ISMAIL Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein is the third accused in Crime No.1795/2015 of the Chavakkad Police Station, registered under Sections 120B and 115 of the Indian Penal Code. A criminal conspiracy to kill a political leader, by name Gopaprathapan, is the subject matter of this crime. The murder of one Haneefa, a political activist, created some public protest against the said Gopaprathapan, within his own political party. The said public protest developed to the extent of some activists within the same party hatching a conspiracy to do away with Gopaprathapan. It is alleged that the accused Nos. 1 and 2 in this crime hatched such a conspiracy and they decided to have it carried out by engaging somebody on payment. The petitioner herein was accordingly contacted. When the petitioner consented, the accused Nos. 1 and 2 confirmed the deal, and accordingly the petitioner accepted the task for an amount of 10 lakhs. An amount of 10,000/ - was paid in advance to the petitioner by the accused Nos. 1 and 2 in Nov. 2015. The petitioner herein is a previous convict. He has more than two convictions to his credit in different cases including the one initiated by his own wife, and he was also a detainee under the KAAPA. The second accused is also a previous convict. The alleged conspiracy was finalised on 24.11.2015 at the Ottayini Beach, Chavakkad. When the petitioner herein later approached the accused Nos. 1 and 2 for instructions regarding the modalities to carry out the criminal design, the first accused asked him to wait for sometime, and then the petitioner herein smelt that he was being suspected or avoided by the others. In such a situation, he had a rethinking, and accordingly he divulged everything to the said Gopaprathapan. The petitioner even handed over a CD to Gopaprathapan, containing some conversions between the three accused concerning the criminal design hatched by them. On the basis of such definite materials, Gopaprathapan made a complaint against the three accused.

(2.) All the three accused were arrested by the police during investigation. This petitioner has been in judicial custody since 21.4.2016. It is submitted that the other accused are on bail. Pending the investigation the petitioner herein became an approver, and accordingly he accepted tender of pardon under Sec. 306 Crimial P.C. When he thus gained the status of a witness on acceptance of tender of pardon, he made an application before the learned Judicial First Class Magistrate, Chavakkad for bail under Sec. 437 Crimial P.C. The learned Magistrate dismissed the said application on 23.5.2016, in view of the prohibition contained in Sec. 306(4)(b) Crimial P.C. Now he is before this Court for bail under Sec. 439 Crimial P.C.

(3.) Two legal questions are involved in this application. Of course, when the accused has gained the status of approver, on acceptance of tender of pardon, his application for bail cannot be entertained under Sec. 439 Cr.P.C. Application for bail under Sec. 437 Cr.P.C or under Section 439 Cr.P.C can be filed only by an accused. By acceptance of tender of pardon, the petitioner herein has legally and practically ceased to be an accused temporarily, and he has gained the status of a witness, subject of course, to the legally authorised detention under Sec. 306(4)(b) Cr.P.C. One question of law involved in this case is whether the petitioner can be released under Sec. 482 Cr.P.C by this Court, if not under Sec. 439 Cr.P.C, and the other question is, as to what are the circumstances in which the High Court can exercise the discretion under Section 482 Cr.P.C to release an approver on bail.