Kowse Azam Basha vs State

T.V.Thamilselvi, J

The petitioner, who was arrested and remanded to judicial custody on 12.01.2023 for the alleged offences under Sec. 147, 302, 120(b), 201, 364 r/w 109, 34 I.P.C. in Crime No.572 of 2022, on the file of the respondent police, seeks bail.

The case of the prosecution is that the defacto complainant's father Mr.D.Masthan, aged about 66 years, was appointed by the State Government as the Vice-Chairman of Tamil Nadu State Minorities. The petitioner is the younger brother of deceased. The petitioner's son-in-law A1, who had received a sum of Rs.15 lakhs from the deceased and he did not repay the amount. However, due to a property dispute as well as money dispute, on 21.12.2022 at about 10.30 p.m. when the deceased went to Chengalpattu along with Mr.Imran Basha (A1), who was driving the car and two other accused, while crossing Chengalpattu tollgate, at that time, A1's friends get into a car and they have closed the nose of deceased with a dowel, thereby he died due to shortness of breadth. Thereafter, he was taken to a hospital and the doctors stated that he brought dead. Accordingly, the complaint was registered against the petitioner.

The learned counsel for the petitioner submitted that the petitioner is ranked as A6 and brother of deceased falsely implicated this petitioner as accused in this case. He would submit that there is no property dispute between the petitioner and his brother and all are family members. He would submit that only based on suspicion ground, the defacto complainant gave a complaint under Sec.174 of Cr.P.C. and subsequently, it was altered into Sec.302 of I.P.C. He would submit that he is an innocent person and he has not at all committed any offence as alleged by the respondent police and he is no way connected with the said occurrence. He would submit that there is no role of the petitioner in the alleged offence and he has been falsely implicated as accused in this case and other co-accused was granted bail. He would further submit that the Apex Court by an order dated 15.05.2023 in S.L.P.No. 5831-5832 of 2023 granted liberty to the accused, who are involved in this case to apply for bail after six months before this Court. He would submit that the investigation is almost completed and that the petitioner has been suffering incarceration from 12.01.2023 and this is the third petition seeking for bail. Hence, he prayed to grant bail to the petitioner.

The learned counsel for intervenor raised objections stating that he has lodged a complaint over the suspicious death of his father in the early hours on 22.12.2022 after he left out of his residence at Royapettah with his nephew-in-law A1 on the night of 21.12.2022, which was registered under Sec.174 of Cr.P.C. Upon investigation, it reveals that on the date of occurrence, due to a family dispute as well as money dispute, while travelling in a car from Chennai to Trichy, A1 with the help of other accused, they closed the nose of deceased with a dowel, thereby he died due to suffocation, however, they have created a scene that he died due to heart attack. Accordingly, in the alteration report, the respondent police found the death of his father to be a case of murder and arrayed them as A1 to A5 and charged them for the aforesaid offences and the respondent police also confirmed the involvement of petitioner, younger brother of deceased and father-in-law of A1 in the criminal conspiracy surrounding the murder of his father and remanded him into custody. The learned counsel would submit that the petitioner is the person, who planned to kill the deceased along with his son-in-law, A1. He has also pointed out that for the past one year, the case is pending without any progress. Hence, he prayed to dismiss this petition and also prayed to issue suitable direction to the trial court.

The learned Government Advocate (Crl. Side) appearing for respondent would submit that totally, there are 7 accused involved in this case and the petitioner is arrayed as A6. He would submit that son-in-law of this petitioner and other accused, who were get into a car subsequently, joined together, due to a dispute over the family property as well as money dispute, while travelling in a car, they closed the nose of deceased with a dowel, thereby due to suffocation, he died, however, they have created a scene that he died due to heart attack. So, it is a pre-planned murder and all the accused were arrested. He would submit that A1 and A6 alone are in custody and the charge sheet was filed and he is the main accused and the investigation reveals that in order to get benefit during the division of family property, his son-in-law involved in the incident and this petitioner also accompanied him. He would also submit that they have moved petition before Supreme Court of India and the apex court by an order by an order dated 15.05.2023 in S.L.P.No. 5831-5832 of 2023 granted liberty to the accused, who are involved in this case to apply for bail after six months before this Court. Now, the said period was completed in the month of November 2023. He would also submit that if he is released on bail, he may abscond and he would tamper the witnesses and hamper the investigation and the investigation is not yet completed and it is in preliminary stage. Hence, he vehemently opposed to grant bail to the petitioner.

On considering the facts and circumstances of the case and also considering the fact that for nearly one year, he was in judicial custody and he has no previous case and also the fact that the Supreme Court of India by an order dated 15.05.2023 in S.L.P.No. 5831-5832 of 2023 granted liberty to the accused, who are involved in this case to file a petition for bail after six months before this Court and now the said period was completed in the month of November 2023, thereby, as on date, the petitioner is entitled to file a petition and the fact that though learned Government Advocate raised objections, however admits that investigation was completed and the case in S.C.No.159 of 2023 is pending for framing of charges and the co-accused A2 to A6 are released on bail and the fact that they are complying the condition regularly and also the fact that no previous case pending against him and he is aged about 60 years and he is ready to abide any condition imposed by this court, this Court is inclined to grant bail to the petitioner subject to the conditions hereunder. However, as pointed out by the learned counsel for Intervenor that for the past one year, the case is pending without any progress, the trial judge is directed to complete the trial and dispose the case within a period of six months from the date of receipt of copy of this order without giving unnecessary adjournment.

Accordingly, the petitioner is ordered to be released on bail on condition to execute a bond for a sum of Rs.10,000/- (Rupees Ten Thousand only) with two sureties each, in which one surety must be a blood surety for a like sum to the satisfaction of the learned Addl. District Judge, Chengalpet and on further conditions that:

(a) the sureties shall affix their photographs and Left Thumb Impression in the surety bond and the learned Magistrate may obtain a copy of their Aadhar Card or Bank Pass Book to ensure their identity;

(b) the petitioner shall stay at Chengalpet and not to leave Chengalpet district and report before the respondent police everyday evening at 05.00 p.m. until completion of trial;

(c) the petitioner shall not commit any offences of similar nature;

(d) the petitioner shall not abscond either during investigation or trial;

(e) the petitioner shall not tamper with evidence or witness either during investigation or trial;

(f) on breach of any of the aforesaid conditions, the learned Judicial Magistrate/Trial Court is entitled to take appropriate action against the petitioner in accordance with law as if the conditions have been imposed and the petitioner released on bail by the learned Magistrate/Trial Court himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW 5560];

(g) if the accused thereafter absconds, a fresh FIR can be registered under Section 229A IPC.