Bail Applications in Bail Appl. Nos. 3674 of 2020 and 3689 of 2020, High Court of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **Bail Appl..No.3674 OF 2020** **CRIME NO.RC 3(S) OF 2019 CBI:(SCB) THIRUVANANTHAPURAM-CRIME NO.75/CB KNR&KSD/2019** **CRIME NO.81/2019 OF Bekal Police Station , Kasargod** ## **PETITIONER/ACCUSED:** - **1 MURALI. A. S/O.KUNHIRAMAN NAIR, THANNITHODU VEEDU, NEAR AYYAPPA BHAJANA MANDIR, KASARGOD DISTRICT,KASARGOD ,PIN671123** - **2 RANJITH.T., S/O. KUNHIKANNAN, RESIDING AT KANNOTH, THANNATHINGAL VEEDU KAANOTH, PERIYA,PIN** - **3 PRADEEP S/O.KUNHIKANNAN,RESIDING AT KANNOTH, THANNATHINGAL VEEDU KAANOTH, PERIYA, S/O MADHAVAN, THANNITHODU, PERIYA, KASARGOD DISTRICT,PIN** **BY ADV. SRI.M.SASINDRAN** ## **RESPONDENT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,PIN-682031** - **2 THE CENTRAL BUREAU OF INVESTIGATION THIRUVANANTHAPURAM,PIN-695 008** - R1 **BY SRI.SUMAN CHAKRAVARTHY, SENIOR PUBLIC PROSECUTOR** R2 **BY ADV. SASTHAMANGALAM S. AJITHKUMAR,SC,CBI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.08.2020, THE COURT ON 25.08.2020 PASSED THE FOLLOWING:** **Bail Appl..No.3674 OF 2020 & Bail Appl..No.3689 OF 2020** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI TUESDAY, THE 25TH DAY OF AUGUST 2020 / 3RD BHADRA, 1942** ## **Bail Appl..No.3689 OF 2020** **CRIME NO.75/CB KNR&KSD/2019, THIRUVANANTHAPURAM , CRIME NO.81/2019 OF Bekal Police Station , Kasargod** ## **APPLICANTS/ACCUSED:** |**1**|**PEETHAMBARAN A.**| |---|---| ||**AGED 48 YEARS**| ||**ECHILADUKKAM HOUSE, VENGAYADUKKAM, PULLUR PERIYA**| ||**VILLAGE, KASARGOD TALUK-671316.**| |**2**|**SAJI C.GEORGE@ SAJI**| ||**AGED 40 YEARS, S/O GEORGE C.J,**| ||**SAURIAM THOTTIYIL VEEDU, ECHILADUKKAM, PULLUR**| ||**PERIYA VILLAGE-671316.**| |**3**|**SURESH.K.M**| ||**AGED 27 YEARS**| ||**S/O.RAJAN.K.M., KAVUNGAL VEEDU, ODUVALLI, KOOVERI**| ||**VILLAGE, KANNUR, NOW THANNITHODE HOUSE,**| ||**ECHILADUKKAM, PULLUR PERIYA VILLAGE-671316.**| |**4**|**ANIL KUMAR.K.@ AMBU**| ||**AGED 33 YEARS**| ||**S/O.KORAGAPPA, ECHIDAKKULAM HOUSE, ECHILADUKKAM,**| ||**PULLUR PERIYA VILLAGE-671316.**| |**5**|**GIJIN**| ||**AGED 26 YEARS**| ||**S/O.A.GANGADHARAN, KALLIYOT HOUSE, KALLIYOT,**| ||**P.O.KANHIRADUKKAM, PULLU PERIYA VILLAGE, KASARGOD**| ||**TALUK-671531.**| |**6**|**SREERAG R @ KUTTU**| ||**AGED 22 YEARS**| ||**S/O.RAVEBBDRAN K, PLAKA THOTTIYIL HOUSE, KALLIYOT,**| ||**PULLUR PERIYA VILLAGE, KASARGOD TALUK-671316.**| **Bail Appl..No.3674 OF 2020 & Bail Appl..No.3689 OF 2020** **3** **7 ASWIN A @ APPU AGED 19 YEARS S/O.KUNHIKANNAN, MALANGAD HOUSE, KUNDAMKUZHI, BEDAKAM VILLAGE-671316.** **BY ADVS.** **SRI.K.GOPALAKRISHNA KURUP (SR.) SHRI.ASHRUTH NASER** ## **RESPONDENT/STATE:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682031.** - **2 CENTRAL BUREAU OF INVESTIGATION, THIRUVANANTHAPURAM-695008.** **R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR PUBLIC PROSECUTOR R2 BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR,SC,CBI** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.08.2020, THE COURT ON 25.08.2020 PASSED THE FOLLOWING:** 4 B.A.Nos.3674 of 2020 & 3689 of 2020 ## **R.NARAYANA PISHARADI, J** ************************ B.A.Nos.3674 of 2020 & 3689 of 2020 ----------------------------------------------Dated this the 25[th] day of August, 2020 ## **O R D E R** These applications for bail are filed under Section 439 of the Code of Criminal Procedure, 1973 (for short 'the Code'). 2. The petitioners in B.A.No.3689/2020 are accused 1 to 7 and the petitioners in B.A.No.3674/2020 are accused 9 to 11 in the case registered as Crime No.81/2019 of the Bekal police station which was re-registered as Crime No.75/CB/KNR & KSD/2019 of the Crime Branch. 3. The case relates to the murder of two young persons by name Kripesh and Sarath Lal, who were activists of Youth Congress, on 17.02.2019. B.A.Nos.3674 of 2020 & 3689 of 2020 5 4. The prosecution case, in short, is as follows. The first accused was the Branch Secretary and Member of the Area Committee of the Communist Party of India (Marxist). There was enmity and political rivalry between the first accused and the deceased persons. On 05.01.2019, the deceased Sarath Lal and some other persons had attacked the first accused and caused grievous hurt to him. On 14.02.2019, in between 15.40 and 17.40 hours, accused 1 to 9 and 11 hatched a criminal conspiracy at the bus waiting shed at the place called "Echiledukkam" in Peria Village and decided to murder Kripesh and Sarath Lal. Pursuant to such conspiracy, on 17.02.2019, as per the information obtained from the tenth accused that Kripesh and Sarath Lal were at the premises of the place Kallyot, accused 1 to 8, armed with deadly weapons like iron pipes and swords, reached the arecanut plantation on the side of the K.S.E.B Sub Station at Peria and they waited there by hiding there. At about 19.36 hours, the tenth accused informed the sixth accused over mobile phone that Kripesh and Sarath Lal had proceeded towards their house on a motor cycle. Between 19.36 and 19.45 hours, 6 B.A.Nos.3674 of 2020 & 3689 of 2020 when Kripesh and Sarath Lal reached the road there, Kripesh riding a motor cycle and Sarath Lal as the pillion rider, accused 1 to 8 jumped on to the road and attacked Kripesh and Sarath Lal with iron pipes and swords and caused them fatal injuries. Kripesh succumbed to the injuries at or about the same time and Sarath Lal succumbed to the injuries on the way to the hospital. It is alleged that accused 1 to 11 have committed the offences punishable under Sections 143, 147, 148, 341, 326 and 302 read with 149 I.P.C and also under Sections 118 and 120B I.P.C. 5. The case relating to the murder was initially registered as Crime No.81/2019 of Bekal Police station. Investigation of the case was subsequently handed over to the Crime Branch and the case was re-registered as Crime No.75/CB/KNR & KSD/2019. 6. The first accused was arrested on 19.02.2019, the second accused on 20.02.2019 and accused 3 to 7 on 21.02.2019. Accused 9 was arrested on 13.03.2019, accused 10 on 16.03.2019 and accused 11 on 29.04.2019. 7. After completing the investigation, the Deputy Superintendent of Police, Crime Branch, Malappuram filed final B.A.Nos.3674 of 2020 & 3689 of 2020 7 report against the accused on 20.05.2019 in the Magistrate's Court concerned. Learned Magistrate committed the case to the Court of Session after complying with necessary formalities. 8. Meanwhile, the parents of the deceased persons filed a writ petition as W.P(C) No.10265/2019 before this Court for issuing a direction to entrust the investigation of the case to the Central Bureau of Investigation (CBI). On 30.09.2019, a Single Bench of this Court allowed the aforesaid writ petition. The operative portion of the judgment in the aforesaid writ petition reads as follows: _"In the result, this Writ Petition stands allowed and the investigation in Crime No. 75/CB/KNR & KSD/2019 of Crime Branch, Kasargod (Crime No. 81 of 2019 of Bekal Police Station) stands transferred to the Central Bureau of Investigation, setting aside the final report already filed. The Superintendent of Central Bureau of Investigation shall take over and continue the investigation forthwith, in accordance with law."_ 9. Pursuant to the order of this Court, the C.B.I has taken over the investigation of the case and re-registered the case as Crime 8 B.A.Nos.3674 of 2020 & 3689 of 2020 ## No. RC-3 (S)/2019/CBI(SCP). 10. The State has filed appeal as W.A.No.2216/2019 against the judgment of the Single Bench in the writ petition W.P(C) No.10265/2019. It was submitted at the Bar that a Division Bench of this Court has heard the aforesaid writ appeal and reserved judgment in it. 11. Heard Sri. Gopalakrishna Kurup, learned Senior Counsel for the petitioners in B.A.No.3689/2020 and Sri.M.Sasindran, learned counsel for the petitioners in B.A.No.3674/2020 and also Sri.Suman Chakaravarthy, learned Senior Public Prosecutor. Heard also Sri.Sasthamangalam S. Ajithkumar, learned Standing Counsel for the C.B.I. 12. At the outset it is to be mentioned that, Sri.Sasthamangalam S. Ajithkumar, learned Standing Counsel for the C.B.I has submitted that, though the CBI has taken over the investigation and re-registered the case, in view of the oral direction made by the Division Bench of this Court which heard the appeal W.A.No.2216/2019, the C.B.I has not so far commenced the investigation of the case. 9 B.A.Nos.3674 of 2020 & 3689 of 2020 13. The second accused, along with accused 9 and 10, had earlier filed application for regular bail as B.A.No.3291/2019. It was dismissed as withdrawn by a learned Judge of this Court by order dated 13.06.2019. 14. Accused 1 to 7 and 9 to 11 filed an application as B.A.No.8318/2019 for granting statutory bail under Section 167(2) of the Code. It was dismissed by me by order dated 08.01.2020. 15. The present application for bail as B.A.No.3689/2020 was filed by accused 1 to 7 on 17.06.2020. When it came up for hearing before a learned Judge of this Court through video conferencing, it was ordered to be posted along with the application for bail B.A.No.8495/2019 which was filed by accused No.8. The application for bail B.A.No.8495/2019 filed by accused No.8 was dismissed by the learned Judge of this Court on 22.07.2020. Thereafter, after obtaining the orders of the Hon'ble the Chief Justice, the Registry has posted B.A.No.3689/2020 before this Bench. 16. As far as accused 9 and 10 are concerned, the present 10 B.A.Nos.3674 of 2020 & 3689 of 2020 application is the third application for regular bail and as far as accused No.11 is concerned, the present application is the second application for regular bail. As noticed earlier, B.A.No.3291/2019 filed by accused 9 and 10 was dismissed as withdrawn by a learned Judge of this Court by order dated 13.06.2019. Accused 9 to 11 had together filed another application for regular bail as B.A.No.5421/2019 and on 07.08.2019, it was dismissed on merits by the same learned Judge who had earlier dismissed the application B.A.No.3291/2019. However, the present application for regular bail filed by accused 9 to 11, which is the third one as far as accused 9 and 10 are concerned, was posted before this Bench by the Registry after obtaining the orders of the Hon'ble the Chief Justice. 17. The aforesaid facts are narrated here only to indicate that the earlier applications for regular bail filed by accused 2 and 9 to 11 had been dealt with by another learned Judge of this Court and that I had occasion earlier to consider only the application for statutory bail filed by accused 1 to 7 and 9 to 11. 18. Learned counsel for the petitioners submitted that none 11 B.A.Nos.3674 of 2020 & 3689 of 2020 of the earlier orders passed by this Court refusing bail to the petitioners has been challenged before the Hon'ble Supreme Court. 19. Now, the merits of the present applications for bail shall be considered. 20. Sri.K.Gopalakrishna Kurup, learned Senior Counsel who appeared for the petitioners in B.A.No.3689/2020 invited the attention of this Court to the fact that accused 1 to 7 have been in jail for more than one year and six months, yet it is not certain when the trial of the case would commence. Learned Senior Counsel submitted that it is not even certain whether the investigation of the case is completed or whether it is likely to be continued by the C.B.I. Learned Senior Counsel contended that speedy investigation is also a part of speedy trial. He would submit that the personal liberty of a person is at a very high pedestal in the scheme of our Constitution and the same cannot be interfered without sufficient reasons. Learned Senior Counsel would contend that, in view of the uncertainty with regard to the commencement of investigation by C.B.I and commencement of 12 B.A.Nos.3674 of 2020 & 3689 of 2020 the trial of the case, accused 1 to 7 are entitled to be enlarged on bail. 21. Sri.M.Sasindran, learned counsel for the petitioners in B.A.No.3674/2020 adopted the principal arguments of the learned Senior Counsel who appeared for the other accused. He has also contended that in view of the order of the Single Bench setting aside the charge-sheet filed by the Crime Branch, the investigation conducted by that agency has also become non-est. He would, therefore, contend that there are no materials to show the involvement of accused 9 to 11 in any manner in the commission of the crime. 22. _Per contra_ , learned Senior Public Prosecutor Sri.Suman Chakaravarthy would contend that the crime committed by the accused persons is so heinous and gruesome and that fact by itself is sufficient to reject the bail applications. He has submitted that accused 1 to 7 are persons who have directly participated in committing the murder of two young persons merely on account of political rivalry. Learned Senior Public Prosecutor would further submit that there are enough cogent materials collected against 13 B.A.Nos.3674 of 2020 & 3689 of 2020 the accused during the investigation conducted by the Crime Branch. He has submitted that the Single Bench of this Court, while entrusting the investigation of the case to the C.B.I, has not found that accused 1 to 7 and 9 to 11 are not the real persons involved in the commission of the crime but the investigation was entrusted to the C.B.I only in view of certain laches, which according to the Single Bench, have occurred in the investigation conducted by the Crime Branch. It is also submitted by him that, if the accused are released on bail, they would intimidate and influence the witnesses and the trial of the case would be put into jeopardy. Learned Senior Public Prosecutor has also contended that the mere fact that the accused have been under detention for a long period is not a sufficient ground to grant them bail. He has also pointed out that the order of the Single Bench in W.P(C) No.10265/2019 has not attained finality as it is under challenge in the writ appeal filed by the State. 23. Learned Senior Counsel for the petitioners in B.A.No. 3689/2020 has heavily relied upon the decision of the Apex Court in **Sanjay Chandra v. C.B.I : AIR 2012 SC 830** in support of 14 B.A.Nos.3674 of 2020 & 3689 of 2020 his plea that the accused are entitled to be released on bail. In this decision, the Apex Court has laid emphasis on the fact that detention in custody pending completion of trial could be a cause of great hardship to the accused and reiterated the principle that bail is the rule and committal to jail an exception and when the accused are detained in jail for an indefinite period, it amounts to violation of Article 21 of the Constitution of India. 24. In **Virupakshappa Gouda v. State of Karnataka : AIR 2017 SC 1685** , the Apex Court had noticed the relevant passages in the decision in **Sanjay Chandra** (supra) and it was held as follows: _“Be it noted, though the aforesaid passages have their relevance but the same cannot be made applicable in each and every case for grant of bail. In the said case, the accused - appellant was facing trial for the offences under Sections 420-B, 468, 471 and 109 of the IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. Thus, the factual matrix was quite different. That apart, it depends upon the nature of_ B.A.Nos.3674 of 2020 & 3689 of 2020 15 _the crime and the manner in which it is committed. A bail application is not to be entertained on the basis of certain observations made in a different context. There has to be application of mind and appreciation of the factual score and understanding of the pronouncements in the field”._ 25. The decision in **Sanjay Chandra** (supra) has no application to the facts of the present case. In that case, the accused were facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian Penal Code and Section 13(2) read with 13(i)(d) of the Prevention of Corruption Act, 1988. The trial against the accused had already commenced but there was no possibility of the trial being completed without delay. The Apex Court took note of the fact that the trial would take considerable time and that the accused, who were in jail, had to remain in jail longer than the period of detention, had they been convicted. It was held by the Apex Court that not only the seriousness of the crime but the punishment provided for the offences shall also be considered in deciding bail applications. 26. In **Sanjay Chandra** (supra), the Apex Court has also 16 B.A.Nos.3674 of 2020 & 3689 of 2020 ## observed and held as follows: _“Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds : -The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. ....... No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or_ 17 B.A.Nos.3674 of 2020 & 3689 of 2020 _tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the - completion of the investigation and filing of the charge sheet. ..... We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation”._ (emphasis supplied) 27. In the instant case, accused 1 to 7 are persons who are alleged to have directly participated in committing murder of two young persons. Accused 9 to 11 are persons who were allegedly involved in the conspiracy to commit the murder. The facts in the present case could not be compared with the facts in **Sanjay Chandra** (supra). 28. The law in regard to grant or refusal of bail is very well settled. The general principles regarding granting or refusing bail 18 B.A.Nos.3674 of 2020 & 3689 of 2020 are enumerated in several judgments of the Apex Court. Generally, the following matters are to be considered in granting or refusing bail to a person accused of a non-bailable offence. (1) The nature of the offence (2) The severity of the punishment which conviction will entail (3) The character, behaviour, means and standing of the accused (4) The circumstances which are peculiar to the accused (5) The status and position of the accused in relation to the victim or the complainant (6) Reasonable possibility of securing the presence of the accused during the trial (7) Reasonable apprehension of the witnesses being tampered with (8) The larger interests of the public or the State or the society (9) Likelihood of the accused fleeing from justice (10) Absence or presence of materials in support of the accusation (11) Likelihood of the offence being repeated (12) Frivolity in prosecution. 29. In the instant case, the offences of murder and conspiracy to commit murder are alleged against the petitioners. The offences are not only grave and serious but they invite the maximum punishment provided under law. 19 B.A.Nos.3674 of 2020 & 3689 of 2020 30. As already noticed, accused 1 to 7 are persons alleged to have directly participated in committing the murder of two young persons. Suffice it to state that there are sufficient materials collected against them during the investigation conducted by the Crime Branch to prove their involvement in the commission of the crime. 31. The contention with regard to absence or presence of materials against accused 9 to 11 shall be considered a little later. The contention that, setting aside the charge-sheet filed against the accused by the Crime Branch has resulted in absence of any materials against the accused, shall also be adverted to later. 32. Political rivalry as well as personal enmity appears to be the motive of the crime. The petitioners are persons who are actively associated with the ruling party in the State. The first accused is a person who has been a Branch Secretary and Area Committee Member of C.P.I(M). There can be no doubt with regard to the fact that the petitioners are persons who wield political influence. The apprehension of the prosecution that, if 20 B.A.Nos.3674 of 2020 & 3689 of 2020 the petitioners are released on bail, they being influential and powerful persons who belong to a prominent political party in the State, will try to influence or intimidate the witnesses cannot be ignored. 33. The larger interest of the society has also to be considered in this context. True, right to bail shall not be denied merely on account of the sentiments of the society against the accused. Liberty of a citizen is undoubtedly important but security of the society is also important. In **Ash Mohammad v.** **Shiv Raj Singh : (2012) 9 SCC 446** , it has been held as follows: _“We are absolutely conscious that liberty of a person should not be lightly dealt with, for deprivation of liberty of a person has immense impact on the mind of a person. Incarceration creates a concavity in the personality of an individual. Sometimes it causes a sense of vacuum. Needless to emphasize, the sacrosanctity of liberty is paramount in a civilized society. However, in a democratic body polity which is wedded to Rule of Law an individual is expected to grow within the social restrictions sanctioned by law. The individual liberty is restricted by larger social_ B.A.Nos.3674 of 2020 & 3689 of 2020 21 _interest and its deprivation must have due sanction of law. In an orderly society an individual is expected to live with dignity having respect for law and also giving due respect to others' rights. It is a well accepted principle that the concept of liberty is not in the realm of absolutism but is a restricted one. The cry of the collective for justice, its desire for peace and harmony and its necessity for security cannot be allowed to be trivialized. The life of an individual living in a society governed by Rule of Law has to be regulated and such regulations which are the source in law subserve the social balance and function as a significant instrument for protection of human rights and security of the collective. It is because fundamentally laws are made for their obedience so that every member of the society lives peacefully in a society to achieve his individual as well as social interest. ….. Law and order in a society protect the established precepts and see to it that contagious crimes do not become epidemic. In an organized society the concept of liberty basically requires citizens to be responsible and not to disturb the tranquility and safety which every well-meaning person desires”_ ## 34. In **Neeru Yadav v. State of U.P : AIR 2015 SC** ## **3703** , it has been held as follows: B.A.Nos.3674 of 2020 & 3689 of 2020 22 _“It is an established fact that a crime though committed against an individual, in all cases it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation. In a civilized society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society”._ 35. In the instant case, two young persons, who were activists of 'Youth Congress' were murdered by their political opponents. The impact, which the crime had inflicted on the society, cannot be ignored. 36. Recently, in **P.Chidambaram v. Directorate of Enforcement : AIR 2020 SC 1699** , the Supreme Court has approved the triple test of flight risk, tampering with evidence and influencing of witnesses in dealing with bail applications. In 23 B.A.Nos.3674 of 2020 & 3689 of 2020 the present case, the prosecution has not raised any apprehension that, if released on bail, the petitioners would abscond and flee from justice. Therefore, there is no flight risk involved in granting bail to the petitioners. But, as already noticed, the petitioners being persons having political influence and power, there is every likelihood of tampering with evidence and influencing witnesses. 37. The contention raised by the learned counsel regarding absence of materials to prove the involvement of accused 9 to 11 in the conspiracy shall be considered now. The order passed by the learned Judge of this Court on 07.08.2019 in the earlier bail application (B.A.No.5421/2019) filed by accused 9 to 11 is relevant in this context. In the aforesaid order, it is stated as follows: _“The learned Senior Public Prosecutor has submitted that there is statement of CW40 to prove the involvement of A9 and A11 in the commission of the offence. The call records are also available to connect A9 and A11 with the conspiracy. It has been further submitted by the learned Public_ B.A.Nos.3674 of 2020 & 3689 of 2020 24 _Prosecutor that the statements of Cws 42, 43 and 44 are available to prove the involvement of A10 in the commission of the offence. The learned Counsel_ _for the petitioners has submitted that the statements of CW40 and CW42 to CW44 do not disclose the conspiracy. The learned Public Prosecutor has submitted that the statements of CW40 and CW42 to CW44 would disclose the presence of A9 and A11 in the locality. It has been further submitted by the learned Public Prosecutor that the presence of the said accused in the locality is fortified by the call records. When considering the application for bail, this Court is not called upon to embark upon an enquiry with regard to the probative value of the materials available before the court. ..... Suffice it to say that, there are materials to prima facie connect the petitioners with the commission of the offences alleged. Therefore, the argument advanced by the learned Counsel for the petitioners in this regard cannot be accepted"_ 38. In view of the aforesaid finding by this Court in the order passed in the earlier bail application filed by accused 9 to 11, the contention of these accused that there are no materials to prove their involvement in the conspiracy cannot be accepted. The Single Bench of this Court, while entrusting the investigation 25 B.A.Nos.3674 of 2020 & 3689 of 2020 of the case to the C.B.I, has not found that accused 1 to 7 and 9 to 11 are not the real persons involved in the commission of the crime. The investigation of the case was entrusted to the C.B.I only in view of certain laches occurred in the investigation conducted by the Crime Branch. 39. Criminal conspiracy, as defined in Section 120A I.P.C, means agreement between two or more persons to do or cause to be done an illegal act or an act which is not illegal by illegal means. Very often, conspiracy is hatched in privacy and secrecy. A conspiracy is a continuing offence which continues to subsist till it is executed or rescinded or frustrated by choice of necessity. During its subsistence, whenever any one of the conspirators does an act or series of acts, he could be held guilty under Section 120-B I.P.C. 40. The essence of a criminal conspiracy is the unlawful combination. The encouragement and support which coconspirators give to one another rendering enterprises possible which, if left to individual effort, would have been impossible, furnish the ground for visiting conspirators and abettors with 26 B.A.Nos.3674 of 2020 & 3689 of 2020 condign punishment. The conspiracy is held to be continued and renewed as to all its members wherever and whenever any member of the conspiracy acts in furtherance of the common design. The prosecution need not necessarily prove that the perpetrators expressly agreed to do or cause to be done illegal act; the agreement may be proved by necessary implication. Offence of criminal conspiracy has its foundation in an agreement to commit an offence. It is a matter of common experience that direct evidence to prove conspiracy is rarely available. Therefore, the circumstances proved before, during and after the occurrence have to be considered to decide about the complicity of the accused. Section 10 of the Indian Evidence Act states that, where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well for the purpose of proving the 27 B.A.Nos.3674 of 2020 & 3689 of 2020 existence of the conspiracy as for the purpose of showing that any such person was a party to it. The basic principle which underlies Section 10 of the Evidence Act is the theory of agency and hence every conspirator is an agent of his associate in carrying out the object of the conspiracy. Direct evidence in proof of a conspiracy is seldom available; offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out and all this is necessarily a matter of inference (See **Ram Narain Popli v. C.B.I : AIR 2003 SC 2748** ). 41. Learned counsel for the petitioners in B.A.No. 3674/2020 has contended that, in view of the order passed by the Single Bench of this Court in W.P(C) No.10265/2019 setting aside the charge-sheet filed by the Crime Branch, the entire 28 B.A.Nos.3674 of 2020 & 3689 of 2020 investigation done by the Crime Branch and the materials collected by the Crime Branch have also become non-est. There is no merit in this contention. The operative portion of the judgment in the aforesaid writ petition reads as follows: _"The Superintendent of Central Bureau of Investigation shall take over and continue the investigation forthwith, in accordance with law."_ The underlined portion of the aforesaid order would clearly show that what is ordered therein is continuation of the investigation by the C.B.I. Therefore, the investigation already conducted by the Crime Branch has not become non-est by the judgment in W.P(C) No.10265/2019. Moreover, the aforesaid judgment has not attained finality and the matter is under consideration by the Division Bench of this Court in the writ appeal filed by the State. 42. True, accused 1 to 7 have been in jail for more than a year and six months. It is also true that there is uncertainty now with regard to the investigation of the case in view of the stand taken by the C.B.I that it will not commence the investigation of the case till the decision of the Division Bench in 29 B.A.Nos.3674 of 2020 & 3689 of 2020 W.A.No.2216/2019 is pronounced. Now, everything depends upon the judgment that would be rendered by the Division Bench of this Court in the above writ appeal. 43. Long period of detention in jail, by itself, is not a sufficient ground to grant bail to the accused in a case in which they are accused of committing double murder. In **Kalyan Chandra Sarkar v. Rajesh Ranjan : AIR 2004 SC 1866,** the Supreme Court has held as follows: _“In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are_ B.A.Nos.3674 of 2020 & 3689 of 2020 30 _allegations of tampering with the witnesses by the accused during the period he was on bail. ..... For the reasons stated above, we are of be considered opinion that the High Court was not justified in granting bail to the first respondent on the ground that he has been in custody for a period of three and a half years or that there is no likelihood of the trial being concluded in the near future, without taking into consideration the other factors”._ (emphasis supplied) ## 44. In **Rajesh Ranjan Yadav v. C.B.I : AIR 2007 SC 451** , the Apex Court has held as follows: _“We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society”_ (emphasis supplied) 31 B.A.Nos.3674 of 2020 & 3689 of 2020 ## 45. In **Anil Kumar Yadav v. State : AIR 2017 SC 5398** , ## it has been held as follows: _“As pointed out earlier, one of the grounds for grant of bail to the appellant Anil Kumar Yadav by the Sessions Court was that he was in custody for more than one year. In crimes like murder, the mere fact that the accused was in custody for more than one year, may not be a relevant consideration”_ (emphasis supplied). 46. The following observations made by the Apex Court, in almost similar circumstances, in **Pratapbhai Hamirbhai Solanki v. State of Gujarat : (2013) 1 SCC 613** , give complete answer to the contentions raised by the petitioners regarding uncertainty of investigation and their right to be released on bail. The observations made by the Apex Court read as follows: _“On a perusal of the aforesaid order, it is demonstrable that the High Court has expressed its dissatisfaction with regard to the investigation conducted by the investigating agency. It has_ 32 B.A.Nos.3674 of 2020 & 3689 of 2020 _called it perfunctory. After ascribing reasons, it has directed the CBI to expeditiously undertake further investigation. We may hasten to add that the legal propriety of the said order is not the subject matter of challenge in the present appeal. It has only been brought to our notice that CBI has been directed to conduct a comprehensive investigation. Needless to state, it is open to the appellant to challenge the legal substantiality of the said order. But for the present, suffice it to say, as there is a direction for fresh investigation, it should be inapposite to enlarge the appellant on bail. We may add that in case the order for reinvestigation is annulled by this Court, it would be open for the appellant to file a fresh application for bail before the competent Court. If the order of the High Court withstands scrutiny, after the CBI submits its report, liberty is granted to the appellant to ” move the appropriate court for grant of bail ._ (emphasis supplied). 47. In the aforesaid circumstances, for the reasons stated earlier in this order, I find that the petitioners are not entitled to be released on bail at this stage. The petitioners are at liberty to file fresh application for bail in the competent trial 33 B.A.Nos.3674 of 2020 & 3689 of 2020 court/jurisdictional court after the disposal of Writ Appeal No.2216/2019 by the Division Bench of this Court, depending upon the result of that appeal. 48. Consequently, the bail applications are dismissed. Sd/- **R.NARAYANA PISHARADI, JUDGE** jsr