Bail Applications Nos. 5643 of 2011 and 5844 of 2011 (Ummer Farooq @ Farooq Munnoor and Shadeer P. v. Central Bureau of Investigation)

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 22ND JULY 2011 / 31ST ASHADHA 1933 ## **Bail Appl..No. 5643 of 2011** SC.156/2011 OF IV ADDL. DISTRICT COURT, ERNAKULAM PETITIONER: ACCUSED NO.7 -------------------------------- UMMER FAROOQ @ FAROOQ MUNNOOR, AGED 29 YEARS, S/O. LATE ABBAS, PACHAMBALA HOUSE, ECHALAMCODE POST, KUBANNUR VILLAGE, MANGALPADY VIA, KASARAGOD. BY ADV. SRI.C.ANILKUMAR (KALEESSERIL) SRI.C.Y.VINOD KUMAR RESPONDENT: COMPLAINANT -------------------------- CENTRAL BUREAU OF INVESTIGATION, REPRESENTED BY THE SPECIAL PROSECUTOR, CBI, ERNAKULAM. STANDING COUNSEL FOR CBI SRI.P.CHANDRASEKHARAN PILLAI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22/07/2011, ALONGWITH B.A.NO.5844 OF 2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **K.T.SANKARAN, J.** ## **-----------------------------------------------------Bail Appl. NOS.5643 & 5844 OF 2011 -----------------------------------------------------Dated this the 22[nd] day of July, 2011** ## **O R D E R** Bail Application No.5643 of 2011 is filed by Ummer Farooq @ Farooq Munnoor, accused No.7 in Sessions Case No.156 of 2011, on the file of the Court of the IV Additional Sessions Judge, Ernakulam. Bail Application No.5844 of 2011 is filed by Shadeer.P. @ Shadeer, accused No.14 in S.C.No.156 of 2011. 2. The offences alleged against the accused are under Sections 120B, 143, 147, 148, 341, 302, 201 and 212, read with Section 149 of the Indian Penal Code. 3. The case was originally investigated by the local police after registering the case as Crime No.213 of 2009 of Badiadka Police Station. Later, as per the order in a Writ Petition filed by the father of the victim, the investigation of the case was handed over to the Central Bureau of Investigation, which registered the crime as RC-34/2010(S) 0010 CBI/TVPM. BAIL APPLICATION NOS.5643 AND 5844 OF 2011 :: 2 :: 4. Accused No.7 was arrested on 31.8.2010 and accused No.14 was arrested on 3.10.2010, after the investigation of the case was taken over by the CBI. 5. Various applications were filed by different accused except accused No.7 before this Court for bail. Those applications were dismissed as per the order dated 9.11.2010 ( **Abdulla Kunhi and others** v. **C.B.I.** 2010 (4) KHC 626) and the order dated 6.1.2011. 6. The prosecution case in a nutshell is the following: On 3.11.2009 at 10.30 P.M., while the deceased Jabbar was travelling with his friend from Kasaragod to Perla in a car, they were intercepted by accused Nos.1 to 4 and certain other accused who came in a Santro Car. The accused hit the Santro car against the car being driven by Jabbar. The accused persons attacked the deceased with deadly weapons like swords, iron rods, chopper, axe, knife etc. It is alleged that some of the accused persons were hired goondas from the neighbouring State. The deceased sustained 25 bleeding injuries. He succumbed to the injuries. It is alleged that the deceased belonged to a particular BAIL APPLICATION NOS.5643 AND 5844 OF 2011 :: 3 :: political party and he was murdered at the instance of the members of rival political party. 7. This Court had occasion to notice that when investigation was conducted by the state police, investigation was not properly being conducted due to the intervention by the ruling political party and the real accused who were involved in the case were not made accused or apprehended. The father of the victim had to approach this Court in W.P.(C) No.2797 of 2010 pointing out the inaction on the part of the state police and requesting to entrust the investigation of the case to CBI. On being satisfied that the investigation was not being made in the proper line, this Court was pleased to entrust the investigation with CBI. The petitioners in these Bail Applications were arrested after the CBI took over the investigation. 8. Even after the investigation was taken over by CBI, it was noticed by this Court in a Bail Application that the State Government had withdrawn even the vehicles given to CBI on flimsy grounds. This Court had to intervene in the matter to see that the investigation was expedited. BAIL APPLICATION NOS.5643 AND 5844 OF 2011 :: 4 :: 9. Finally, the charge sheet was filed and after committal, the case is now numbered as Sessions Case No.156 of 2011. 10. Even after the charge sheet was filed, Bail Applications were filed before this Court by many of the accused. Those Bail Applications were dismissed as per the order dated 9.11.2010 ( **Abdulla Kunhi and others** v. **C.B.I.** (2010 (4) KHC 626)). Even thereafter, Bail Applications were filed and those Bail Applications were disposed of as per the order dated 6.1.2011, wherein it was held thus: “5. Eventhough the learned counsel appearing for the petitioners fervently pleaded for the release of the petitioners in the light of the fact that the final report has already been laid before the committal Court, I am not inclined to accede to the said plea. It was after the filing of the final report that this Court on 9.11.2010 dismissed similar applications for bail filed by the petitioners. The common order passed by this Court is reported in **Abdulla Kunhi and others v. C.B.I. - 2010 (4) KFC 626** . Detailed reasons have been given in the said order as to why the petitioners cannot be released on bail before the conclusion of trial of the case. I do not find any good reason to differ from the reasons stated and conclusions reached while BAIL APPLICATION NOS.5643 AND 5844 OF 2011 :: 5 :: disposing of the earlier bail applications. In fact, the learned counsel appearing for the father of deceased Jabbar brought to my notice the complaints filed before the local police by three of the important witnesses by name Radhakrishna Naik, Abdul Harif and Subair Ahmmed alleging that they received threatening calls to the effect that if they gave evidence in support of the prosecution they will also meet with the same fate as Jabbar. In the light of these supervening circumstances and once again taking note of the observations of the Apex Court in **Shahzad Hasan Khan v. Ishtiaqu Hasan Khan and Another - 1987 SCC - (Crl) 415, Kalyan Chandra Sarkar v. Rajesh Ranjan - (2004) 7 SCC 528 and Masroor v. State of U.P. (2009) 14 SCC 286** , I am not inclined to order release of the petitioners on bail. If released on bail before the trial of the case the petitioners will definitely influence and intimidate the prosecution witnesses and will also make themselves scarce as is apprehended by the prosecution. **These** ” **applications are accordingly dismissed** . 11. The petitioner in B.A.No.5844 of 2011 has filed this Bail Application mainly with the following averments: “The marriage of the petitioner's sister is scheduled to be conducted on 24.07.2011. One of the wedding letter is produced herewith and marked as Annexure A4. This BAIL APPLICATION NOS.5643 AND 5844 OF 2011 :: 6 :: application for bail is filing by the petitioner to get an opportunity to participate in the marriage ceremony of his sister to be held on 24.07.2011.” 12. During the course of arguments on 21.7.2011, the Court expressed the view that accused No.14 can be permitted to participate in the wedding of his sister on 24.7.2011, of course with sufficient police surveillance and guard. The learned counsel for accused No.14 prayed for a day's time to get instructions in the matter. Today, the learned counsel submitted that accused No.14 does not wish to attend the marriage with a band of policemen around him. 13. Learned counsel for accused No.7 submitted that the said accused has not filed any application for bail before this Court earlier in point of time. To a query as to why he did not file an application for bail, the learned counsel submitted that probably he did not do so since the Bail Applications submitted by the other accused were dismissed by this Court on various grounds. Whether the accused has filed an application for bail earlier in point of time or whether he is filing a Bail Application for the first time may not as such be relevant in considering whether bail should be granted. BAIL APPLICATION NOS.5643 AND 5844 OF 2011 :: 7 :: 14. Learned counsel appearing for the petitioners submitted that accused Nos.1 to 4, who are the main accused, were granted bail and they are free now. The petitioners and some other accused were denied bail by the Court as per the orders in various Bail Applications. The counsel submitted that when the main accused are on bail, there is no point in detaining the others indefinitely. Learned counsel appearing for CBI pointed out that some of the accused were granted bail before the investigation was taken over by CBI and when the matters were not presented in the manner in which it should have been presented before Court. It is submitted that the whole investigation was being attempted to be sabotaged at the instance of the police and it cannot be expected that the Bail Applications would have been objected to by the State at that time. Learned counsel for CBI submitted that grant of bail to some of the accused is not at all relevant in considering the Bail Application of these petitioners at this juncture and particularly when more details have been furnished and more particulars are available. 15. This Court dismissed the applications for bail of several of the accused. Even after the charge sheet was filed, it was held that it was BAIL APPLICATION NOS.5643 AND 5844 OF 2011 :: 8 :: not feasible to release the accused on bail till the culmination of the trial and disposal of the case. I do not find any change of circumstance warranting a different view to be taken. I am satisfied that if the petitioners are released on bail, there is every likelihood of the witnesses being influenced or intimidated or the evidence being tampered with. It is also likely that the petitioners may make themselves scarce and flee from justice. For the aforesaid reasons, the Bail Applications are dismissed. **(K.T.SANKARAN) Judge** ahz/