Asok Bark and Ameer Sheikh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940** **Bail Appl..No. 8859 of 2018** **SC NO.414/2018 OF THE ADDL.ASSISTANT SESSIONS COURT, IRINJALAKUDA CRIME NO.112/2018 OF CHALAKKUDY POLICE STATION, THRISSUR** ## **PETITIONER/1ST ACCUSED:** **ASOK BARK, AGED 32 YEARS, S/O.RAJ KISHORE BARIK, R/O. BARA BASSAR, BARIK CHAWK, WARD NUMBER 34, NEAR YFA HOSPITAL PS NAGAR, KATTIHAR DISTRICT, BIHAR STATE. (CUSTODY OF SPECIAL SUB JAIL, IRINJALAKUDA), THRISSUR DISTRICT, PIN-680 121.** **BY ADV. SRI.MANJU ANTONEY** ## **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE, CHALAKKUDY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, COCHIN-682 031.** **BY PUBLIC PROSECUTOR SRI. T. R. RENJITH** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.01.2019, ALONG WITH Bail Appl.8865/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.As.8859 & 8865/18 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940** **Bail Appl..No. 8865 of 2018** **SC NO.414/2018 OF THE ADDL.ASSISTANT SESSIONS COURT, IRINJALAKUDA** **CRIME NO.112/2018 OF CHALAKKUDY POLICE STATION, THRISSUR** ## **PETITIONER/2ND ACCUSED:** **AMEER SHEIKH, AGED 32 YEARS, S/O.ALI HUSSAIN SHEIKH, MADHYA PIYARPUR, JHARKHAND. (IN CUSTODY SPECIAL SUB JAIL, IRINGALAKKUDA), THRISSUR DISTRICT, PIN- 680 121.** **BY ADV. SRI.MANJU ANTONEY** ## **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY DEPUTY SUPERINTENDENT OF POLICE, CHALAKKUDY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. T. R. RENJITH PP.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.01.2019, ALONG WITH Bail Appl.8859/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** B.As.8859 & 8865/18 3 ## **ORDER** These applications are filed under § 439 of the Cr.P.C. 2. The applicants herein are accused Nos.1 and 2 in S.C. No. 414 of 2018 on the files of the Additional Assistant Sessions Court, Irinjalakkuda. They face indictment under §§ 457, 461, 380, 436 and 120(b) r/w. § 34 of the IPC. 3. The 1[st] accused is a resident of Bihar and the 2[nd] accused is from Jharkkand. The rest of the accused are also persons from out of the State. The prosecution allegation is that accused Nos.1 to 5 hatched a criminal conspiracy in the month of November, 2017 in the State of Jharkhand and decided to commit theft in a major jewellery shop in the State of Kerala. In pursuance of the same, the accused Nos.1 and 4 came down to Kerala and took rooms in various lodges in and around Chalakkudy using the Aadhar card of the 1[st] accused. They zeroed in on a jewellery shop at Chalakkudy to carry out the heist. They procured a room in the Santhi Tourist Home at Chalakkudy. They purchased various implements such as pick axes, crow bars etc., and also a gas cutter set from a shop at Thrissur and an LPG Cylinder and related equipments from Chennai. During the intervening hours of B.As.8859 & 8865/18 4 27.1.2018 and 29.1.2018, they are alleged to have drilled a hole on the rear side of the Edassery Jewellery shop at Chalakkudy. Thereafter, they disconnected the electricity supply and also the functioning of the inverter and the 3[rd] accused, who is an expert welder, is alleged to have used the oxygen cylinder and gas cutter for breaking open the safe locker. They are then alleged to have committed theft of about 15 kgs. of gold worth Rs.4 Crores, a sum of Rs.6,06,787/- and then managed to escape to Jharkhand with the proceeds. Based on the information furnished by the de facto complainant, the aforesaid Crime was registered initially under §§ 454, 380 and 461 of the IPC. After meticulous investigation, final report was laid. 4. In the course of investigation, which was done with the assistance of the Cyber Investigation Team, it was revealed that certain telephone calls were made within the tower dump and on verification, it was later revealed that the phone calls were of persons who belonged to Bihar, Jharkhand and West Bengal. Based on inputs received from the Cyber Investigation Team, the 1[st] accused was arrested on 9.2.2018 from Bihar. Based on his disclosure, the 2[nd] accused was arrested on 16.2.2018 from Jharkhand and the 3[rd] accused on 17.2.2018 from West Bengal. At the time of arrest of the B.As.8859 & 8865/18 5 3[rd] accused, two gold chains with imprints of the jewellery shop of the de facto complainant and a sum of Rs.7,24,500/- were seized. It was revealed that the accused had sold the gold to the 6[th] accused and the amount was received from him. 5. Based on the disclosure statement made by accused Nos.1 and 2, 800 gms. of gold ornaments and two gold chains with imprints of the jewellery shop were seized. The shop owners from whom the tools used for breaking open the jewellery shop furnished information regarding the involvement of the applicants. The chance fingerprints were also taken from the scene of Crime and it corresponded with that of the 2[nd] accused. A cigarette butt, which was seized from the scene of crime, was sent for DNA profiling and it pointed to the involvement of the 1[st] accused. The accused Nos. 6 to 9 are still at large. After completion of investigation, a split charge was laid before the learned Magistrate. The case was later committed and is now pending before the Prl. Assistant Sessions Court, Irinjalakkuda. 6. The learned counsel appearing for the applicants submitted that the applicants have been in custody for a substantially long period. According to the learned counsel, the 1[st] accused was arrested on 9.2.2018 and the 2[nd] accused on 16.1.2018 from their native place. B.As.8859 & 8865/18 6 It is further submitted that their earlier bail application was dismissed by this Court for various grounds. The learned counsel contends that the Apex Court in a catena of decisions has held that a person who is on bail has a better chance of defending a case than a person who is under-trial. He further submitted that the applicants have already filed a petition seeking discharge contending that the charge against them is ground less. It is submitted that no purpose would be served in keeping the applicants under incarceration for a further period. It is further urged that the 1[st] accused it the bread winner of a family and there is no one to take care of his wife and minor children. Insofar as the 2[nd] accused is concerned, it is submitted that his wife is no more and his children are at the mercy of strangers. It is submitted that unless the applicants are released on bail, they would not be able to take care of the family members and defend the case in a proper manner. The learned counsel would contend that the fact that they are residents of other States is not a tenable reason to deny bail to them. 7. The learned Public Prosecutor, on instructions, submitted that this Court, in order dated 2.7.2018, which is produced as Annexure-A5 in B.A. No.8859/2018, had considered all the relevant aspects and was not persuaded to enlarge the applicants on bail. This Court had also B.As.8859 & 8865/18 7 directed the trial court to make efforts to conclude the trial at the earliest. It is further submitted that thereafter the applicants have filed an application for discharge and when the same was dismissed, they have challenged the same before this Court. It is further submitted that it was with much difficulty that the applicants were taken into custody from remote parts of the country. He would also refer to various other crimes registered in the State of Kerala, which were committed in the same modus operandi. The accused in those cases are still at large. In the instant case, some of the accused are still at large and though earnest efforts were taken by the investigating officer, he was not able to trace them out. Substantial part of the gold ornaments were sold by the accused Nos.1 to 5 to the absconding accused and in view of the above, the police have not been able to seize the entire gold ornaments which were robbed. According to the learned Public Prosecutor, the reasonable possibility of securing the presence of the accused at the time of trial is a factor that should weigh in the mind of this Court. The prosecution reasonably apprehends that the applicants, if released on bail, would make themselves scarce. It is further submitted that the crime was registered in the year 2018 and necessary directions can be issued to conclude the trial at the earliest. B.As.8859 & 8865/18 8 8. I have considered the submissions advanced and have perused the materials on record. 9. The principles, which the court must consider while granting or declining bail, have been stated by the Apex Court in a catena of cases. In **Prahlad Singh Bhati v. NCT, Delhi** [(2001) 4 SCC 280], it was held thus: “The jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. ## 10. The very same principles were reiterated in **State of U.P. v.** ## **Amarmani Tripathi** [(2005) 8 SCC 21] as well. ## 11. In the case on hand, there cannot be any doubt that the B.As.8859 & 8865/18 9 allegations against the applicants are extremely grave. This is a case of planned robbery in a daring fashion. The police have been able to obtain scientific evidence linking the applicants with the crime. Admittedly, the applicants are persons who are residents of other States. Huge quantities of gold were stolen and the investigating agency has not been able to recover the entire ornaments. As held by the Apex Court, one of the important considerations that are to be borne in mind is the reasonable possibility of ensuring the presence of the accused at the state of trial. When a reasonable apprehension is expressed by the prosecution that it would be next to impossible to secure their presence at the stage of trial, the same cannot be brushed aside. Furthermore, on going through the case diary, it cannot be said that the said apprehension is baseless. In the case on hand, the crime was registered in the month of January, 2018 and final report was laid within record time. The prosecution appears to be ready to adduce evidence and dispose of the case expeditiously. The mere fact that the applicants have been in custody from the month of January, 2018 may not be a reason to allow their application for bail. As held by the Apex Court in **Rajesh Ranjan Yadav** v. **CBI** (AIR 2007 SC 451), while Article 21 is of great importance, a balance must be struck between the right of liberty of the person accused of an offence B.As.8859 & 8865/18 10 and the interest of the society. No right can be absolute and reasonable restrictions can be placed on the exercise of the rights. The grant of bail due to prolonged incarceration cannot be said to be an absolute rule because, the grounds of bail must depend upon the contextual facts and circumstances. 12. Since the apprehension expressed by the prosecution that the applicants would make themselves scarce appeared to be genuine, this Court had called for a report from the learned Sessions Judge as to the prospects of expediting the trial and also the time frame within which the case can be disposed of. The learned Sessions Judge has submitted his report which is placed before me by the registry. In the said report, it is stated that the case can be disposed of within an outer limit of four months. 13. At this stage, the learned counsel appearing for the applicants interjected and contended that the applicants have preferred a revision petition along with an application for stay and if this Court is inclined to grant an order as prayed for, the learned Sessions Judge may not be able to keep up with the time schedule as reported. According to the learned counsel, such an order of expeditious disposal of the case may not work out to their advantage. B.As.8859 & 8865/18 11 14. When the prosecution expresses its genuine apprehension that it would not be possible to secure the presence of the applicants if they are released on bail, their apprehension cannot be brushed aside. Furthermore, the learned Sessions Judge has also expressed his hope that the matter can be disposed of within a period of four months. Having considered the nature and gravity of the accusations against the applicants, the apprehension expressed by the prosecution concerning the likelihood of their abscondence and after evaluating all relevant facts, I am of the view that this Court will not be justified in releasing the applicants on bail at this stage. If the trial is delayed further, the applicants may approach the jurisdictional Assistant Sessions Judge and seek for appropriate orders. These applications are dismissed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** krj //TRUE COPY// P.A. TO JUDGE