Suresh @ Jembulingam Suresh vs State Of Kerala

Mohammed Nias C.P., J

These applications are filed u/s 439 of the Code of Criminal Procedure seeking regular bail by the accused in SC No.658/2017, SC No.1010/2016 and SC No.1406/2018 pending before the Assistant Sessions Court, Neyyattinkara.

B.A.No. 4395/2023 as regards SC No.658/2017, arising from Crime No.634/2013 of Neyyattinkara police station

The prosecution case is that on account of the previous enmity towards CW2-5, who were the witnessed in Crime No. 591/2013 of Balaramapuram Police Station, the accused with their common object to kill them, formed an unlawful assembly armed with deadly weapons near the railway bridge at Oottiyarathala on 03.07.2013 at about 7.45 PM with their common object to do away with their life. It is alleged that the accused split into two groups, and they reached the place of occurrence by proceeding in two directions. It is alleged that on seeing CW1 to 5, the first accused asked the other accused to back them to death. At that time, CW2 to 5 escaped from the spot, and A1 inflicted a cut injury on the head of CWI with a deadly sword, and he again cut him with the sword, which was directed towards his neck. It is alleged that when CW1 blocked the same with his left hand, it fell on his left palm, resulting bleeding injury. It is alleged that A7 inflicted a cut injury on the left flank of CW1 with a deadly chopper, and A8 inflicted a cut injury near the left elbow of CW1. When CW1 fell down, A2, 4 and 5 hit him with iron pipes, and A6 hit him with a cudgel on the various parts of his body, resulting pain and hurt. Thereafter, A2, 4, 5,9, 10 and 24 brandished iron pipes. A6, 14, 15, 17, 18, 19, 21, 22, 23 and 25 brandished cudgels. A1, 3, 12, 13, 16 and 20 brandished swords and created a fearful situation. It is alleged that when CW27, the Inspector of police, Neyyattinkara reached the spot along with CW22 to, 26, and 28, who were on duty along with CW27 and tried to arrest 1l and his associates, A1 intimidated them by saying that if the police party approached them, they willbe hacked to death and thereby deterred them from discharging their official duties.

B.A.No. 4398/2023 as regards SC No.1010/2016, arising from Crime No.796/2013 of Neyyattinkara police station

The prosecution case is that on account of the previous enmity towards CW10- 13, who were the witnesses in Crime No.591/2013 of Balaramapuram Police Station, which was being investigated by CW1, the Inspector of Police, on 03.07.2013 at about 7.45 pm the accused along with 27 others formed into an unlawful assembly, armed with deadly weapons reached near to the railway bridge at Oottiyarathala with their common object to do away with their life. It is alleged that the accused came to Punnakkadu, where CW9-13 were standing and the first accused asked the other accused to kill CW10 and others. When CW10-13 escaped from the place, the 1" accused inflicted a cut injury on the head of CW9 and he again tried to hack the neck of CW9, which was ward off by him with his left hand and thereby sustained bleeding injury. Thereafter, A8 inflicted a cut injury near to his left elbow. CW9 fell down due to the burt was hit with iron pipes by the second, fourth and fifth accused. The sixth accused hit him with a cudgel. The ninth accused inflicted a cut injury on the left rib portion of CW9 and the other accused intimidated CW9 and aided the commission of the offences. When CW1 came to the scene of the occurrence, along with CW2 and 5-8 and tried to arrest the accused, they brandished the weapons and intimidated them stating that they will be killed if they tried to arrest the accused. After scaring the police people, the accused escaped through the by-road leading to the Aaralumoodu Block Office. When CW3 and 4 came in the opposite direction of the accused, A4 and 9 caused damage to the headlight of the motorcycle bearing Reg. No. KL. 01-S-4072, in which CW3 and 4 came there, so as to cause a loss to the tune of Rs. 10,000/-. Thereafter, A4 attacked CW3 with an iron pipe, which was objected by CWI and other witnesses and at that time, AI and the other accused wrongfully restrained them, and the 1" accused asked others to kill the policemen. It is alleged that A1 inflicted a cut injury on the left side of the head of CWI, resulting in grievous hurt, and A2 tried to hit him with an iron rod aiming towards his head and the same was blocked with his left hand and thereby sustained injury on his ring finger and the middle finger. It is alleged that A6 hit CW1 on his left shoulder and A3 kicked on his abdomen, resulting in pain and hurt and caused him to fall on the ground. It is alleged that A1, 3, 12, 13, 16 and 20 were armed with deadly swords, A7 and 8 were armed with deadly choppers and A2, 4, 5, 9, 10 and 24 were armed with dangerous iron pipes and A6, 14, 15, 17-19, 21-23 and 25 were armed with dangerous cudgels and they created a fearful situation and deterred the discharge of the official duties by CW1-8.

B.A.No. 7176/2023 as regards SC No.1406/2018, arising from Crime No.1522/2011 of Neyyattinkara police station

The prosecution case is that the accused had enmity towards CW1, as that he had given a statement to the police against the accused, due to that enmity, these accused formed themselves into an unlawful assembly: They, are in their common intention to commit rioting armed with deadly weapons, trespassed into the house of CW1 at 11:30 PM on 07.09.2011 situated at Maranalloor Desom in Neyyattinkara. The accused entered the hall room. First accused shouted towards CW1 and inflicted cut injury to his shoulder with a chopper. He then uttered obscene words and instituted the 2" accused to kill CW1 by cutting into pieces. The accused Nos. 1 to 9, had beaten and kicked CW1. They had also committed dacoity by stealing the mixie, grinder, oven, and induction cooker worth Rs. 50,000/-, which were kept by CW1for sale. The accused had broken the glass shields of the car bearing No.KL-7 F-8859 parked on the car porch. They had committed mischief by putting fire on the Hero Honda motorbike bearing No. KL 01 AC 2494 kept beside the car. The accused had also attacked CW5, who is the relative of CW8 and the 2½ year child of CW5. As these accused had done so in the provision of their common object, they have committed the offences as alleged.

Heard the learned counsel for the petitioner and the learned Public Prosecutor.

Learned Counsel for the petitioner submits that since the petitioner has undergone more than one-half of the period of the maximum punishment that could be awarded in the offence alleged against him, he is entitled to be enlarged on bail under Section 436-A of the Cr.P.C. He also argued that since 11/12/2014, he has been in judicial custody, and as of right, he is entitled to be granted bail under Section 436-A Cr.P.C. His claim for bail under the said section was wrongly rejected by the Sessions Court by Annexure 2 order. It is also his argument that the petitioner has not contributed to the delay in the trial of the case and prayed for bail so as to properly defend the cases against him.

The Learned Public Prosecutor opposing the bail application submits that the petitioner is a history-sheeter with thirty-eight crimes in the various police stations, a list of those cases was also annexed. Out of the said 38 criminal cases, in 29 cases, the petitioner was acquitted, and seven cases are in the trial stage. It is also the argument of the Prosecutor that the petitioner has always attacked the witnesses who were given evidence against him, and it is out of fear that in most of the cases, the witnesses had turned hostile, leading to the unmerited acquittal of the petitioner. It is also the argument of the Prosecutor that even under 436-A, for reasons to be recorded therein in writing, bail can be refused going to the proviso to the said section.

This Court, by order dated 9/10/2023, had called for a report from the court below as to the time required for finally disposing of SC No. 1010/2016, SC No.658/2017 and SC No.1406/2018 a report has been filed on 16-10-2023, the relevant portion of which is extracted hereunder:-

BA No.7176/2023

“With reference to the above, in SC No.1406/2018 the offences alleged against the accused are U/s. 143,147, 148, 149, 452, 323, 324, 294(b), 435, 395, 327, 307 of IPC and S.27 Arms Act. Case against accused Nos.1, 3 to 7 and 9 committed to the Hon'ble Sessions Court, Thiruvananthapuram U/s.209(a) Cr.P.C by the learned Magistrate as per order dated 23.08.2018, which was made over to this court for trial and disposal. On perusing the proceedings it is found that the trial was completed. On 06.02.2023 and thereafter the hearing adjourned several times upon the applications of the counsel for the accused. I have joined this station as Assistant Sessions Judge on 20.05.2023. A1 is in judicial custody. He applied time for hearing on various grounds and his counsel was also absent continuously. Hence, notice was issued to the learned counsel for A1 but he did not turn up. Thereafter, A1 prayed time for filing fresh vakalath and even now A1 did not file fresh vakalath. The prosecution and other accused heard. As A1 is not willing to put forward his argument and his counsel is also absent, I am not able to dispose of the case. It is humbly submit that I will take earnest effort to dispose of the case within one month.

BA No.4395/2023

In SC 658/2017, the offence alleged against the accused are U/s.143, 147, 148, 149, 324. 353, 506(ii) 307 IPC and S.27 of Arms Act. There are 37 witnesses in this case out of which 9 witnesses were examined and the case is posted to 27.10.2023 for examination of some witnesses. There are 28 accused presents in this case out of which A1 is in judicial custody. He is not co-operating for the trial. There are 27 witnesses remaining to be examined. Hence, it is humbly submitted that the case can be disposed of within six months.

BA No.4398/2023

In SC 1010/2016, the offences charged against the accused U/s.143, 147, 148, 149, 341, 323, 324, 332, 427, 516(i) and 307 IPC and S.27 of Arms Act. There are 28 accused in this case. There are 47 witnesses altogether in this case out of which 11 witnesses were already examined. The examination of witnesses is taking too much time as they are to be cross-examined by all the accused. In this case also, A1 is in judicial custody. His counsel is continuously absent. There are 34 witnesses remaining to be examined. As A1 is not co-operating for the trial, it is causing inconvenience in the smooth conduct of the trial. I am humbly submit that I will take earnest effort to dispose of the case within 8 months. The next posting date of the case is on 27.10.2023.

It is humbly submit that the first accused in all the above cases is one Suresh @ Jumbulingam Suresh, S/o. Sudhakaran who is in judicial custody for the last so many years. On producing him before the court through video conferencing, he used to submit that he wants to adduce additional evidence and it can be done only if he is released on bail. He is not co-operating for the trial and his counsel is also not appearing before the court, even though, notice has been issued to him. This is causing inconvenience for the speedy disposal of the above cases. He made kindly be given direction to co-operate with the trial of the case.”

Having considered the rival submissions and the report of the court extracted above, I notice that the petitioner was responsible for the delay in the completion of the trial of the cases. The report submitted by the learned Judge is self-explanatory. That apart, the petitioner in all the cases had attacked the witnesses who had given statements against him in the previous cases where the petitioner was accused, not even sparing a small child, and this propensity of the petitioner has to be taken into account as if he is enlarged on bail, the chances of the witnesses being intimidated are very likely frustrating a proper trial. Taking into account the antecedents of the petitioner, the report of the court below, dated 16.10.2023, that specifically points out the non-cooperation of the petitioner and the apprehension of the prosecution that the trial will be if the petitioner is released on bail being well founded, I am not inclined to grant bail to the petitioner.

As regards his contention under Section 436-A of the Cr.P.C., it has to be noticed that there is no absolute right conferred upon the under-trial prisoner to be released on bail. The first proviso empowers the court to reject the claim for bail for reasons to be recorded. Thus, it does not envisage an automatic release, unlike Section 167(2) Cr.P.C., i.e., default made during the investigation, but is akin to sub-section 6 of Section 437 thereof. It is pertinent to note that the proviso allows for the continued detention of such persons for a period longer than stipulated under S.436-A for reasons to be recorded in writing. In the instant case, the fact that the accused had been involved in so many cases of a similar nature apart from being a habitual offender attacking the witnesses of the cases where the petitioner was an accused and not even sparing a young child. His acts are dangerous to the community and to the justice dispensation system. Under such circumstances, I hold that the petitioner is not entitled to bail under Section 436-A Cr.P.C.

As regards BA No. 7176/2023, from which SC No.1406/2018 arises, the hearing is also over, and the court below has pointed out that the trial can be completed in a month's time. This is recorded, and the said bail application is closed. As regards the other two cases (BA Nos.4395/2023 & 4398/2023), the delay happened only because of the defiant attitude of the petitioner, as noted above. For the aforementioned reasons, the bail applications will stand dismissed.

However, there will be a direction to the court below to strictly adhere to the timeline indicated in the report dated 16-10-2023. The petitioner is directed to cooperate with the smooth conduct of the trial to ensure the completion of the trial as directed above.

Subject to the above, the applications are dismissed.