Kerala High Court
Sanjeev Kumar Thiwari vs State Of Kerala on 8 November, 2024
Author: C.S.Dias
Bench: C.S.Dias
2024:KER:83235
B.A.No.7415 of 2024 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 8TH DAY OF NOVEMBER 2024 / 17TH KARTHIKA, 1946
BAIL APPL. NO. 7415 OF 2024
CRIME NO.751/2014 OF Perumbavoor Police Station, Ernakulam
AGAINST THE ORDER/JUDGMENT DATED 23.08.2024 IN SC
NO.378 OF 2017 OF ADDITIONAL DISTRICT & SESSIONS
COURT,MUVATTUPUZHA
PETITIONER/S:
SANJEEV KUMAR THIWARI,
AGED 46 YEARS
NEAR KHALIHASTHAN MANDIR, RAGHAPUR POST, GOSPUR
VILLAGE, SUPON DISTRICT, BIHAR., PIN - 852215
BY ADV SHIBU VARGHESE
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, PIN - 682031
2 THE STATION HOUSE OFFICER,
PERUMBAVOOR POLICE STATION, PERUMBAVOOR, ERNAKULAM
DISTRICT., PIN - 683542
BY SR.P.P.SMT.PUSHPALATHA.M.K.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
08.11.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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B.A.No.7415 of 2024 2
Dated this the 8th day of November, 2024
ORDER
This application is filed under Section 483 of the
Bharatiya Nagarik Suraksha Sanhita, 2023, by the
second accused in Crime No. 751/2014 of the
Perumbavoor Police Station, which is registered against
two accused persons for allegedly committing the
offences punishable under Sections 302, 201, 202, and
212 of the Indian Penal Code. The petitioner was
originally arrested on 03.03.2014 and he was enlarged
on bail on 14.03.2014. However, during the committal
stage, the petitioner had absconded. Thereafter, the
petitioner was re-arrested on 08.08.2024, and remanded
to judicial custody.
2. The essence of the prosecution case is that: on
20.02.2014, at around 2:30 hours, the first accused
committed the murder of one Mukesh. Thereafter, the
first accused caused the disappearance of evidence by
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throwing his clothes into the river. The second accused,
who is also a native of Bihar like the first accused, who
had the knowledge that the first accused had committed
the above crime, intentionally omitted to give the
information regarding the commission of the offences to
the police, and he harboured the first accused. Thus, the
second accused has committed the offences under
Sections 202 and 212 of the IPC.
3. Heard; Sri. Shibu Varghese., the learned
counsel appearing for the petitioner and Smt.
Pushpalatha.M.K, the learned Special Public Prosecutor.
4. The learned counsel for the petitioner
submitted that the petitioner is totally innocent of the
accusations levelled against him. The Investigating
Officer has deliberately implicated the petitioner as an
accused in the crime. There is no material to
substantiate the petitioner's culpability in the crime. The
crime is of the year 2014. The petitioner was initially
remanded to judicial custody and was enlarged on bail
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on 14.03.2014. Although the petitioner cooperated with
the investigation and diligently appeared before the Trial
Court, the first accused had absconded. Therefore, the
case was being adjourned from time to time. Due to the
circumstances beyond the control of the petitioner, he
had to visit his native place. Even though the petitioner
had entrusted the matter to his counsel, the case was not
adjourned on his behalf. Consequently, the petitioner's
bail bond was forfeited, and a non-bailable warrant was
issued against him. It is only when the petitioner
returned back to Kerala, that he came to learn that a
non-bailable warrant was issued against him, and the
petitioner was arrested on 08.08.2024. The petitioner
has been in judicial custody for the last four months. The
first accused has been arrested only recently. There is no
likelihood of the trial commencing in the near future. The
petitioner is willing to abide by any stringent condition
that may be imposed by this Court. The petitioner's close
relatives, Smt. Premadevi and her husband, Surendra
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Tivari, who have roots in the State of Kerala, and who
are the owners of the property covered by Annexure A8,
have volunteered to stand as the petitioner's sureties.
The petitioner will participate in the trial and will not
leave the jurisdiction of the Trial Court. Hence, the
application may be allowed.
5. The learned Public Prosecutor seriously
opposed the application. She submitted that it is after a
great effort made by the Investigating Officer that the
petitioner was arrested from the State of Bihar. The
petitioner was absconding for more than two years. The
petitioner does not have roots in the State of Kerala. If
the petitioner is enlarged bail, there is every likelihood of
him fleeing from justice and the trial in S.C.No.378/2017
getting further procrastinated. Therefore, the application
may be dismissed.
6. When the application came up for
consideration on 27.09.2024, this Court had called for a
report from the Court of the Additional Sessions Judge
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(the Trial Court), Muvattupuzha, to ascertain the status
and reasonable time period required to dispose of
S.C.No.378/2017, which is now said to be numbered as
S.C.No.1105/2017, which arises out of the present crime.
7. Pursuant to the said order, the Trial Court, by
communication dated 01.10.2024, has informed this
Court that the case was originally numbered as
S.C.No.378/2017, and is now numbered as
S.C.No.1105/2017. Both the two accused persons are
arrested and are in judicial custody. There are 27
witnesses cited by the prosecution. CWs 2 CW3, CW6,
and CW7 hail from the State of Bihar, Cws 4 and CW5
hail from Nepal and Cw8 hails from New Delhi.
Considering the volume of the matter, the Trial Court
requires at least seven months' time to complete the trial
in S.C. No. 1105/2017.
8. The prosecution allegation against the
petitioner is that, he had deliberately concealed the
information regarding the murder committed by the first
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accused and also he harboured the first accused.
Accordingly, the petitioner has committed the offences
punishable under Sections 202 and 212 of the IPC.
9. On perusal of the materials placed on record,
it is seen that the petitioner was originally arrested on
03.03.2014. Subsequently, on 14.03.2014, he was
enlarged on bail by the jurisdictional Magistrate. The
first accused had absconded and the case against him
was split up. The case was committed and numbered as
S.C. No. 378/2017. It is alleged that the petitioner
absconded and his bail bond was forfeited on
25.08.2022.
10. The case of the petitioner is that, he
cooperated with the investigation and was diligently
prosecuting the proceedings, but the case was being
adjourned from time to time from 2014 to 2022. Due to
the unavoidable circumstances the petitioner had to visit
his native place. Even though the matter was entrusted
to his counsel, the counsel failed to represent the
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petitioner. Consequently, the petitioner's bail bond was
forfeited. When the petitioner returned back to Kerala,
he was arrested and remanded to judicial custody. The
fact remains that the petitioner has been in judicial
custody since 08.08.2024.
11. It is well settled in Hussainara Khatoon (I)
v. Home Secy., State of Bihar [(1980) 1 SCC 81] by the
Hon'ble Supreme Court that merely because an accused
does not have roots in a particular state, the same shall
not be treated as a ground to deny bail to the accused;
instead, the court shall include sufficient safeguards in
the bail order to ensure that the accused is available for
trial.
12. The petitioner has produced Annexure A8
title deeds of his close relatives, who are natives of the
State of Kerala. He states that the owners of the
property covered by Annexure A8 are willing to stand as
his sureties. The petitioner will not leave the territorial
jurisdiction of the Trial Court till the completion of the
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trial.
13. On a consideration of the law laid down in
Hussainara Khatoon's case (supra) and the solemn
undertaking made by the petitioner before this Court
that, he would participate with the trial, and his close
relatives, who are natives of the Kerala, are willing to
stand as his sureties, and especially taking note of the
fact that the petitioner has been in judicial custody for
the last three months, there is no likelihood of the trial
commencing in the near future and the petitioner does
not have any criminal antecedents, and further he is only
alleged to have committed the offences under Sections
202, 212 of the IPC, I am of the firm view that petitioner
is to be enlarged on bail by stringent conditions.
14. On an anxious consideration of the facts, the
rival submissions made across the Bar, the materials
placed on record, and for the reasons already mentioned
above, I am inclined to allow the bail application.
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In the result, the application is allowed by
directing the petitioner to be released on bail on him
executing a bond for Rs. 2,00,000/- (Rupees two Lakh
only) with two solvent sureties, who shall be the owners
of the property covered by the Annexure A8 title deed
and as volunteered by the petitioner, each for the like
sum, to the satisfaction of the Trial Court, which shall be
subject to the following conditions:
(i) The petitioner shall appear before the
Trial Court on all posting dates unless his
presence is dispensed by the Trial Court;
(ii) The petitioner shall not directly or
indirectly make any inducement, threat or
procure to any person acquainted with the facts
of the case so as to dissuade him from disclosing
such facts to the court or to any Police Officer or
tamper with the evidence in any manner,
whatsoever;
(iii) The petitioner shall not commit any
offence while he is on bail;
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(iv) The petitioner shall surrender his
passport, if any, before the jurisdictional court at
the time of execution of the bond. If he has no
passport, he shall file an affidavit to the effect
before the jurisdictional court on the date of
execution of the bond;
(v) The petitioner shall not leave the
territorial jurisdiction of the Trial Court, without
its previous permission.
(vi) The petitioner shall furnish his
present and permanent addresses, and his
mobile phone number with his Aadhaar card
before the Trial Court;
(vii) In case of violation of any of the
conditions mentioned above, the Trial Court shall
be empowered to consider the application for
cancellation of bail, if any filed, and pass orders
on the same, in accordance with law.
(vii) Applications for deletion/modification
of the bail conditions shall be moved and
entertained by the Trial court.
(viii) Needless to mention, it would be well
within the powers of the Investigating Officer to
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investigate the matter and, if necessary, to effect
recoveries on the information, if any, given by the
petitioner even while the petitioner is on bail as
laid down by the Hon'ble Supreme Court in
Sushila Aggarwal v. State (NCT of Delhi) and
another [2020 (1) KHC 663].
mtk/08.11.24 Sd/-C.S.DIAS, JUDGE
2024:KER:83235
APPENDIX OF BAIL APPL. 7415/2024
PETITIONER ANNEXURES
Annexure A1 THE COPY OF THE SCREEN SHOT OF THE E-
COURT PROCEEDINGS OF THE TRIAL COURT IN
SC 378/2017 FOR THE DATE 16.12.2020
Annexure A2 THE AFFIDAVIT SWORN BY THE RELATIVE OF
THE PETITIONER/2ND ACCUSED DATED
03.09.2024
Annexure A3 THE FREE COPY OF THE ORDER IN CRL.M.P 281
/2024 IN SC 378/2017 BEFORE HONOURABLE
ADDITIONAL SESSIONS COURT MUAVATTUPUZHA
Annexure A4 TRUE COPY OF THE WITNESS LIST IN SC
378/2017 ON THE FILE OF THE HONOURABLE
ADDITIONAL SESSIONS COURT MUVATTUPUZHA
Annexure A5 THE STATEMENT UNDER SECTION 161 OF
CR.P.C. OF CW3 IN SC 378/2017 ON THE FILE
OF THE HONOURABLE ADDITIONAL SESSIONS
COURT MUVATTUPUZHA DATED 04.03.2016
Annexure A6 THE STATEMENT UNDER SECTION 161 OF
CR.P.C. OF CW4 IN SC 378/2017 ON THE FILE
OF THE HONOURABLE ADDITIONAL SESSIONS
COURT MUVATTUPUZHA DATED 21.02.2014
Annexure A7 THE STATEMENT UNDER SECTION 161 OF
CR.P.C. OF CW5 IN SC 378/2017 ON THE FILE
OF THE HONOURABLE ADDITIONAL SESSIONS
COURT MUVATTUPUZHA DATED 22.02.2014
Annexure A8 TRUE COPY OF THE TITLE DEED NO.692/19 OF
THE PROPERTY BELONGING TO THE
PETITIONER'S RELATIVE IN KERALA DATED
22.02.2019
