Sujeesh vs State Of Kerala

K.Haripal, J

These are applications for regular bail moved by some of the accused persons in crime 146/2021 of Kodakara police station which was registered

alleging offence under Sections 120B, 395, 212 and 412 of the Indian Penal Code. The genesis of the crime is an incident that happened at 4.40 a.m.

on 03.04.2021 near the Kodakara over-bridge on the National Highway, NH-544. It is alleged that while the informant Shamjeer along with accused

No.16, was moving in Ertiga car KL-56G 6786 from Kozhikode to Ernakulam, accused Nos.1 to 7 chased them in three cars and at the place of

occurrence intercepted the said Ertiga car, pulled out CW1 and the 16th accused, manhandled them, smashed the windowpane of the car and driven

away the car. The car was taken to the residence of the 9th accused where, an amount of Rs.3.5 crores concealed in the secret chambers of the car

was looted by accused persons and the looted amount was divided among the accused persons. The crime was registered on 07/04/2021 alleging that

an amount of Rs.25 lakhs was looted by some of the accused persons. But during the course of investigation it came out that money involved was

Rs.3.5 crores and on that basis investigation was entrusted with a special team headed by the respondent the Deputy Superintendent of Police,

Chalakudy, who, after completing the investigation, laid the charge sheet against 22 accused persons. These bail applications were filed when

investigation was at the final stage. After completing the investigation, charge sheet has since been laid and the case is now pending before the

Judicial First Class Magistrate Court-I, Irinjalakuda.

I heard learned counsel for the petitioners and also the learned Additional Director General of Prosecution. The following table will give a brief idea

about the number of cases, the rank of the accused persons and the respective dates of their arrest.

Sl.No.             Case No.                     Rank of accused         Â

Date of arrest  Remarks

1.                   BA.5149/21                 A2

                              04.05.2021 Â

2.                    BA.5226/21                 A20

                            20.05.2021       Wife of A3

3.                   BA.5231/21                 A8

                              29.04.2021 Â

                   BA.5711/21                 A5}     Â

                                                        Â

A7} Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 26.04.2021Â Â

                                                         Â

A9}Â Â Â Â Â Â

                   BA.5759/21                 A10

                            26.04.2021 Â

6.                    BA.5993/21                 A12

                            29.04.2021 Â

                                                         Â

A16 Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 01.05.2021Â Â

                                                         Â

A21 Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â 03.06.2021Â Â

The learned counsel for the petitioners wanted to say that the petitioners are innocent; they have been falsely implicated, that they did not play any

role in the alleged commission of the crime. According to the learned counsel for the 2nd accused it is a political gimmick played by two prominent

political parties, that both of them have no bonafides in bringing out the actual facts of the case. According to him, the amount allegedly involved is

hawala money. It is unaccounted money which was being transported to be used for the election that was scheduled to the legislative assembly

immediately after the incident and that was why the defacto complainant was hesitant in alerting the police. The police also plays hide and seek game

at the instance of higher-ups and is not interested in bringing to book actual culprits. The 2nd accused has also raised a contention that 'since it is

unaccounted money, the person who is legally entitled to possess the amount is still a mystery; unless there is claim of legal possession of the stolen

article by a person who is legally entitled to possess the same, any amount of proof regarding taking away of the booty cannot amount to theft. When

there is no theft, further act will not constitute dacoity since without proof of theft the offence under dacoity will not be legally sustainable for want of

sufficient ingredients to attract dacoity'.

It was also pointed out that even though passengers of the vehicle were allegedly manhandled and pulled out, they did not obtain treatment from any

hospital. According to the learned counsel, what is filed before the Magistrate court is only an interim report and there is no guarantee that any further

investigation is going on, or when that investigation will be completed. The learned counsel for other petitioners supported the arguments and wanted

to highlight that all the petitioners are innocent.

On the other hand, the learned Additional Director General of Prosecution opposed the applications. According to him, it is true that even though the

incident had happened on 03.04.2021 at 4.45 a.m., the matter was reported to the police only on the 4th day, that is on 07.04.2021, following which the

crime was registered and investigation was commenced. But the learned Additional Director General further submitted that large scale conspiracy is

involved in different districts of the State, namely Kannur, Kozhikode and Thrissur; accused Nos.1 to 7 had come in three vehicles, sandwiched the

Ertiga car driven by Shamjeer, and at the place of occurrence the car travelled by Shamjeer and A16 was intercepted, both the passengers were

pulled out and the car itself was driven away to the residence of the 9th accused where the booty, Rs.3.5 crores which was concealed in a secret

chamber of the car was divided among the accused persons. Accused No.16 had alerted other accused and others were monitoring the movement of

the car from Kozhikode onwards. According to the learned ADGP, even though nearly Rs.1.46 crores is recovered, balance amount is yet to be

recovered for which investigation will continue. The learned Additional Director General also pointed out that most of the witnesses to the recovery

are related to the petitioners so that for a successful prosecution, if petitioners are released at this stage, that would hamper the fate of the case.

Now the final report is laid in the crime. Accused belong to different districts of the State, namely Malappuram, Kozhikode, Thrissur and Kannur.

One of the accused hails from Karnataka. Commission of the crime was an offshoot of a large scale conspiracy hatched at different levels and places

by different gangsters. As rightly pointed out by the counsel, even though the incident had happened on 03.04.2021 at wee hours, and despite the fact

that large amount was involved, the defacto complainant was hesitant to report the matter to the police. The place of occurrence is on the National

Highway at a call distance from Kodakara police station. Still the police was not alerted. Informant returned to Kozhikode as if nothing had happened.

Later the police was alerted after much deliberation about the dacoity on 07.04.2021 at 9.55 p.m. stating that Rs.25 lakhs carried in the car was looted

by seven identifiable persons. But the investigation opened a pandora's box. It came out that the amount carried in the car was Rs.3.5 crores. Large

chunk of money remains to be traced. Amounts as well as some gold ornaments which were purchased using the booty were recovered, but still

substantial amount is not recovered. Whatever it may be, now the charge sheet has been laid. Number of vehicles used by the accused have been

traced and seized. All the 22 accused persons have been arrested. The purpose in detaining the petitioners still in judicial custody is not convincing.

Even though such a highway robbery is not known to Kerala culture, so long as final report is laid, overwhelming reasons are not made out for the

continued detention of the petitioners.

Moreover, it is a known fact that Sessions Courts in Thrissur are overburdened. Even though Fast Track Courts were established in the district as

in other districts, may be because of swelling of Sessions Cases and other criminal cases in the district, the burden of Sessions Courts is not yet eased.

In the circumstances, it is unlikely that the courts will be able to take up the case of the petitioners in the near future. Indefinite detention of the

petitioners in prison is against public policy also.

After having laid the charge sheet, even if it is state that the investigation would continue, the learned ADGP could not convince me that for that

purpose detention of the petitioners would serve any purpose. The apprehension of the prosecution that the accused may flee from justice can be

addressed by imposing appropriate conditions.

It is true that the learned Additional Director General of Prosecution has submitted that a Special Public Prosecutor has already been appointed. To

my specific query he said that the Government has not yet contemplated in establishing a special court for the trial of the case. After having

considered rival aspects, I do not think that it is expedient in the interest of justice to detain the petitioners in judicial custody indefinitely. Therefore,

these applications are allowed and the petitioners shall be released on bail, on the following conditions:

i) The petitioners shall execute bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the

jurisdictional court;

ii) They shall surrender their passports within ten days from the date of release on bail before the jurisdictional court. If they do not possess passports, affidavits

shall be filed to that effect;

iii) They shall not try to contact or influence the witnesses or tamper

with the evidence;

iv) They shall not enter Thrissur revenue district except for the purpose of attending courts, until further orders;

v) They shall not involve in any crime during the period on bail;

vi) They shall appear before the jurisdictional court/committal court as and when required;

vii) The petitioners shall strictly abide the various guidelines issued by the State and Central Governments with respect to keeping of social distancing in the wake of

Covid 19 pandemic;

viii) If any of the above conditions are violated by the petitioners, the jurisdictional court will be at liberty to cancel the bail in accordance with law.

The bail applications are allowed as above.