P. Mohanan @ Mohanan Master v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** ## **MONDAY, THE 17TH DAY OF DECEMBER 2012/26TH AGRAHAYANA 1934** ## **Bail Appl..No. 8954 of 2012 ()** **-----------------------------(CRIME NO. 433/2012 OF VATAKARA POLICE STATION, KOZHIKODE DISTRICT)** **PETITIOENR/ACCUSED NO.14 :** **------------------------------------------** **P.MOHANAN @ MOHANAN MASTER, AGED 58 YEARS SON OF RAMAN, POOKKOOTTU HOUSE, VATTOLI POST KAKKATTIL, KOZHIKODE DISTRICT.** **BY ADVS.SRI.M.K.DAMODARAN (SR.) SRI.ALAN PAPALI SRI.SOJAN MICHEAL SRI.GILBERT GEORGE CORREYA** **RESPONDENT/COMPLAINANT :** **-------------------------------------------** **STATE OF KERALA (CRIME NO.433/2012 OF VATAKARA POLICE STATION - DEPUTY SUPERINTENDENT OF POLICE S.I.T), REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.** **BY SPECIAL PUBLIC PROSECUTOR SRI. C.K. SREEDHARAN** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11/12/2012, THE COURT ON 17-12-2012 PASSED THE FOLLOWING:** **BP** ## **P. BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - B.A. No. 8954 of 2012 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of December, 2012. ## **ORDER** The petitioner, who is accused No.14 in Crime No.433 of 2012 of Vatakara Police Station, cognizance of which has been taken by the court concerned and is pending as S.C. No.867 of 2012 has again approached this court seeking bail. Quite a few attempts made earlier met with failure. 2. The petitioner would point out that the main allegation against him is that he along with some of the other accused hatched a conspiracy on 2.4.2012 at 3.15 p.m. at the flower shop of one of the accused. In order to establish the above fact, the prosecution mainly relies on the statement of C.Ws.166 and 167. It is pointed out that apart from the insufficiency of the evidence to fasten liability on the petitioner, the petitioner has now produced materials to show that at the relevant time he was B.A.8954/2012. 2 elsewhere and was attending a function which would belie the prosecution allegation. The petitioner has produced Annexures I to IV to show that at the relevant time he was attending a function where a Deepasikha was handed over to him and he was attending meetings at several places. The petitioner would point out that it is true that this court had on earlier occasions dismissed his application for bail and has observed that the trial may be expedited. There are about 284 witnesses cited by the prosecution and voluminous documents are relied on by the prosecution so that it is unlikely that the trial will be over in the near future. If ultimately it is found that the petitioner is innocent, he would have undergone pre-trial detention without any justification. 3. Learned counsel appearing for the petitioner would point out that the materials against the petitioner is too thin and brittle and is insufficient to deny him bail. In fact according to the learned counsel, the two statements B.A.8954/2012. 3 relied on by the prosecution cannot be used to cast liability on him as it does not link the conspiracy said to have been hatched by him and others. Learned Senior Counsel also pointed out that bail is the rule and jail is an exception. Applying the accepted tests for granting bail, it is pointed out that there is no reason to reject bail to the petitioner. Being a responsible person and holder of a senior post in a political party, it is unlikely that he will abscond and will not be available for trial. Learned Senior Counsel went on to point out that denial of bail and incarceration for an unlimited period amounts to violation of Article 21 of the Constitution of India. In support of this, learned Senior Counsel relied on the decision reported in **Sanjay Chandra v. C.B.I.** ((2012) 1 SCC 40). 4. Learned Special Public Prosecutor Shri. C.K.Sreedharan very vehemently opposed the petition by pointing out that there are no change of circumstance pointed out by the petitioner compelling this court to take a B.A.8954/2012. 4 different view than the views taken earlier. Learned counsel pointed out that it is wrong to say that the prosecution relies on the evidence of only two witnesses to prove the conspiracy. There is a host of materials which would show that the petitioner is actively involved and was the main conspirator and the perpetrator of the crime. In fact in the earlier bail application, this court had occasion to consider all these aspects and found the contentions raised by the petitioner to be untenable and also found that there are sufficient materials as against him for putting him on trial. This court also considered the gravity and severity of the crime, the social impact and the consequences of the petitioner being released on bail. The situations and circumstances which persuaded this court to decline bail to the petitioner continue to exist and the petitioner may not be granted bail. 5. The petitioner had on several occasions approached this court for bail. On all those occasions, this B.A.8954/2012. 5 court had occasion to refer to the various materials available against the petitioner and also found that it may not be proper to release the petitioner on bail considering the facts and circumstances of the case. What is now attempted is to show on the basis of Annexures I to IV that the petitioner was attending another function at the relevant time far away from the place where the conspiracy is said to have been hatched, and if that be so, the whole prosecution case against the petitioner must fall to the ground. 6. It is true that the petitioner has produced Annexures I to IV which are certain photographs and notices which would show that the petitioner has attended some functions. Considerable reliance is placed on Annexure IV wherein the time table of the functions at the various places is given in detail. It is relying on this item of material that the petitioner would contend that his presence B.A.8954/2012. 6 in the so-called place of conspiracy on the same date cannot be accepted. 7. First of all, these materials were available earlier also, but for reasons best known to the petitioner, he chose not to produce the same. As rightly noticed by the learned Special Public Prosecutor, what is now raised is a plea of alibi, which is not a matter to be considered at this point of time. Learned Special Public Prosecutor pointed out that the time shown in Annexure IV does not rule out the possibility of the petitioner being present at the place where the conspiracy is said to have been hatched because according to him, the distance between the place where the conspiracy was hatched and the place where the functions were held is very short. According to the learned Special Public Prosecutor, it hardly takes 5 minutes from the place where conspiracy is said to have been hatched to reach Onchiyam Rakthasakshi Square at 3.30 p.m. B.A.8954/2012. 7 8. The time given by the prosecution when the criminal conspiracy is said to have been hatched at the flower shop in which the petitioner and others were involved can only be approximate. It is not correct to say that the statements of C.Ws.166 and 167 alone are there to show the involvement of the petitioner. This court on an earlier occasion had considered the materials against the petitioner and had come to the conclusion that there are sufficient materials to show that the petitioner was an active conspirator and he had a major voice in the incident. This court had also on the materials available had occasion to observe that it was after getting confirmation from the petitioner that the party supported the conspiracy to do away with Shri. T.P. Chandrasekharan that the act was done. 9. In the decision relied on by the learned Senior Counsel for the petitioner, it is true that the purpose of custody has been highlighted. The decision also mentions B.A.8954/2012. 8 that unnecessary detention is deprecated. No doubt the decision says that the Code confers discretionary jurisdiction to criminal courts to grant bail to the petitioner, but it must be exercised with great care and caution by balancing the valuable right or liberty of an individual and the interests of the society in general. The decision also highlighted the fact that a man shall be considered innocent unless he is found guilty. In paragraphs 40 and 41 of the above decision it is stated as follows: “40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, B.A.8954/2012. 9 whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. 41. This court in Gurcharan Singh v. State (Delhi Admn.) observed that two paramount considerations, while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.” 10. One can have no quarrel with the proposition laid down in the above decision. But as already stated, this court on various occasions especially on the last occasion when the bail application of the petitioner and others was considered had in detail considered the available materials and held that the claim of the petitioner that the evidence against him is fragile cannot be accepted. Whether the B.A.8954/2012. 10 evidence is strong enough to mulct the petitioner with liability is a different question altogether. Apart from the statements of the two witnesses referred to by the petitioner, there are statements of other witnesses also which would show that the petitioner had a major role to play in the incident. As rightly pointed out by the learned Special Public Prosecutor Shri. C.K.Sreedharan that there was a strong motive for the petitioner and others to do away with Shri.T.P.Chandrasekharan when he had disassociated himself with the party of which the petitioner and others were members and had formed a party of his own and caused threat to the party of the petitioner and others. It is significant to note that in a Panchayat election the party led by late Shri.T.P.Chandrasekharan had occasion to defeat the candidate belonging to the party of which the petitioner and others were members. 11. This court had on an earlier occasion also referred to certain other matters which would indicate B.A.8954/2012. 11 that the petitioner had grudge against Shri.T.P.Chandrasekharan and the growth of Shri.T.P.Chandrasekhan was so enormous that the workers of the party of which the petitioner and others were members felt that the party of Shri.T.P.Chandrasekharan will cause complete threat to the very existence of the party itself. 12. After having considered the various aspects, especially Annexures I to IV now produced, based on which the contention is raised, the petitioner could not have been present at the place where the conspiracy is said to have hatched, it is felt that merely because the petitioner has produced Annexures I to IV, it does not lead to the conclusion that the prosecution case is false. The genuineness and veracity of Annexures I to IV is also to be established. The plea now taken is in the nature of alibi which as rightly pointed out by the learned Special Public Prosecutor does not arise for consideration now. So also, in B.A.8954/2012. 12 the light of the contention taken by the learned Special Public Prosecutor that the distance between the place where the conspiracy was hatched to the place where the programmes were held going by Annexure IV to the petition being very short, it cannot be said that the petitioner could not have been present at the place where the conspiracy is said to have been hatched. 13. This court is given to understand that the case is posted for framing charges. There is no reason to believe that the trial of the case will not be expedited. It is usual that even if 284 witnesses have been cited, the prosecution may not examine all of them and may confine to a fewer number of witnesses. This court while disposing of the earlier bail application had directed the court concerned to dispose of the case or on before 31.7.2013. This court is given to understand that trial court is making sincere attempt to comply with the said direction. There is no B.A.8954/2012. 13 reason to believe that the court below will not complete the trial as directed by this court. 14. On an earlier occasion, this court had also considered the fact that the petitioner is a powerful person in the party, who has got considerable influence in the area and if released on bail, he may influence the witnesses and may make the trial a mockery. That situation still continues. 15. In the light of the above facts and circumstances, it is felt that there is no change of circumstance warranting a view different from the earlier view taken in the case on hand. This application is without merits and it is accordingly dismissed. **P. BHAVADASAN, JUDGE** sb.