STATE Vs. ARUNDAS V.P. AND ORS.

JUDGEMENT

(1.) THE Investigating agency, Central Bureau of Investigation, (hereinafter referred to as 'the CBI' for short) has challenged the order granting bail to accused 4 to 6 in Crime No. RC.2 (S)/2008/CBI/SCB/Chennai under Sections 482 and 439(2) of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for short).

(2.) THE case of the prosecution was that one P.K. Fazal @ Muhammed Fazal, an agent of Thejus news paper and a N.D.F activist, was murdered at wee hours on 22.10.2006 at Jagannatha Temple Road, Thalassery. The allegation was that the accused persons conspired together to do away Fazal as he had joined NDF after leaving the political party to which the accused persons were said to be the active workers and sympathizers. The case was originally registered by the local police as Crime No. 442/2006 under Section 302 of the Indian Penal Code against unknown persons. Thereafter on 3.11.2006, considering the gravity of the offence and its impact in the society, the investigation was transferred to CBCID, Kannur and they were initially conducting the investigation and they arrested accused 1 to 3 and they were remanded to custody. Since the investigation was completed, they were granted default bail under Section 167(2) of the Code. Thereafter, the wife of the deceased, Smt. Mariyu, approached this Court by filing a petition under Article 226 of the Constitution of India seeking for CBI investigation and this Court allowed the application and accordingly the case was transferred to CBI for investigation and the Chennai unit of the CBI had taken over the investigation and re -registered the case as RC 2(S)/2008/CBI/SCB/Chennai. During investigation, it was revealed that the present petitioners were also involved in the crime and they were implicated as accused Nos. 4 to 6 and accused 4 and 5 were arrested on 15.3.2012 and the 6th accused was arrested on 16.3.2012. Thereafter investigation was completed and final report was filed as against six accused persons including the present respondents and the case was committed to the sessions court and now it is now pending as S.C. No. 405/2012 before the Special Court for CBI -I (Third Additional Sessions Court), Ernakulam. After filing the final report, the present respondents filed Crl.M.C. No. 1460/2012 before the Sessions Court, Ernakulam for regular bail and after hearing both sides, the learned Sessions Judge allowed the application and granted bail imposing certain conditions. This order is being challenged by the investigating agency, CBI, by filing this petition before this Court.

(3.) THE Standing Counsel for the CBI has submitted that the sessions judge has not taken note of the graveness of the offence committed by the accused persons before granting bail as contemplated under section 437 of the Code. Further, on the basis of the further investigation conducted, two persons were also found to be involved in the commission of the crime as conspirators and they were added as accused 7 and 8 and it is further revealed that two unknown persons are also yet to be traced out as the persons who had really involved in the commission of the crime along with the persons who have been arrayed as the accused. Even the allegation against the present petitioners was that it was they who had used the dangerous weapons and brutally attacked the deceased while other accused persons namely accused 1 to 3 have surrounded him. So the actual perpetrators, include the present petitioners, along with two unknown persons, whose identity yet to be revealed. If these persons or some other persons also really involved in the crime could not be traced out and this aspect has not been considered by the sessions judge while granting bail. He had also relied on the decisions reported in Sanjay Dutt v. State through CBI, Bombay(II) ( : 1994 (5) SCC 410), Kalyan Chandra Sarkar v. Rajesh Ranjan Yadav @ Pappu Yadav & another ( : 2004 (7) SCC 528), Rajesh Ranjan Yadav @ Pappu Yadav & another v. C.B.I. Through its Director ( : 2007 (1) SCC 70), Shahzad Hassan Khan v. Ishtiaq Hassan Khan & another (1987 SC 1613) and Masroor v. State of U.P & another ( : 2009 (14) SCC 286) in support of his case. He had also relied on a decision of the Hon'ble Supreme Court in Abdul Basit @ Raju & others v. Mohd. Abdul Kadir Chaudhari & another ( : 2014 (10) SCC 754) for the proposition that bail can be cancelled only by the higher court and not by the court which granted bail, which prompted them to file the petition before this Court.