IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 28TH MAY 2008 / 7TH JYAISHTA 1930 Bail Appl..No. 3274 of 2008() ----------------------------- (CRIME NO.475/2007 OF THENHIPALAM POLICE STAION) PETITIONERS/3RD & 4TH ACCUSED: ----------------------------------------------- 1. RADHAKRISHNAN, AGED 45 YEARS, S/O. KUNHIKRISHNAN NAIR, NAGALATH HOUSE, MOODADI P.O., KOYILANDY. 2. KANAKESWARY, AGED 28 YEARS, D/O. DAMODHARAN NAMBIAR, MALOR HOUSE, KODANCHERY P.O., PURAMERI, VADAKARA. BY ADV. P.K,VARGHESE RESPONDENT: COMPLAINANT: ------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY D.G.P.SRI.P.G.THAMPI THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 28/05/2008, ALONG WITH BA NO. 3321 OF 2008 THE COURT ON 28/05/2008 PASSED THE FOLLOWING: K. HEMA, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - B.A.Nos. 3274 and 3321 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of May, 2008 O R D E R Petitioners in B.A. No.3274/2008 are accused 3 and 4 and petitioners in B.A. No.3321/2008 are accused 1 and 2 in the crime registered against them and another accused under sections 457, 380, 461 IPC. According to the prosecution, accused 1 to 4 hatched conspiracy in November and December, 2007 to commit burglary in South Malabar Gramin Bank, Chelembra Branch. Accordingly, the 1st accused took the building 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. 2. 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 BA Nos.3274/2008 & con.case -2- 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 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. 3. 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/-. BA Nos.3274/2008 & con.case -3- 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. 4. This application is strongly opposed by learned Director General of Prosecution Sri P.G.Thampi. It is submitted that two of the accused had jumped bail in other cases and the trial is pending since 2000 for want of the accused' presence. It is also submitted that accused 1 and 2 were in fact granted bail in those cases but absconded. The history being so, it is vehemently argued by the learned D.G.P. that the interest of justice will suffer if the accused are enlarged on bail in these types of cases. It will not be possible to complete trial without delay also. Regarding the 4th accused (the lady who is involved) it is submitted that her participation in the crime is clearly revealed by records and she had actively joined hands with all the BA Nos.3274/2008 & con.case -4- other accused by specific overt acts and therefore her release also is not conducive in the interest of justice, since she may not be available for trial. It is strongly argued that the benefit of the proviso may not be extended to an accused like the 4th respondent. 5. The learned counsel for the petitioners argued that as far as the accused 3 and 4 are concerned, they are not involved in any other crime. Regarding the 4th accused, it is submitted that she is a woman having a nine month old baby. It is argued that by virtue of the proviso to section 437, at least the 4th accused is entitled for bail, particularly taking into account the detention of the baby, which becomes inevitable due to the tender age. 6. On hearing both sides, I do not find any reason to grant bail to the petitioners. When an offence of this nature is reportedly committed which affects several customers of the bank, putting them to great hardship, I find that interest of justice will suffer if the petitioners are released on bail at this stage and trial is protracted for want of presence of accused. I am satisfied that petitioners may abscond and jump bail as revealed from the experience in earlier cases in which first and second accused are involved. 8. Regarding the 4th accused, I am of the opinion that in the interest of justice at large, the benefit of the proviso shall not be extended to her. The expression used in the proviso is “may” and not “shall”. It is the BA Nos.3274/2008 & con.case -5- discretion of the court to grant bail or not to a woman-accused. On considering the nature of the offence committed and particularly the manner in which it is executed, and the specific nature of involvement of the 4th accused, I am least inclined to grant bail to her. I am fully satisfied of all the submissions made by the Director General of Prosecution that there is every chance for the accused to abscond and evade the trial. Hence, the applications are dismissed. K. HEMA, JUDGE. mn.