Judicial consistency dictates similar treatment in bail applications, particularly for co-accused with analogous claims, based on prior decisions.

ORDER :

P.B.Suresh Kumar, J.

This is an application preferred seeking orders suspending the execution of the sentence passed against the applicant consequent on his conviction in terms of the judgment impugned in the appeal.

2. The applicant is the sixteenth accused in S.C.No.148 of 2007 on the files of the Additional Sessions Court-VII, Thiruvananthapuram. He stands convicted and sentenced for the offences punishable under Sections 143 , 148, 427, 450, 324, 326 and 307 read with Section 149 of the INDIAN PENAL CODE (the IPC). In the occurrence, which is the subject-matter of the case, one Ayyappan Achari died and a few others injured. The accusation in the case is that on account of previous enmity stemming from a prior incident, with the common object of committing the murder of one Ayyappan Achari, the accused, 19 in number, formed themselves into an unlawful assembly, armed with deadly weapons, trespassed into the house of Rajagopalan Achari at about 9.30 p.m. on 28.08.2004, and the first accused inflicted a stab injury on Ayyappan Achari on his lower abdomen with a sword and the remaining accused caused injuries to PWs 1, 2 and Rajagopalan Achari and also caused mischief in the house by destroying the movables therein. Specific overt acts were alleged against each member of the unlawful assembly. The overt acts alleged against accused 11 to 15 is that they destructed the movables in the house and the overt acts alleged against the sixteenth accused is that he damaged a motor cycle.

3. Accused 3, 4, 5, 7, 10, 11 and 14 in the case who preferred Crl.Appeals Nos.89, 94 and 98 of 2024 before this Court challenging their conviction and sentence, preferred applications in the said appeals seeking orders suspending the execution of the sentence passed against them, and a Division Bench of this Court, of which one of us was a party, dismissed the applications on merits, by a common order passed on 16.02.2024. Accused 10 and 11 among the said accused preferred applications later for the same relief. By that time, there was a change in the roster, owing to which the said applications were placed before another Division Bench. The said applications were allowed by that Bench on merits and accused 10 and 11 were enlarged on bail as per the common order passed on 14.10.2024. Thereupon, accused 3, 4, 5, 7 and 14 preferred a fresh application for the same relief. By that time, the roster had changed again. The said application was allowed in part on merits by a different Division Bench and the fourteenth accused was also enlarged on bail. It is seen that there has been further change in the roster after the fourteenth accused was enlarged on bail and it is on account of that change, the above application by the sixteenth accused has come up before this court.

4. The learned counsel for the applicant contended that the allegations against the sixteenth accused as also accused 10 and 11 are similar, and inasmuch as the execution of the sentence passed against accused 10 and 11 has been suspended, the execution of the sentence passed against the sixteenth accused is also liable to be suspended. The learned Public Prosecutor did not dispute the fact that the allegations against the said three accused namely, accused 10, 11 and 16 are similar inasmuch as the overt acts alleged against them are that they caused destruction and damage of movables. Nevertheless, the learned Public Prosecutor opposed the application of the sixteenth accused placing reliance on the common order dated 16.02.2024.

5. We have considered the arguments of the learned counsel for the parties.

6. As conceded by the learned Public Prosecutor, the overt acts alleged