APSEARA R v. STATE OF KERALA

1 BA No.1738 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 BAIL APPL. NO. 1738 OF 2024 ``` ``` CRIME NO.59/2024 OF Kannur City Police Station, Kannur PETITIONER/S: ``` ``` APSEARA R , AGED 23 YEARS D/O RAJAPANDIYAN, 349 RAMAN STREET, SATHYANAGAR, SAMUNDIPURAM WEST, TIRUPPUR, TAMIL NADU, PIN - 641603 ``` ``` BY ADVS. BASIL CHANDY VAVACHAN CHARUTHA BHAIJU GEORGIE SIMON CHANDHANA BHAIJU BASIL SAJAN FATHIM NAVAS KAVYA P.R. LEKSHMI PRIYA V. BASIL SCARIA ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` Sr PP Sri C.S Hrithwik ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1738 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1738 of 2024** ## **-----------------------------------** ## **Dated this the 14[th] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the third accused in Crime No.59/2024 of the Kannur City Police Station, Kannur, registered against the accused (three in number), for allegedly committing the offences punishable under Secs. 224, 225, 212, 216 and 120B read with Sec.34 of the Indian Penal Code. The petitioner was arrested on 22.2.2024. 2. The crux of the prosecution case is that: the first accused was convicted and sentenced to undergo ten years imprisonment for committing an offence under the NDPS Act, and he was undergoing imprisonment at the Kannur Central Jail. While he was undergoing imprisonment, he conspired 3 BA No.1738 of 2024 with the second accused, his nephew and the third accused, his friend, and in furtherance of their common intention, on 12.1.2024, the second accused went to the jail and took him on his motor cycle to the rented house of the third accused, who sheltered the accused 1 and 2. Thus, the accused have committed the above offences. 3. Heard; Sri.Basil Chandy Vavachan, the learned counsel appearing for the petitioner and Sri.C.S Hrithwik, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against her. The petitioner is the wife of the first accused. Even assuming the prosecution allegation to be true, all that the petitioner has done is to shelter her husband at her residence. Notwithstanding the above contention, by order dated 11.3.2024 in Crl M.C No.416/2024, the Court of Session, Thalassery, has enlarged the second accused on bail, 4 BA No.1738 of 2024 the person who had allegedly taken the first accused on the motor cycle from the jail to the house of the third accused. The petitioner is entitled to parity with the second accused. The petitioner is a lady and she has been in judicial custody since 22.2.2024. The investigation in the case is practically complete. Therefore, the petitioner’s further detention is not necessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. He submitted that it was the petitioner and the second accused, who facilitated the first accused to escape from the prison. The petitioner has no roots in the State of Kerala. If the petitioner is released on bail, there is every likelihood of her fleeing from justice and the case getting protracted. Hence, the application may be dismissed. 6. The prosecution allegation against the petitioner is that she sheltered the first accused to reside with her after he escaped from the prison. Indisputably, it was the second 5 BA No.1738 of 2024 accused who allegedly took the first accused on his motor cycle from the prison to the house of the petitioner. The second accused has been enlarged on bail by the Court of Session, Thalassery, by the above-stated order. The petitioner is at par with the second accused. Therefore, I am of the definite view that the petitioner’s further detention is unnecessary. 7. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar and the findings rendered above, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on her executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: 6 BA No.1738 of 2024 (i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. She shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while she is on bail; (iv) The petitioner shall surrender her passport, if any, before the court below at the time of execution of the bond. If she has no passport, she shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider 7 BA No.1738 of 2024 the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. sd/- sks/14.3.2024 **C.S.DIAS, JUDGE** 8 BA No.1738 of 2024 The name of the Police Station occurring in the first paragraph of the final order dated 14.3.2024 in BA No.1738/2024 stands corrected and substituted as ‘Kannur Town Police Station, Kannur” instead of “Kannur City Police Station, Kannur” as per order dated 19.3.2024 in Crl.M.A No.1/2024 in BA No.1738/2024. **Sd/-** **Joint Registrar**