Smith v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 17[TH] DAY OF MAY 2021 / 27TH VAISAKHA, 1943** **BAIL APPL. NO. 2423 OF 2021** Crime No.1225 of 2020 of Anthikkad Police Station, Thrissur ## **PETITIONER/S:** 0 SMITH AGED 44 YEARS S.O. SANKARANARAYANAN, KAREPARAMBIL HOUSE, PERINGOTTUKARA DESOM, KIZHAKUMURI VILLAGE, THRISSUR, PIN - 680565 BY ADVS.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921) SRI.M.S.ANEER ## **RESPONDENT/S:** 0 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 BY ADVS. PUBLIC PROSECUTOR DIRECTOR GENERAL OF PROSECUTION ## **OTHER PRESENT:** SRI.S.SAJJU-SRPP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 9.4.2021, THE COURT ON 17.05.2021, DELIVERED THE FOLLOWING: BA 2423/2021 -2- ## **O R D E R** ## **Dated, this the 17[th] day of May, 2021** [BA No.2423 of 2021] Successive application for regular bail under Section 439 Cr.P.C. 2. 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. His earlier bail application (BA No. 8651 of 2020) was dismissed, and he is again before this court seeking bail for reasons stated in this application. 3. To recap the prosecution case, the applicant is a person having criminal antecedents having ten criminal cases registered against him. He was involved in Chitty business and had rivals in the business, some of whom were his own men who had switched allegiance to the other side. For the purpose of collection of money due, use of force was often resorted to, and it also led to constant clashes between the rival gangs. The applicant had, due to the intensity in rivalry and increase in criminal cases against him, moved his residence to Goa, where he was ostensibly running a restaurant. His hold over the gang, and involvement in the activities nevertheless, continued unabated. 4. A member of his gang, namely Adarsh, was murdered by the rival BA 2423/2021 -3- gang to which the deceased Nikhil belonged, 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. 5. On 10.10.2020, Nikhil was murdered. On the basis of the statement given by the brother of the deceased, the Crime was registered. The facts state that on the date of occurrence, at about 11.15 AM, while the deceased was travelling in his car, it was intercepted by four persons, waylaid, pulled out of the car, in furtherance of common intention of the criminal conspiracy, and A1 to A6 allegedly hacked him with dangerous weapon like swords. 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 in the most brutal, merciless and diabolic manner possible. 6. 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 of this nature. He was earlier convicted for an offence punishable under Section 307 of the IPC. In the appeal he preferred, the sentence stands suspended. In retaliation, he allegedly gave specific instructions over the phone on 14.08.2020, and was present in person on BA 2423/2021 -4- 03.10.2020, for hatching the conspiracy as is borne out from the statements given by witnesses, who were closely associated with him. He thus invoked the conspiracy and abetment, accused 1 to 6 to carry out the sinister 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. 7. 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 since 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 of the applicant may not be essential for any purpose. Hence, the applicant reiterates his claim for regular bail. 8. Heard the learned counsel appearing for the applicant, Sri.S.Rajeev and the learned Senior Public Prosecutor, Sri.S.Sajju. BA 2423/2021 -5- 9. The learned Public Prosecutor points out that the applicant is a notorious criminal presently operating his gang from Goa. Though he is ostensibly conducting a restaurant in Goa, he keeps in constant touch with his men here and is monitoring the money lending business, which he still has, and operates through his goons. 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. But, the investigation has collected very important pieces of evidence linking the applicant to the conspiracy, and 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. 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 BA 2423/2021 -6- witnesses may not dare to testify against him, considering that he is capable of terrorizing them, submits the learned Public Prosecutor. Considering the various parameters while considering an application for bail enunciated _**in 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. 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]**_ , the earlier bail application was dismissed. Materials indicated that he was the kingpin and the mastermind of the attack. There are witnesses, who were close associates of the applicant. Some of them are 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 of 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, this court found that the applicant is not entitled to bail. The final report has already been filed on 07.01.2021 and is BA 2423/2021 -7- pending trial. The learned counsel for the applicant submits that in these pandemic times, the trial is likely to get protracted, and incarcerating the applicant will be prejudicial to his rights of liberty. 10. An accused, no doubt, has the right to make successive applications for grant of bail. But, the Court entertaining successive bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the Court also has a duty to record what are the fresh grounds which persuade it to take a view different from the one taken in the earlier applications (See _**Kalyan Chandra Sarkar v. Rajesh Ranjan, [2004 KHC 754 : AIR 2004 SC 1866**_ **]** ). 11. In _**Kalyan Chandra Sarkar v. Pappu Yadav, [2005 KHC 604 : AIR 2005 SC 921]**_ , the Apex Court has held as follows: “Even though there is room for filing a subsequent bail application in cases where earlier applications have been rejected, the same can be done if there is a change in the fact situation or in law which requires the earlier view being interfered with or where the earlier finding has become obsolete. This is the limited area in which an accused who has been denied bail earlier, can move a subsequent application” 12. Coming to the facts of the instant case, the prime reason for the successive bail is that the final report having already been filed consequent to BA 2423/2021 -8- completion of the investigation, there is no need for the continued detention of the applicant, states the learned counsel. Filing of the charge sheet on completion of investigation is not a change in circumstances sufficient to grant bail which was refused earlier. In _**Virupaksha Gouda & Another v. State of Karnataka & Another [2017 KHC 6239 : AIR 2017 SC 1685]**_ , the Apex Court held thus:- “13. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge - sheet is filed it amounts to change of circumstance. Needless to say, filing of the charge - sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge - sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge - sheet for trial of the accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal Sessions Judge after filing of the charge - sheet which was challenged in the High Court and that had travelled to this Court. These facts, unfortunately, have not been taken note of by the learned trial Judge.” 13. Placing reliance on the decisions of the Apex Court in _**Chaman Lal**_ _**v. State of U.P & Another [2004 (7) SCC 525]**_ **,** _**Prasanta Kumar Sarkar v. Ashis Chatterjee & Another [2010 (14) SCC 496]**_ and _**CBI v. V. Vijay Sai Reddy [2013(7) SCC 452]**_ , and the factors to be borne in mind while BA 2423/2021 -9- considering an application for bail as laid down in those decisions, the Apex Court in _**Virupaksha Gouda**_ (Supra) held that once the court has declined to enlarge the accused on bail, endeavours to project same factual score should not be allowed. The Apex Court has in _**Rajesh Ranjan Yadav@ Pappu Yadav v. CBI [2007 KHC 3002 : AIR 2007 SC 451]**_ held that the mere fact that the accused has undergone a long period of incarceration by itself would not entitle him to be enlarged on bail. The above decision was followed in _**Dinesh M N v. State of Gujarat [2008 KHC 4583 : AIR 2008 SC 2318]**_ . 14. Considering the facts and circumstances of the case in hand, I find no reason to reconsider the points on which the earlier bail application was rejected. I am sure that the trial court will earnestly strive to complete the trial expeditiously to take it to its logical conclusion. The bail petition is dismissed, once again. Sd/- **ASHOK MENON JUDGE** jg