## `IN THE HIGH COURT OF KERALA AT ERNAKULAM`
## `PRESENT`
## `THE HONOURABLE MR.JUSTICE C.S.DIAS`
```
WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946
```
```
BAIL APPL. NO. 4388 OF 2024
```
```
CRIME NO.39/1995 OF MAVELIKKARA POLICE STATION, ALAPPUZHA
```
## `PETITIONER:`
```
SREEKUMAR,
AGED 44 YEARS
MADASSERIL CHIRAYIL,PELA MURI,
KANNAMANGALAM VILLAGE, PIN – 690106
```
```
BY ADVS.SHERLY MOL THOMAS
DERENE GONSALVEZ
```
## `RESPONDENT:`
```
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN – 682031
```
## `OTHER PRESENT:`
```
SR PP SRI C S HRITHWIK
```
```
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
24.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
```
_B.A.No.4388/2024_
_-:2:-_
_Dated this the 24[th] day of July, 2024_
## **O R D E R**
The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the second accused in Crime No.39/1995 of the Mavelikkara Police Station, Alappuzha, which is registered against the accused for allegedly committing the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860. The petitioner was arrested and remanded to on judicial custody 11.07.2023.
2. The essence of the prosecution case is that: on 19.01.1995, at around 23.00 hours, the accused, in furtherance of their common intention, and out of their previous animosity towards one Jayapraksh (deceased), had attacked him with sticks and beat him on his navel
_B.A.No.4388/2024_
_-:3:-_
portion and severely manhandled him, and he succumbed to his injuries on 07.02.1995, after undergoing treatment at the Medical College Hospital, Ernakulam. Thus, the accused have committed the above offences. The prosecution further alleges that, even though the petitioner had got himself enlarged on bail at the crime stage, he subsequently absconded. The case was split up and the case against him was transferred and numbered as L.P.No.38/2021. Subsequently, a Special Investigating Team was constituted, and the accused was arrested from Kozhikode, on 09.07.2023, i.e., after a long period of 27 years. It is only because the petitioner had absconded, the trial in the case, as against the petitioner, has got protracted.
3. Heard; Smt.Sherly Mol Thomas, the learned counsel appearing for the petitioner and Sri. C. S.
_B.A.No.4388/2024_
_-:4:-_
Hrithwik, the learned Senior Public Prosecutor.
4. The learned counsel for the petitioner vehemently argued that the petitioner is totally innocent of the accusations levelled against him. The accused Nos.2 & 3 have withstood the trial and have been acquitted by the Trial Court. There is no material to substantiate that the petitioner has committed the offence. The petitioner is confident that he would also be acquitted. It is only because the petitioner did not receive any summons from the Trial Court, that he did not appear before the said court. The petitioner has not deliberately absconded, as alleged by the prosecution. The learned counsel relied on the decision of the Hon'ble Supreme Court in **Matru Alias Girish Chandra v. The State of Uttar Pradesh** [(1971) 2 SCC 75] to fortify her contention that the subsequent conduct of the accused in absconding does not by itself
_B.A.No.4388/2024_
_-:5:-_
necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and evade arrest when wrongly suspected of a grave crime. She submitted that the petitioner has been in judicial custody for the last more than one year, and trial in the case has not commenced. Therefore, the petitioner may be enlarged on bail.
5. The learned Public Prosecutor seriously opposed the application. He submitted that, it is after a relentless effort that was made by the Special Investigating Team that the petitioner was traced out from a hideout in Kozhikode. The petitioner was absconding for nearly the last 29 years. It is due to the petitioner’s deliberate misdeeds that a sessions case has got procrastinated. If the petitioner is enlarged on bail, undoubtedly he would abscond again and the trial in the case would get indefinitely protracted. Since the
_B.A.No.4388/2024_
_-:6:-_
accusation against the petitioner is grave and serious, a lenient view may not be taken in the matter Moreover, it would send a wrong message to the society. The decision in **Matru Alias Girish Chandra** ’s case (supra) has no application to the facts of the case on hand because the petitioner was absconding for nearly three decades. Therefore, the application may be dismissed.
6. The prosecution allegation against the petitioner is that he, along with accused Nos.1 & 3, had committed the murder of on Jayaprakash 19.01.1995. The materials on record show that even though the petitioner had got himself enlarged on bail at the crime stage, he, thereafter, did not bother to appear before the Trial Court. Consequently, the case against him was split up and transferred to the Long Pending Register. Indisputably, the petitioner was arrested only on 11.07.2023.
_B.A.No.4388/2024_
_-:7:-_
7. The petitioner had filed a similar application before the Trial Court `,` which was dismissed by Annexure-A2 order on the specific finding that the petitioner was apprehended nearly after three decades, and if he is enlarged on bail, there is every likelihood of him absconding again.
8. When the application came up for consideration on 17.07.2024, this Court had called for a report from the Trial Court to ascertain the status and the reasonable time period that would be required to dispose of S.C.No.984/2023.
9. Pursuant to the said order, the learned Sessions Judge, by communication dated 23.07.2024, has informed this Court that S.C.No.984/2023, which is the case now registered against the petitioner, stands posted to 09.08.2024 for framing of charge. Since the present case is actually of the year 1995, there may be delay in procuring the witnesses in the crime.
_B.A.No.4388/2024_
_-:8:-_
Nonetheless, the Trial Court would make every endeavour to dispose of S.C.No.984/2023 by 30.11.2024.
10. The crime is of the year 1995. The petitioner allegedly absconded, and it is after nearly three decades that he was apprehended on 11.07.2023. The apprehension projected by the prosecution that if the petitioner is released on bail, there is every likelihood of him absconding again, is justifiable and reasonable. Due to the sheer laches and absconsion of the petitioner, a sessions case has been protracted for three decades. The petitioner cannot take advantage of his own wrong after fleeing from justice. Already the State has spent public money to trace out and arrest the petitioner after constituting a Special Investigating Team; the said exercise cannot be repeated at the whims and caprice of the petitioner. I do not find any bona fides in the plea put forth by the
_B.A.No.4388/2024_
_-:9:-_
petitioner to enlarge him on bail due to his antecedents. Therefore, I hold that it is not a fit case to enlarge the petitioner on bail because there is every likelihood of justice being torpedoed. Nonetheless, taking into account the report of the Trial Court, the Trial Court is directed to consider and dispose of S.C.No.984/2023, in accordance with law, as expeditiously as possible, at any rate, on or before 30.11.2024, keeping in mind that the petitioner is facing custodial trial.
Resultantly, the application is dismissed.
Sd/-
## **C.S.DIAS,JUDGE**
DST/24.07.24
//True copy// P.A. To Judge
