JAYAMOL Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition under Section 482 of the Code of Criminal Procedure is filed by the widow of one deceased Gee Varghese who was allegedly murdered by the fourth respondent herein. In connection with the unnatural death of petitioner's husband, Crime No. 183 of 2012 of Pampady Police Station was registered against the fourth respondent herein. After the investigation, filing of final report and committal, it is now pending before the Court of Additional Sessions Judge (Special), Kottayam as SC No. 276 of 2012 carrying an indication under Section 302 of the Indian Penal Code. The fourth respondent moved CMP No. 2927 of 2012 thereon for grant of bail and the same was allowed with certain stringent conditions as per Annexure-VI order dated 24/09/2012. The petitioner herein seeks for quashment of Annexure-VI order and a further order to proceed with the trial keeping the fourth respondent as an under-trial prisoner considering the gravity and the nature of the offence. The conspectus of facts that constrained the petitioner to come up before this Court with such prayers is as follows:

(2.) The contention of the petitioner is that taking into consideration the serious nature of the charge against the fourth respondent and his conduct and the threat posed by him to the lives of herself and her family members and also considering the hapless and helpless situation on account of her widowhood, it is only appropriate to quash the impugned order granting him bail. The learned counsel for the petitioner contended that the very case of the prosecution would reveal that the fourth respondent is an accused in another murder case viz., Crime No. 473 of 2011 which is also now pending before the same Court as SC No. 267 of 2012 and both the sessions cases are now ripe for trial. The first information statement was given by the father of the petitioner. Therefore, the case of the prosecution is that on 18/03/2012, at about 7.15 p.m., the fourth respondent criminally trespassed into the house of the daughter of the first informant with a view to commit murder of her husband Gee Varghese owing to previous enmity and stabbed Gee Varghese with a knife and on the way to Medical College Hospital, Kottayam, he succumbed to the stab injuries. The contention of the petitioner is that the learned Sessions Judge had not bestowed serious consideration into relevant and material facts. It is in the said context that the petitioner seeks for quashment of the impugned order and a further direction to the Trial Court to proceed with the trial against the fourth respondent. Per contra, the learned counsel appearing for the fourth respondent submitted that consideration of grant of bail and consideration of cancellation of bail stand on different footing and naturally, the scope of consideration is also bound to be different. It is also contended that the conditions imposed by the learned Sessions Judge while enlarging the fourth respondent on bail, as is obvious from Annexure-VI, would reveal that they are stringent and capable of averting the apprehension of the petitioner. It is submitted that condition No. 4 would reveal that the fourth respondent is interdicted from entering into the local limits of the Pampady Panchayat until further orders and going by condition No. 5 therein the fourth respondent could not leave Kerala without the permission of the Sessions Court. The learned Public Prosecutor submitted that the apprehension of the petitioner cannot be said to be devoid of any basis. In other words, the learned Public Prosecutor also endorsed the contentions raised by the petitioner.

(3.) To contend that the fourth respondent is not entitled to be enlarged on bail rather, the order enlarging him on bail is liable to be cancelled, the learned counsel for the petitioner placed reliance on decision of the Hon'ble Apex Court in Kanwar Singh Meena v. State of Rajasthan, 2013 AIR(SC) 296 Pooja Bhatia v. Vishnu Narain Shivpuri and Another,2014 AIAR(Cri) 518, Central Bureau of Investigation v. V. Vijay Sai Reddy, 2013 7 SCC 452 and Nanda Sethi and Others v. State of Orissa, 2014 CrLJ 536. Based on the aforesaid decisions, the learned counsel for the petitioner contended that the primary considerations in cases of this nature should be whether the accused is likely to tamper with evidence or attempt to interfere with due course of justice and whether he is likely to pose threat to the witnesses. On the other hand, the learned counsel for the fourth respondent contended that all the relevant factors were appropriately considered by the learned Sessions Judge while passing the impugned order and therefore, this Court will not be justified in interfering with and cancelling the order granting bail to the fourth respondent. To buttress the said contention, the learned counsel for the fourth respondent placed reliance on a decision of the Hon'ble Apex Court in Khushi Ram v. Hashim, 1959 AIR(SC) 542 . As noticed hereinbefore, the learned Public Prosecutor contended that the apprehension of the petitioner is having basis and in such circumstances, the impugned order is liable to be quashed. In this context, it is to be noted that the prosecution has not moved any petition seeking quashment of the impugned order though it is borne out from records that a day after the passing of the impugned order the prosecution moved a petition for cancellation of the bail order under Section 439(2) Cr.P.C. Evidently, no order has so far been passed thereon and therefore, at this distance of time considering the facts that the impugned order was passed on 24/09/2012 and despite the order granting bail, the fourth respondent is still continuing in judicial custody based on order dated 16/10/2012 in CMA No. 6776 of 2012 in this Crl MC, I think it only just and proper to proceed with consideration of this case, on merits. As per the said order, operation of Annexure-VI order was suspended and the said order is extended from time to time and it is still in force. In short, despite Annexure-VI order dated 24/09/2012, the fourth respondent is still in judicial custody.