Tony Xavier vs State Of Kerala

Application for regular bail.

Petitioner is the 9th accused in Crime No. 993 of 2019 of Punnapra Police Station registered for the offences punishable under Sections 143, 147,

148, 323, 324, 326, 118, 302 and 201 read with Section 149 of the Indian Penal Code, now pending as S.C. No. 1 of 2020 before the Additional District

and Sessions Court-II, Alappuzha.

The prosecution allegation is that on 19.08.2019 one Manu @ Kokan Manu was found missing. A complaint was registered by his relatives before

the police. Thereafter investigation was conducted and CCTV footage was taken and then it was revealed that the above said Manu was brutally

attacked by accused Nos. 1 to 14 with the intention to murder him and because of the serious impact of the injuries sustained by him, he died and

thereafter all the accused together had buried the body in the seashore and thereby committed the aforesaid offences.

Learned counsel for the petitioner would submit that the petitioner is totally innocent and he is suffering from some kidney problems. But he is

undergoing unnecessary incarceration since 07.09.2019.

The learned Public Prosecutor has vehemently opposed this application and submitted that the petitioner is involved in some other cases and so he is

having criminal antecedents. It is also submitted that the star witness of the prosecution is a poor man residing near the seashore where the incident

occurred. The prosecution has also expressed an apprehension that in case bail is granted to the petitioner, there is every possibility to cause threat to

the life of the star witness. So, the learned Public Prosecutor has sought for dismissal of the bail application.

Now the case is pending before the Sessions Court for trial. The apprehension expressed by the learned Public Prosecutor appears to be genuine as

the incident would reveal the existing feud between gangsters. It prima facie appears that the attack on the deceased was with premeditation and not

a sudden fight. It is pertinent to note that in the Bail Application filed by another accused, this court has already directed the trial court to start the trial

of the case within a period of five months from the date of the order. It is also to be noted that while considering the Bail Application filed by the 8th

accused, liberty was given to him to approach the trial court if trial of the case has not been started within a period of five months from the date of the

order. The said order was passed on 17.8.2020. As the case is ripe for trial, the learned Sessions Judge could start the trial without further delay. Such

being the case, if bail is granted to the petitioner, the possibility to cause further delay in proceeding with the trial of the case cannot be ruled out and

so as to avoid the same and to ensure a free and fair trial, I think that a further direction can be given to the petitioner to approach the trial court for

his release on bail, if trial has not started as directed by this court in the Bail Application filed by the 8th accused as referred above.

With the above observation, this application is dismissed.