KALLABHAI CHAGAN BHAI BABOOR v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 BAIL APPL. NO. 627 OF 2024 ``` ``` CRIME NO.30/2023 OF TOWN NORTH POLICE STATION, PALAKKAD AGAINST THE ORDER/JUDGMENT CRMC 5594/2023 OF DISTRICT COURT ``` ``` & SESSIONS COURT, PALAKKAD ``` ## **`PETITIONER/3RD ACCUSED:`** ``` KALLABHAI CHAGAN BHAI BABOOR AGED 45 YEARS S/O CHAGANBHAI BABOOR, RAMDUGARA PHALIYA, PANDADI, DAHOD, GUJARAT, PIN - 389152 ``` ``` BY ADVS. ANAND KALYANAKRISHNAN C.DHEERAJ RAJAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` SR PUBLIC PROSECUTOR SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`B.A. NO.627 OF 2024 2`** Dated this the 7[th] day of February, 2024 ## **ORDER** The petitioner, who is the 3[rd] accused in Crime No.30/2023 of the Town North Police Station, Palakkad, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 457, 461, 380, 201 r/w Section 34 of the Indian Penal Code, has filed the application under Section 439 of the Code of Criminal Procedure (in short, ‘Code’). The petitioner has been in judicial custody since 22.3.2023. 2. The prosecution case, in brief, is that; at around 11.30 p.m. on the intervening night of 6.1.2023 and 7.11.2023, the accused in furtherance of their common intention, broke open the back door of the house belonging to CW1 and committed theft of 3¼ sovereigns of gold ornaments having a value of ## **`B.A. NO.627 OF 2024 3`** Rs.1,30,000/- and also robbed Rs.1000/- which was kept in the almirah in the bed room of CW1. Thus, the accused have committed the above offences. 3. Heard; Sri.Anand Kalyanakrishnan, the learned counsel appearing for the petitioner and Smt. Neema T.V., the learned Senior Public Prosecutor. 4. The learned counsel for the petitioner vehemently argued that the petitioner is totally innocent of the accusation levelled against him. The petitioner has been falsely implicated in the crime that too solely on the basis of the alleged confession made by the first accused. There is no material to implicate the petitioner in the crime. The petitioner has been in judicial custody for the last 360 days. The investigation in the case is complete and the final report has been filed. The prosecution witness, CW1 was examined on 5.10.2023. The learned Magistrate, without assigning any reason as contemplated under Section 437(6) of the Code, has ## **`B.A. NO.627 OF 2024 4`** adjourned the trial beyond 60 days, which entitles the petitioner to be released on bail. The petitioner is willing to abide by any stringent condition that may be imposed by this Court. The petitioner has been released on statutory bail in two other crimes, which are registered against him by the same police station, as Crime Nos. 110/2023 and 126/2023, for committing similar offences. At any rate, the petitioner’s continued detention is not necessary. Hence,the application may be allowed. 5. The learned Public Prosecutor strenuously opposed the application. She contended that the petitioner is a person with criminal antecedents. The petitioner is involved in two other crimes of similar nature. The petitioner hails from Gujarat and has no roots in the State of Kerala. If the petitioner is released on bail, there is every likelihood of him fleeing from justice and determination of the case getting perpetually protracted. Hence, the application may be dismissed. ## **`B.A. NO.627 OF 2024 5`** 6. The petitioner had moved an application under Section 439 of the Code before the Court of Session, Palakkad as Crl.M.C. No.5594/2023. The learned Session Judge, by Annexure 3 order, dismissed the application on the finding that the petitioner is a habitual offender and the trial has commenced. 7. When the bail application came up for consideration on 31.1.2024, in view of the submission made by the learned counsel appearing for the petitioner that there is a violation of Section 437(6) of the Code, this Court had called for a report from the learned Magistrate to ascertain whether any reasons have been recorded for the adjournment of the trial beyond 60 days, after the examination of CW1. 8. Pursuant to the above order, the learned Magistrate, by communication dated 5.2.2024, has reported that, CW1 was examined on 5.10.2023. The prosecution has given up the examination of CWs2 and 3. ## **`B.A. NO.627 OF 2024 6`** CWs 4 to 14 (11 witnesses) have to be examined. The learned Magistrate has recorded the reasons in the report submitted to the Prison Reform Questionnaire, submitted to the Secretary of the District Legal Service Authority, Palakkad, that since the accused 1 and 3 hail from the State of Gujarat and are involved in many cases, that if they are released on bail, it would be difficult to procure their presence. However, she has not recorded the reasons in the order sheet as postulated under Section 437(6) of the Code. 9. The prosecution allegation is that, the accused 1 to 3 had broke open the back door of the house of CW1 and stole gold ornaments and money from there. The petitioner was arrested on 22.3.2023. 10 Indisputably, the petitioner is a person hailing from the State of Gujarat and has no roots in Kerala. It is also not disputed that the petitioner is an accused in Crime Nos.110/2023 and 123/2023 which are registered ## **`B.A. NO.627 OF 2024 7`** by the very same police station, for allegedly committing similar offences. However, since the final report was not laid, the petitioner has been enlarged on statutory bail in other two crimes. 11. Section 437(6) of the Code of Criminal Procedure reads as follows:- (6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. ## 12. A plain reading of the above provision shows that if the trial is not concluded from the first day fixed for taking evidence in the case, the accused have to be released on bail, subject to the satisfaction of the Magistrate, unless the reasons have been recorded in writing. ## 13. The contention of the learned counsel appearing ## **`B.A. NO.627 OF 2024 8`** for the petitioner was that, the learned Magistrate has not recorded the specific reasons to adjourn the trial beyond 60 days after the examination of CW1. It is evident from the materials placed on record that the trial in the case commenced on 5.10.2023, It is subsequent to the examination of CW1, the petitioner filed CMP No.6321/2023 under Section 437 of the Code, to be enlarged on bail. The learned Magistrate, by Annexure -2 order, dismissed the application, on the ground that the trial has commenced on the date of examination of CW1 and that the petitioner is a native of Gujarat. Therefore, there is a flight risk involved. 14. Assailing the said order, the petitioner filed Crl.M.C. No.5594/2023 before the Court of Session, Palakkad. The learned Sessions Judge, by Annexure-3 order, also dismissed the application, on the ground that the petitioner is a habitual offender and the trial has commenced. ## **`B.A. NO.627 OF 2024 9`** 15. A reading of Annexures 2 and 3 orders would substantiate that both the learned Magistrate and the learned Sessions Judge have stated specific reasons for dismissing the petitioner’s application for bail. Notwithstanding the above findings, the learned Magistrate has also mentioned in the Prison Reform Questionnaire that there is likelihood of the petitioner fleeing from justice, if he is released on bail. 16. In the above conspectus, I am of the definite view that there is substantial compliance of Section 437(6) of the Code by way of Annexure-2 order i.e. the petitioner’s continued detention is necessary, although the examination of CW1 had commenced on 5.10.2023 because the petitioner is a history-sheeter and there is flight risk. 17. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court has observed as follows:- ## **`B.A. NO.627 OF 2024 10`** **“4.** …….. ……. ……… ……… If the Court is satisfied, after taking into account, on the basis of information placed before it, that the accused has his roots in the community and is not likely to abscond, it can safely release the accused on his personal bond. To determine whether the accused has his roots in the community which would deter him from fleeing, the Court should take into account the following factors concerning the accused: “1. The length of his residence in the community, 2. his employment status, history and his financial condition, 3. his family ties and relationships, 4. his reputation, character and monetary condition, 5. his prior criminal record including any record of prior release on recognizance or on bail, 6. the identity of responsible members of the community who would vouch for his reliability, 7. the nature of the offence charged and the apparent probability of conviction and the likely sentence insofar as these factors are relevant to the risk of non-appearance, and 8. any other factors indicating the ties of the accused to the community or bearing on the risk of wilful failure to appear…… …. …..” 18. Admittedly, the petitioner hails from the State of Gujarat and has no roots in Kerala. There is no one to vouch for his reliability. He is an accused in two other cases. Therefore, I am satisfied that if the petitioner is released on bail, there is a likelihood of him fleeing from ``` B.A. NO.627 OF 2024 11 ``` justice and the determination of the case getting perpetually delayed. 19. Likewise, in **Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another,** [(2004) 7 SCC 528], the Honourable Supreme Court has categorically held that the mere fact that the accused has undergone a certain period of incarceration or that the trial has not concluded by itself would not entitle the accused to be enlarged on bail. 20. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Another** [(2010) 14 SCC 496], in paragraph 9, the Honourable Supreme Court has observed as follows: “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation: (iii) severity of the punishment in the event of conviction; ## **`B.A. NO.627 OF 2024 12`** (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” ## 21. Again, the Honourable Supreme Court in **Kalyan** ## **Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav and another** [AIR 2004 SC 1866] has held thus: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or ## **`B.A. NO.627 OF 2024 13`** apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. See Ram Govind Upadhyay v. Sudarshan Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)” 22. On an anxious consideration of the facts, materials placed on record, rival submissions made across the Bar, and the law referred to in the afore-cited decisions, and on comprehending the nature, gravity and seriousness levelled against the petitioner, that the petitioner is a person with criminal antecedents, and that there is reasonable apprehension of the petitioner fleeing from justice and that the petitioner does not have roots in the State of Kerala, I am of the definite view that the petitioner is not entitled to be released on bail. Nonetheless, taking into account the fact that CW1 was examined on 5.10.2023, and the prosecution has given up CWs2 and 3, that petitioner has been in incarceration for the last 360 days and the mandate under Section 437(6) of the Code, I am of the firm view that the learned ## **`B.A. NO.627 OF 2024 14`** Magistrate is to be directed to dispose of C.C. No.84/2023 as expeditiously as possible and in accordance with law. In the result: - i The bail application is dismissed; - ii The Chief Judicial Magistrate, Palakkad is directed to consider and dispose of C.C.No.84/2023, in accordance with law and as expeditiously as possible, at any rate, within a period of four months from the date of receipt of a certified copy of the order. Iii The Registry is directed to forward a copy of this order to the court below for compliance. ## **SD/-** ## **C.S.DIAS, JUDGE** rmm7/2/2024