SMITH v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 18TH DAY OF JANUARY 2021 / 28TH POUSHA, 1942** **Bail Appl..No.8651 OF 2020** **CRIME NO.1225 OF 2020 OF ANTHIKKAD POLICE STATION, THRISSUR** ## **PETITIONER/ACCUSED:** **SMITH, AGED 44 YEARS, S.O. SANKARANARAYANAN, KAREPARAMBIL HOUSE, PERINGOTTUKARA DESOM, KIZHAKUMURI VILLAGE, THRISSUR PIN-680565 BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921)** **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PIN-682031** **R1 BY PUBLIC PROSECUTOR R1 BY DIRECTOR GENERAL OF PROSECUTION** **SRI.S.SAJJU – SR.PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 18.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **B.A.No.8651 OF 2020** **2** ## **ORDER** **Dated this the 18th day of January, 2021** ## **APPLICATION FOR REGULAR BAIL** The applicant is the 7[th] accused in Crime No.1225 of 2020 of Anthikkad Police Station, Thrissur, for having allegedly committed offences punishable under Sections 341, 302, 392, 506(ii), 212, 120B, 109 read with Section 34 of the IPC. The prosecution case, in brief, is this: 2. The applicant was running a Chitty business and in running that business, he was involved in various criminal cases. 10 crimes were registered against him in connection and he had rivals in the business. Goons were employed for the purpose of collection of money due, and it was a network, in which there were constant clashes between the rival gangs. On 10.10.2020, a person named Nikhil was murdered. On the basis of the statement recorded by the brother of the deceased, Crime was registered. The facts state that on the date of occurrence, at **B.A.No.8651 OF 2020** **3** about 11.15 AM, while the deceased was travelling in his car, it was intercepted by four persons. He was pulled out of the car and thereafter A1 to A6 allegedly butchered him with a dangerous weapon like swords and killed him. The nature of the assault as explicit from the autopsy report indicates that the deceased had sustained 35 fatal out of 69 ante mortem injuries. The young man was thus butchered to death in broad daylight in a public road. 3. It is alleged that the applicant was the key conspirator and abettor. Being a criminal involved in many crimes, he had no qualms about getting involved in criminal activities. He was convicted for an offence punishable under Section 307 of the IPC. He preferred an appeal and the sentence has been suspended. Though he shifted his residence to Goa and is allegedly running a restaurant there, he did not sever his relationship with his gang of goons in Kerala. He kept in constant touch with them. One of their men, namely Adarsh, was murdered by the rival gang to which the deceased belonged. As retaliation, a conspiracy was hatched under the leadership of the applicant and he allegedly gave specific **B.A.No.8651 OF 2020** **4** instructions over the phone on 14.08.2020, and was present in person on 03.10.2020, for hatching the conspiracy as is borne out from the statements given by witnesses, who were closely associated with him. As a result of the conspiracy and abetment, accused 1 to 6 carried out the designs of the conspiracy, resulting in the gruesome murder. All the accused were arrested, some of the accused who had allegedly harboured the accused persons were later released on bail. the rest of them continue in custody. 4. The applicant states that he was not personally present. The conspiracy will have to be proved by cogent evidence. The applicant has been in Goa for the last four years and more and has not been involved in any crime consequent to 2018. Under the circumstances, it has to be believed that he has been reformed. Just because he visited his native place on a solitary day, a week prior to the date of occurrence, it cannot be assumed that the applicant had hatched the conspiracy with the other accused to annihilate the deceased. The applicant was arrested on 20.10.2020 and has been in custody since then. His custodial interrogation is over. And, therefore, further detention **B.A.No.8651 OF 2020** **5** of the applicant may not be essential for any purpose. Hence, the applicant seeks regular bail. 5. Heard the learned counsel appearing for the applicant, Sri.S.Rajeev and the learned Senior Public Prosecutor, Sri.S.Sajju. 6. The learned Public Prosecutor points out that the applicant is a notorious criminal having plenty of crimes registered against him. But, presently, he has been operating his gang from Goa. He is ostensibly conducting a restaurant in Goa. But, keeps in constant touch with his men here and is monitoring the money lending business, which he still has, which he is operating through his goons. It is in this connection that one of his persons namely Adarsh was murdered and he wanted retaliation to teach the rival gang a lesson. And, thus, the conspiracy was hatched, and he was present in person to give all necessary instructions and abetted accused Nos. 1 to 6 and get the job done in the most brutal, heinous and diabolic manner imaginable. The applicant has kept his hands clean by disassociating himself with the alleged crime and claims that he has been residing away from all these and has no connections. **B.A.No.8651 OF 2020** **6** But, the investigation has collected very important pieces of evidence linking the applicant to the conspiracy, his presence has been confirmed by the statements of persons, who are very closely associated with him. Tower location of his mobile phone also confirms it. All these would indicate that the applicant has no intention to sever his relationship with the criminal gang which he leads. 7. It is pointed out by the learned Public Prosecutor that the applicant is a prime financier of the criminal gang to which it belongs. His operators are based in Kerala, though he himself is staying in Goa. He still continues to be the mastermind. His involvement in other crimes also will have to be investigated. And, therefore, the learned Sr. Public Prosecutor submits that in case, the applicant is released on bail, there is every possibility of him being a threat to the witnesses and he may extensively tamper with evidence. Keeping his criminal background, the witnesses may not dare to testify against him, considering that he is capable of terrorizing them, submits the learned Public Prosecutor. It has to be borne in mind that while considering an application for bail, these important points are to be kept in **B.A.No.8651 OF 2020** **7** mind: 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 acquisition. III) Severity of the punishment in the event of a conviction. IV) Danger of 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, intimidated or tampered with. VIII) Danger, of course, of justice being thwarted by grant of bail. (See _**State of U.P through CBI v. Amarmani Tripathi (2005) 8 SCC 21, Prahlad Singh Bhati v. NCT, Delhi and Another (2001) 4 SCC 280, Ram Govind Upadhyay v.**_ **B.A.No.8651 OF 2020** **8** _**Sudarshan Singh and Others (2002) 3 SCC 598**_ ) and the more recent decisions of _**Prasanta Kumar Sarkar v. Ashis Chatterjee and Another 2010 KHC 4835 and Neeru Yadav v. State of UP and Another 2014 KHC 5361**_ . 8. All these put together, the applicant does not stand a chance of being released on bail. His role is that of being the key conspirator and abettor. He is alleged to be the kingpin and the mastermind of the attack. There are witnesses, who were close associates of the applicant. Some of them his former employees. In case, the applicant is released on bail, they run the risk of their lives because the applicant is capable of anything. Not only that, in case, the applicant is released on bail, there is every possibility of retaliation by the opposite rival group of criminals. Within the limits of Anthikkad Police Station, there have been constant instances of breach law and order, involving skirmishes between rival gangs who have been at war striking at regular intervals. Taking all these facts and circumstances into consideration, I find that the applicant is not entitled to bail. The final report has already been filed on 07.01.2021 and is pending **B.A.No.8651 OF 2020** **9** committal proceedings as C.P.No.5 of 2021. I am sure that the committal court, and thereafter the trial court would expedite disposal of the case since most of the accused are still in remand. In case, the trial is protracted beyond reasonable limits, the applicant is at liberty to approach the jurisdictional court again for bail. Reserving this right, I dismiss this bail application. **Sd/ASHOK MENON JUDGE** NR/18/01/2021