SMITHLAL Vs. STATE OF KERALA

JUDGEMENT

(1.) This application for bail filed under S. 439 of Criminal Procedure Code is by the ninth accused in Crime No. 766 of 2012 of Pudukkad Police Station, who turned as approver and who was granted pardon by the court concerned. Petitioner along with other accused are alleged to have committed offences punishable under Ss. 120B, 143, 147, 148, 341, 324, 326, 302 and 212 read with S. 149 I.P.C. and also S. 27 of the Arms Act.

(2.) The incident which gave rise to the case occurred on 6.6.2012 at about 11 p.m. The petitioner along with six other persons armed with deadly weapons attacked one Kamsheer and Gopi causing serious injuries to them and they succumbed to their injuries. Petitioner claims to be innocent and that he has been falsely implicated. It is pointed out that his statement under S. 306(4) Cr.P.C. has been recorded as he turned approver and his pardon was accepted. His plea for bail was rejected by the Sessions Court. It is also pointed out that all other accused have been released on bail and he has been in custody from 16.6.2012. It is pointed out that the Sessions Court, while dismissing the application for bail ought to have considered the principle laid down in the decision reported in Shammi Firoz v. National Investigation Agency, 2010 4 KerLT 409 . It is pointed out that the trial is not likely to take place in the near future and it is quite inappropriate to keep the petitioner in custody till the trial is over. He therefore prays for grant of bail.

(3.) Learned Public Prosecutor very vehemently opposed the petition. It was pointed out by her that the petitioner, having turned an approver and granted pardon by the JFCM court, cannot be released on bail in view of S. 306(4) Cr.P.C. That is a mandatory provision and that being one of the conditions under which pardon was granted cannot be waived by any court. Even the inherent power available to this court under S. 482 Cr.P.C. cannot be invoked to get over the interdiction imposed by S. 306(4) Cr.P.C., which is intended to protect an accused, who had turned as approver. Learned Public Prosecutor distinguishes the decision relied on by the learned counsel for the petitioner by pointing out that that was a case where pardon was granted under S. 307 Cr.P.C. by the Special Court which is infact Sessions Court and in such cases, the prohibition under S. 306(4) Cr.P.C. may not strictly apply. Under such circumstances invoking the power under S. 482 Cr.P.C. that this court had granted bail in the decision relied on by the learned counsel for the petitioner. It is therefore contended that the bail application is only to be dismissed.