Rahul Singh, Ankoor, and Omprakash v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945** ## **BAIL APPL. NO. 1173 OF 2024** **CRIME NO.1488/2023 OF ADOOR POLICE STATION, PATHANAMTHITTA** **AGAINST THE ORDER/JUDGMENT BAIL APPL. 151/2024 OF HIGH COURT OF KERALA** ## **PETITIONERS/ACCUSED NO.1 TO 3:** **1 RAHUL SINGH AGED 29 YEARS S/O. THEHASILDAR SINGH, AMIT VIHAR, GADIJEEVANRAM, BHAGIYAYIL, HATHRAS, KUMBEERPOOR, AGRA, UTTAR PRADESH., PIN - 204101 2 ANKOOR AGED 29 YEARS S/O. RAJKUMAR, JELESAR, JELESAR P.O., ETTA, UTTAR PRADESH., PIN - 207302 3 OMPRAKASH AGED 51 YEARS S/O. THEHASILDAR SINGH, NO. Q-2/1, BUDHVIHAR, SULTHANPURI BLOCK, NORTH WEST DELHI, NEW DELHI., PIN - 110086** **BY ADVS. MATHEW KURIAKOSE T.G.SUNIL (PERUMBAVOOR) C.N.PRAKASH J.KRISHNAKUMAR (ADOOR) SHAJI P.K. ARUN.S. PREETHU JAGATHY** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL.NO.1173 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure (in short, ‘Code’) by the accused 1 to 3 in Crime No.1488/2023 of the Adoor Police Station, Pathanamthitta registered against the accused for allegedly committing the offences punishable under Sections 457, 467 and 380 r/w. S.34 of the Indian Penal Code. The petitioners were arrested on 06.11.2023. 2. The crux of the prosecution case is that, between 23 hours on 18.10.2023 and 3 hours on 19.10.2023, the accused in furtherance of their common intention removed the roof sheets of a shop named 'Karikkineth Silks Galleria' functioning in Adoor Municipality and entered the shop and committed theft of Rs.3 lakh, two sovereigns of gold ornaments, ladies watches and other garments. In the investigation that was conducted, it was revealed that it was the accused who committed the above offences. Consequently, the accused were arrested on 06.11.2023. **BAIL APPL.NO.1173 OF 2024** **3** Thus, the accused have committed the above offences. 3. Heard; Sri. Mathew Kuriakose, the learned counsel appearing for the petitioners and Smt.Seetha S, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime merely on the basis of suspicion. The petitioners have been in judicial custody since 06.11.2023. The investigation in the case is complete, recoveries have been effected and final report has been laid. Therefore, the petitioners' further detention is not necessary. Hence, the petitioners may be enlarged on bail. 5. The learned Public Prosecutor strenuously opposed the application. She contended that the petitioners are history sheeters. They are involved in four other crimes of similar nature. The petitioners are natives of north-India and have no roots in the State of Kerala. If the petitioners are enlarged on bail, there is every likelihood of them fleeing **BAIL APPL.NO.1173 OF 2024** **4** from justice. Moreover, the investigation in the case is complete and the final report has been laid. The jurisdictional court may be directed to try the case against the petitioners as under trial prisoners. Hence, the application may be dismissed. 6. The prosecution allegation is that the accused in furtherance of their common intention broke open into a garment shop by removing the roofing sheets and committed theft of Rs.3 lakh, gold ornaments, watches and other garments. It is revealed that the petitioners are the accused in the following crimes: - 1) Crime No.617/2022 of the Kottiyam Police Station. - 2) Crime No.1652/2022 of the Kunnamkulam Police Station. - 3) Crime No.1182/2023 of the Sulthan Bathery Police Station. - 4) Crime No.393/2022 of the Thiruvananthapuram Fort Police Station. Indisputably, the petitioners are all natives of Uttar Pradesh **BAIL APPL.NO.1173 OF 2024** **5** and Delhi. 7. The petitioners had moved a similar application before the Court of Sessions as Crl.M.C.No.398/2024. By Annexure 3 order, the learned Sessions Judge dismissed the application principally on the ground that the petitioners have criminal antecedents and they have no roots in the State of Kerala. 8. In **Hussainara Khatoon (I) v. Home Secy., State of Bihar** [(1980) 1 SCC 81], the Honourable Supreme Court has observed as follows: “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 **BAIL APPL.NO.1173 OF 2024** **6** 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…… …. …..” 9. Similarly, in **Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Another** , [(2004) 7 SCC 528] the Hon'ble Supreme Court has held that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded shortly by itself would not entitle the accused to be enlarged on bail. 10. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.** [(2010) 14 SCC 496], 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 **BAIL APPL.NO.1173 OF 2024** **7** 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 danger, of course, of justice being thwarted by grant of bail.” 11. Subsequently, in **Kalyan Chandra Sarkar** ’s case, the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be **BAIL APPL.NO.1173 OF 2024** **8** looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the witnesses by the accused. 12. In **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], the Hon'ble Supreme Court has held thus: “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine **BAIL APPL.NO.1173 OF 2024** **9** whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” 13. It is also worth recollecting the observations made by the Hon'ble Supreme Court in **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr** [(2012) 9 SCC 446] in the following lines: “30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be enlarged on bail or not and only thereafter issue of imposing **BAIL APPL.NO.1173 OF 2024** **10** conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.” 14. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar and the proclamation of the law in the aforecited precedents and on prima-facie being satisfied that the accusations levelled against the petitioners seem to be correct, and on comprehending the nature, seriousness and gravity of the accusations levelled against the petitioners, the potential severity of the punishment that is likely to be imposed on them, the criminal antecedents of the petitioners and the reasonable apprehension projected by the prosecution that the petitioners may flee from justice because they have no roots in the State of Kerala, I am of the **BAIL APPL.NO.1173 OF 2024** **11** definite view that the petitioners are not entitled to be released on bail because there is every likelihood of justice being thwarted and their release having a deleterious impact on the society. Hence, I hold that the application is meritless and is only liable to be rejected. Resultantly, the application is dismissed. Sd/- **C.S.DIAS** **JUDGE** ## **shg**