Kishore M S v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 14[TH] DAY OF FEBRUARY 2024 / 25TH MAGHA, 1945 BAIL APPL. NO. 1044 OF 2024 ``` ``` CRIME NO.34/2024 OF MANNANTHALA POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER IN CMP 95/2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS -V, THIRUVANANTHAPURAM(SPECIAL COURT-MARKLIST CASES) ``` ## **`PETITIONER:`** ``` KISHORE M S AGED 42 YEARS S/O MOHANAKUMAR CHANDRODAYAM HOUSE NEAR VENGAVILA BLOCK OFFICE POOVATHOOR P O NEDUMANGAD, PIN - 695561 ``` ``` BY ADV L.RAJESH NARAYAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SR PP SMT SEETHA S ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B. A No.1044 of 2024 2 **Dated this the 14[th] day of February, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the third accused in Crime No.34/2024 of Mannanthala Police Station, Thiruvananthapuram registered against the accused (four in number) for allegedly committing the offences punishable under Sections 409, 420, 120 (b) and 34 of the Indian Penal Code. The petitioner was arrested on 15.01.2024. 2. The essence of the prosecution case is that: on 04.11.2023 at 12 p.m. the 1[st] accused who was the former Branch Manager of the Catholic Syrian Bank, Nalanchira Brach took 1727.77 grams of gold ornaments having a value of Rs.96,23,678/- from the strong room of the bank and handed over the same to the 2[nd] accused who in turn gave it to the 3[rd] accused. Thereafter, the 4[th] B. A No.1044 of 2024 3 accused replaced the stones and pearls of the said ornaments and melted the gold ornaments in his house. Subsequently, the gold was taken for testing its purity. Thereafter, the gold was sold to the Kerala Jewelery, East Fort and the accused shared the profit between them. Thus, the accused have committed the above offences. 3. Heard Sri.Rajesh Narayan, learned counsel appearing for the petitioner and Smt. Seetha S., the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. The petitioner has not committed any offence. The petitioner has been falsely implicated in the crime. The petitioner has been in judicial custody since 15.01.2024. The investigation in the case is practically complete. The recovery has been effected. The petitioner is only a subordinate to the first B. A No.1044 of 2024 4 accused and had listened to the directions of the first accused. Therefore, the petitioner cannot be placed at par with the first accused. The petitioner is willing to abide by any stringent conditions that may be imposed by this Court. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the accused have committed a economic grave offence by misappropriating the gold ornaments of the customers and, thereafter, selling and sharing the profit. The accused 3 and 4 have also sold certain gold ornaments also. The investigation in the case is in progress. The recovery has to be effected. If the petitioner is let off on bail, there is every likelihood of him influencing the witnesses and tampering with the evidence. Hence, the application may be dismissed. 6. On an appreciation of the materials placed on record, it is seen that there are specific overt acts B. A No.1044 of 2024 5 alleged against the petitioner, that he, along with the 4[th] accused, sold certain gold ornaments belonging to the customers of the bank after hatching a conspiracy with the accused 1 and 4. 7. 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; (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 B. A No.1044 of 2024 6 grant of bail.” ## 8. 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 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)” B. A No.1044 of 2024 7 9. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar, especially on comprehending the seriousness, gravity and nature of the offences alleged against the petitioner, that the investigation in the case is still in progress, that the recovery is to be effected, I am of the definite view that the petitioner is not entitled to be released on bail at this stage because there is a danger of justice being thwarted. Therefore, I hold that the application is only liable to be dismissed. Resultantly, the application is dismissed. **C.S.DIAS, JUDGE** mtk/14.02.24 B. A No.1044 of 2024 8 ## **`APPENDIX OF BAIL APPL. 1044/2024`** ``` PETITIONER ANNEXURES ``` ``` ANNEXURE A/1TRUE COPY OF THE FIR NO.34/2024 DATED 13.1.2024 OF THE MANNANTHALA POLICE STATION ``` ``` ANNEXURE A/2TRUE COPY OF THE ORDER DATED 2.2.2024 IN CMP 95/2024 OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, (SPECIAL COURT FOR THE MARKLIST CASES), THIRUVANANTHAPURAM ```