IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 21ST AUGUST 2008 / 30TH SRAVANA 1930 Bail Appl..No. 5190 of 2008() ----------------------------- CRIME NO.475/08 OF THENHIPALAM POLICE STATION PETITIONERS ------------------ 1. RADHAKRISHNAN, 45 YEARS S/O.KUNHIKRISHNAN NAIR NAGALATH HOUSE, MOODADI PO., PURAMERI, VADAKARA. 2. KANAKESRY, 28 YEARS MALAR HOUSE, KODENCHERY PO., PURAMERY, VADAKARA. BY ADV. SRI.G.JANARDHANA KURUP (SR.) SRI.P.K.VARGHESE RESPONDENTS: --------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY DGP SRI.P.G.THAMPI PUBLIC PROSECUTOR C.K.SURESH THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.HEMA, J. ----------------------------------------- B.A.No. 5190 of 2008 ----------------------------------------- Dated this the 21st August, 2008 O R D E R This petition is for bail. 2. The alleged offences are under Sections 454, 457, 380, 461, 411, and 120B read with 34 of Indian Penal Code and Section 4(b) of the Explosive Substances Act. 3. This application is filed by accused 3 and 4 in the crime. As far as the third accused is concerned, this is the second application for bail and in respect of fourth accused, this is the third application of bail. Petitioners are in custody for the past 174 days. Charge sheet has been laid. Petitioners are not required for the purpose of investigation and hence, learned counsel for petitioners submitted that the petitioners may be released on bail. It is also submitted that the petitioners are husband and wife and they have a child, aged about 11 months. The child is also in the jail, in the company of the mother, who is the fourth accused. The fourth accused is entitled to bail as per the proviso to Section 437 Cr.P.C, being a woman. 4. This petition is strongly opposed. According to prosecution, accused 1 to 4 hatched a conspiracy in November and December, 2007 to commit burglary in South Malabar Gramin Bank, Chelembra Branch. Accordingly, the 1st accused took the building BA.No.5190/08 2 situated beneath the bank under the pretext to run a hotel. A hole was cut open by removing concrete portion of the floor of the bank by using marble cutter, concrete cutter and also explosive substances to facilitate the theft. The accused entered into the strong room of the bank through the hole and committed stolen 76967.099 grams of gold ornaments and Rs.24,93,809.50. The incident occurred on 29-12-2007 and 30-12-2007. A complaint was lodged by the Branch Manager on 31-12-2007 regarding the theft. 5. On investigation it was revealed that the possession of the hotel room was procured by one of the accused with a view to make entry into the strong room of the bank. The conspiracy was revealed through the phone calls made. First accused was arrested on 27-2- 2008 and recovery of certain gold ornaments weighing 18 k.gms. and Rs.3,50,000/- from the rented house of the 1st accused was effected. In house search certain mobile phones were also recovered. Second accused was arrested from the house of the 1st accused on 27-2-2008 and recovery of certain gold ornaments were effected through him also. Third accused was also arrested on the same day and stolen properties were recovered through him also. After the commission of offence accused also destroyed and tampered with the evidence by burning documents relating to pledging of gold ornaments. They threw off the implements used BA.No.5190/08 3 for house-breaking into a river. The stolen articles were removed in two vehicles, which were supplied by the 5th accused who is absconding. Accused 1 and 2 made the ploy by lodging a portion of the stolen article (one k.gm. of gold ornaments) at Deccan Residency Hotel, Hyderabad after planting some Andhra dailies in order to divert the investigation and writing the slogan “Jai Mavoist” in Malayalam. Certain articles were disposed of at Madras by accused 1 to 3. Certain gold ingots were also recovered pursuant to the statement made by accused 1 and 2. 6. First accused purchased a land in Bangalore in his wife's name for 12 lakhs and another plot in his mother-in-law's name for Rs.5,49,000/-. Liquid cash was also recovered from one Biju Dominic. The same was entrusted by accused 1 and 2 for purchase of land. The 2nd accused also purchased certain lands and the money was procured by selling stolen articles. Three vehicles were also purchased by the accused. Several other facts were also revealed by investigation. Scientific examination of the heirs found at the scene were done. The 4th accused who is a lady is also actively participated in the offence and she had also obtained money by using her influence for obtaining possession of the room beneath the bank for the 1st accused. Accused 1 to 4 were residing in a single house. Mobile phone analysis also prove the conspiracy. BA.No.5190/08 4 7. The learned Director General of Prosecution submitted that though the fourth accused is a lady, she has active role in the offence. She has sufficient connection with the first accused, who is actually involved in the offence. She is the person who has pledged her ornaments and raised money to procure the flat on rent. It is also submitted that a mobile phone was procured in the name of the accused and it was used by the first accused. It is also pointed out that a Scorpio car belonging to the fourth accused was used by the first accused and it happened to hit against a person, who died and in connection with the crime registered with respect to that incident. The fourth accused applied for release of the vehicle to her and the crime is registered as Crime No.559 of 2008 of Pithad Police Station. Therefore, it cannot be said that the fourth accused, being a lady, has no connection with the crime at all. It is also submitted that the stolen articles were seized from the house, which is in the joint possession of the third and fourth accused. It was also pointed out by the learned Director General of Prosecution that the first accused made an attempt to escape from custody while he was being taken from the jail to the court and it was with great difficulty that he could be apprehended later, it is submitted. 8. On hearing both sides, I find that petitioners had applied for bail earlier and the petition was dismissed. Therefore, except the BA.No.5190/08 5 number of days which elapsed, there is no change in the circumstances. In the earlier application I have considered in detail why bail has to be refused to the petitioners (vide order dated 28.5.2008 in B.A.No.3274 of 2008). I do not find any change in circumstance or any reason to come to a different conclusion at this stage. I am least inclined to grant bail to either of the accused since they are likely to abscond and they will also influence or threaten witnesses or tamper with evidence, if bail is granted. In the nature of allegations made against the fourth accused and the nature of the involvement in the offence, I find that the benefit of proviso to Section 437 Cr.P.C cannot be extended to her. The expression used in the proviso is 'may' and not 'shall'. Petition is dismissed. K.HEMA, JUDGE vgs.