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Judgment
Justice N.K. Balakrishnan
The petitioner is the 8th accused in Crime No:240/2012 of Areacode Police Station, Malappuram District. The offences alleged are under sections 143, 147, 148, 120(b), 302, 212 and 201 r/w 149 of IPC and section 7 r/w 27 of Arms Act. The petitioner was arrested on 14.06.2012 and he has been in custody since then. His application for bail was dismissed by this court as per Annexure A3 order dated 09.07.2012. The learned counsel for the petitioner submits that no material has been collected by the Investigating agency to show that the petitioner was one of the conspirators in the commission of the murder. According to the learned counsel the only offences alleged to have been committed by the petitioner are under sections 201 and 212 of I.P.C., which are only bailable offences. He would also submit that even in the second remand report, filed by the Police before the learned Magistrate, nothing has been stated to indicate that the petitioner conspired with other accused persons to cause the murder of the two persons mentioned in the crime. This has been strongly resisted by the learned Director General of Prosecution. In the second remand report also it has been stated that the accused persons had, in pursuance of the criminal conspiracy, caused the murder of the two persons etc. Those accused persons include the petitioner herein, who is the 8th accused, the learned D.G.P. submits. The specific overt act that he helped his brother-in-law, who was one of the murderers, to leave the country has been cited only as one of the instances to prove the criminal conspiracy but it does not mean that, that was the only overt that can be found against the petitioner herein, the learned D.G.P. submits. The facts of the case and the observations made by this court, while disposing Annexure A3 application can be stated here to avoid repetition of the facts. It was stated thus:
"One Athik Rahiman was murdered on 05.01.2012. It is alleged that thereafter, a criminal conspiracy was hatched among accused nos. 2 to 4 and 9 to 24 herein, under the leadership of A11, A23 and A24 to retaliate causing the murder of the persons arrayed as accused in the earlier murder case. It is further alleged that, in pursuance of that criminal conspiracy, the conspirators sat and discussed together at different places on different occasions and agreed to cause the murder. The conspirators mustered physical strength and collected deadly weapons and vehicles for that purpose. On 10.06.2012 at about 7.00 pm, an information was received by the accused persons that the 4th and 6th accused in the earlier murder case and their brothers Kolakkadan Abdul Kalam Azad and Kolakkadan Aboobacker were in Kuniyil Bazar. That information was passed on to A19 over phone by A22 and accordingly the accused persons proceeded to Kuniyil Bazar in two vehicles bearing nos. KL-07-T-6033 and KL-10-AD-8445. It is alleged that they reached Kuniyil Bazar at about 7.30 pm. Kolakkadan Abdul Kalam Azad was standing on the road margin near the shop ''M.P. Sounds & Decoration''. It is stated that A2, A10 and A19 attacked the deceased Abdul Kalam Azad with choppers; A3 attacked with sword stick and A4 and A9 attacked with swords. It is stated that the accused persons also brandished deadly weapons and created a terrifying atmosphere to make the persons nearby to flee from that spot and thereafter, they hacked Abdul Kalam Azad to death from the shop/varandah of the shop. It is also alleged that the Kolakkadan Aboobacker, the brother of deceased Abdul Kalam Azad, was near the hardware shop. He was attacked by A14, A15 and A16 with choppers and other deadly weapons. Thus, both those persons were hacked to death by the accused persons.
It is alleged that this petitioner, who was a party to the criminal conspiracy and who is the brother-in-law of A4, harboured A4, whom he knew or had reason to believe to be an offender with the intention of screening him from legal punishment. In order to facilitate A4 to escape from being apprehended by police, the petitioner made arrangements and took A4 to the airport and thus helped A4 to go abroad. It is stated that subsequently, A4 was brought back from the gulf country and was arrested by the Police.
The learned Director General of Prosecution, Mr. Asaf Ali, would submit that there was a deep rooted conspiracy to cause the murder of Abdul Kalam Azad and his brother and others, who were the accused in the earlier Athik Rahiman murder case and therefore, it is not a case where this petitioner has committed only the offence u/s 212 of IPC. The learned counsel for the petitioner submits that there is no material to show that this petitioner had entered into any criminal conspiracy and so the petitioner cannot be detained any more. The learned Director General of Prosecution has produced the copies of Case Diary statements, mahazars and other documents to fortify his submission that there was deeper conspiracy to cause the murder of the deceased persons in this case. The learned D.G.P. has not detailed in court all the materials so far collected by the investigating agency, as disclosure of the same would adversely affect the smooth investigation of the case, but has produced those materials so as to enable the Court to peruse the same. It is pointed out that even long prior to the date of the incident, arrangements were made by the accused persons in pursuance of the criminal conspiracy to collect men and materials and also to arrange vehicles to reach the place of attack and also to escape from the scene and even to escape from this country. It was done sufficiently early. It was also stated that the investigating agency has collected materials as to the further details of the criminal conspiracy hatched by the accused persons."
For the purpose of considering this bail application, the Case Diary has been again made available for perusal. There are sufficient materials to show that a criminal conspiracy was entered into to cause the murder of Kolakkadan Abdul Kalam Azad and Kolakkadan Aboobacker and also as to the places from where criminal conspiracy was entered into and as to the directions given to the persons involved in the conspiracy and as to how the murder-operation was to be carried out. Some of the persons were deputed to undergo training in Karate, gymnastics, kalari etc. There are also indications as to the collection of weapons, collection of vehicles etc. Though the names of the persons who had participated in the conspiracy at different places were mentioned, it is stated that in those groups of persons/conspirators the name of this petitioner is not mentioned. But sufficient materials were collected regarding his role in helping A4, Muktar, one of the main accused (the brother-in-law of this petitioner), to leave this country by arranging air ticket and vehicle to go to the airport. Though the prosecution wanted to contend that this was also part of the original criminal conspiracy, it cannot be said that this petitioner was a conspirator or had participated or had the knowledge of the intended murder, the learned counsel for the petitioner submits. It is not necessary to go deep into all those aspects at this stage. The petitioner has been in custody since 14.06.2012.
Considering the period of detention already undergone by the accused and other aspects, the accused is granted bail subject to the following conditions:
(i) The accused shall execute a bond for Rs. 2,00,000/- (Rupees Two lakh only) with two solvent sureties each for the like sum to the satisfaction of the learned Magistrate. If in case the Magistrate has any doubt about the genuineness or correctness of the tax receipts produced by the sureties, the learned Magistrate can insist for production of the attested photo copies of the original title deeds of the sureties.
(ii) The accused shall make himself available for interrogation by the Investigating Officer and that he should appear before the Investigating Officer on all Mondays and Fridays between 9.30 AM to 11.30 AM until further orders.
(iii) The accused shall produce his original passport before the learned Magistrate. If he is not having any valid passport, he should file an affidavit regarding the same before the Magistrate.
(iv) The accused will also file an affidavit that he will abide by all the conditions as mentioned above and that he will not commit any offence similar to the offence involved in this case and that he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(v) The accused shall not leave the State of Kerala without the prior permission of the learned Magistrate.
(vi) The learned Magistrate will also ensure the identity of the sureties by insisting production of electoral photo identity cards/Driving licence etc.
(vii) The petitioner shall not enter Malappuram District except for the compliance of condition no. ii.