overt act committed by them can be justified. At this

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B.A Nos.7734/2012 & 7901/2012 : 6:

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point of time, this Court is only concerned with the allegations. The petitioners have undergone pre-trial detention for a considerable period.

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If the apprehension is that in case the petitioners are released on bail they are likely to interfere with the trial and are likely to influence the witnesses, that can be taken care of by imposing adequate conditions and strict measures to ensure that such situation do not arise.

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Considering the fact that it may not be possible as of now to say when the trial could commence. Further incarceration of the petitioners at the pre-trial stage appears to be unjustifiable. The petitions are allowed as follows:

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i) The petitioners shall be released on bail on each of them executing a bond for Rs.25,000/(Rupees twenty five thousand only) with two solvent sureties each for the like sum each to the satisfaction of the III Addl. Sessions Court, Kozhikode

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ii) The said Court shall ensure the identity of the sureties and also the veracity of the tax receipts before granting bail.

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Iii) The petitioners shall report before the Investigating Officer on every Friday between 9 am and 10 am till final report is laid.

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iv) Except for the above purpose mentioned in Clause (iii), the petitioners shall not enter the

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: 7:

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B.A Nos.7734/2012 & 7901/2012

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Kozhikode District.

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v) The petitioners shall surrender their passport before the Court concerned. If they do not have any valid passport, they should file an affidavit regarding the same before the Court concerned.

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vi) The petitioners shall not leave the State of Kerala.

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vii) The petitioners shall not tamper or attempt to tamper with the evidence or influence or try to influence the witness.

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viii) If any of the conditions is violated, the bail granted shall stand cancelled and the Court concerned, on being satisfied of the said fact, may take such proceedings as are available to him in law.

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P.BHAVADASAN Judge

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Nissam v. State of Kerala

Case brief

What is this about?

What did the court decide?

Nissam v. State of Kerala

Case brief

What is this about?

What did the court decide?

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