Ezhil Raja, Sekhar and Selvan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 1ST DAY OF APRIL 2014/11TH CHAITHRA, 1936** ## **CRL.MC.NO. 1696 OF 2014 (B)** **--------------------------------------[CRL.M.C. NO.359/2013 OF THE SESSIONS COURT, ERNAKULAM DTD. 08/03/2013, CRIME NO. 1481/2012 OF ERNAKULAM TOWN SOUTH POLICE STATION]** **............** ## **PETITIONERS/ACCUSED NOS.2, 3 & 5:** **-------------------------------------------------------** **1. EZHIL RAJA, AGED 42 YEARS, S/O.CHAKRAVARTHI, KILAKKU THERVU, KATTANDI KUPPAM, KADAMPULIOOR POST, CUDDALORE DIST., THAMILNADU.** **2. SEKHAR, AGED 30 YEARS, S/O.SABHANAYAGAR, MERKU THERVU, KADAMPULIOOR POST, CUDDALORE DIST., THAMILNADU.** **3. SELVAN, AGED 22 YEARS,** **S/O.EZHUMALAI, MERKU THERVU, KATTANDI KUPPAM, KADAMPULIOOR POST, CUDDALORE DIST., THAMILNADU.** **BY ADV. SRI.M.J.SANTHOSH.** ## **RESPONDENT/RESPONDENT:** **-------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PANANGAD POLICE STATION, REPRESENTED BY GOVERNMENT PLEADER, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SMT. S. HYMA.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01-04-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.1696/2014-B:** ## **APPENDIX** ## **PETITIONERS' ANNEXURE:** **ANNEXURE A1: THE COPY OF COMMON ORDER IN CRL.M.C.NO. 359/2013 AND CRL.M.C. NO.435/2013 OF SESSIONS JUDGE, ERNAKULAM DATED 8/3/2013.** ## **RESPONDENT'S ANNEXURES: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** K.RAMAKRISHNAN, J. ----------------------------------------------------------------Crl. M.C. No.1696 of 2014 -----------------------------------------------------------------Dated this the 1[st] day of April, 2014 ## O R D E R This criminal miscellaneous case is filed by the petitioners in Crl.M.C.No.359/2013 of the Sessions Court, Ernakulam, to modify the condition imposed by the court below while granting bail under Section 482 of the Code of Criminal Procedure (hereinafter called the ‘Code’). 2. It is alleged in the petition that, the petitioners are accused Nos. 2, 3 and 5 in Crime No.1481/2012 of Ernakulam Town South Police Station, alleging commission of offences under Section 449, 395, 461 and Section 302 of the Indian Penal Code. The case was registered against five accused persons, including the petitioners. They were arrested on 04.12.2012 and they were in custody from that day onwards. Thereafter, they filed application for statutory bail under Section 167(2) of 2 Crl. M.C. No.1696 of 2014 the ‘Code’ as Crl.M.C.No.359/2013 and that petition was disposed of by the learned Sessions Judge, Ernakulam, along with Crl.M.C.No.435/2013 by a common order dated 08.03.2013 with conditions, inter alia that, the petitioners shall execute a bond for 50,000/- each, with two solvent₹ sureties of Ernakulam Revenue District having landed properties in the district and they shall not leave this revenue district and also to produce solvency certificate to the extent of 50,000/- and these conditions are being₹ challenged by the petitioner by filing this application. 3. Heard the learned counsel for the petitioners and learned Public Prosecutor. 4. The learned counsel for the petitioners submitted that, in view of that condition, they were not able to get sureties and if some relaxation is made, and if they are permitted to get sureties from any part of Kerala, thus they may be able to procure sureties and also insisting for solvency certificate is also not legal. Crl. M.C. No.1696 of 2014 3 5. The application was opposed by the learned Public Prosecutor on the ground that, if bail condition is relaxed, they will not be available for trial. 6. It is an admitted fact that, the petitioners along with others were arrayed as accused in Crime No.1481/2012 of Ernakulam Town South Police Station, alleging offences under Section 395, 461 and 302 of the Indian Penal Code and they were arrested on 04.12.2013 and from that date on wards they are in jail. It is also an admitted fact that, all the accused persons in the case filed bail applications as Crl.M.C.No.359/2013 and 435/2013 ,for granting statutory bail under Section 167(2) of the ‘Code’ and the learned Sessions Judge by Annexure-A1 impugned common order, allowed the applications, granted bail to them imposing conditions inter alia that, the accused persons shall produce sureties having landed property with solvency certificate for 50,000/- from the revenue district₹ of Ernakulam alone. Other condition imposed was that, they Crl. M.C. No.1696 of 2014 4 should not leave the revenue district, after release without the previous permission of the committal court or the trial court, till the trial of the case is over. As regards the 2[nd] condition is concerned, considering the fact that, the petitioners are not belonging to this area, that condition is required for procuring their presence, during investigation and also ultimately if the final report is filed for the purpose of trial as well. So I am not inclined to modify that condition. 7. As regards the first condition is concerned, there is some force in the submission made by the counsel for the petitioners. It is true that, the courts are entitled to impose conditions, while granting bail, but should not be of such a nature of non-compliance by the accused persons, as that will amount to denial of bail as well, especially when the Sessions court has found that, they are entitled to get statutory bail under Section 167(2) of the ‘Code’. Being persons from outside Kerala, it will be very difficult to get Crl. M.C. No.1696 of 2014 5 sureties for them from the revenue district of Ernakulam itself. Further this court in **2014(1) KHC 623 Madhu K. v. State of Kerala** relying on the decision reported in **2010 (4) KLT 405 Syamkumar v. State of Kerala** has held that, insisting of the production of solvency certificate and also imposing conditions, which should not be complied with, will amount to denial of bail. So insisting for solvency certificate, of a person from the revenue district of Ernakulam as surety by a person who does not belong to that area will really amount denial of bail for him and it is impossible for him to comply with. So the condition, directing the petitioner to produce solvency certificate of the surety is liable to be set aside. Similarly, instead of insisting the petitioner to produce sureties from Ernakulam district, directing the petitioner to produce sureties from anywhere in Kerala, will be sufficient and that will meet the ends of justice. So the condition imposed by the court below, which is being challenged is modified as follows: Crl. M.C. No.1696 of 2014 6 The petitioners are directed to execute a bond for 50,000/- with solvent sureties for the₹ like sum each, from State of Kerala to the satisfaction of the 2[nd] Additional Sessions Court, Ernakulam,. With the above modification and observation, the petition is disposed of. Office is directed to communicate this order to the concerned court, immediately. _Sd/-_ K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss