## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**FRIDAY, THE 21ST DAY OF AUGUST 2020 / 30TH SRAVANA, 1942**
## **Bail Appl..No.5215 OF 2020**
**CRIME NO.2295/2017 OF ERNAKULAM NORTH POLICE STATION, ERNAKULAM**
## **PETITIONER/ACCUSED:**
**M D ELASH SIKARI AGED 33 YEARS OCC- LABOURER, NASABARI, CHALITABUNIA, MORRELAGANJ, BAGERHAT, BANGALADESH 930064**
**BY ADVS. SRI.B.A.ALOOR SRI.K.P.PRASANTH SHRI.JOBIN ABRAHAM SHRI.BIJU ANTONY ALOOR**
## **RESPONDENT:**
## **STATE OF KERALA**
**REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 682031**
## **BY SRI.SANTHOSH PETER, SR.GP.**
**THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 21.08.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**B.A. No.5215 of 2020 2**
## **O R D E R**
**Dated this the 21st day of August 2020**
...
## **O R D E R**
**This Bail Application filed under Section 439 of Criminal Procedure Code (Cr.P.C) was heard through Video Conference.**
**2. The petitioner is the accused in C.P.No.8 of 2020 on the file of the Additional Chief Judicial Magistrate Court, Ernakulam. The above case is registered alleging offences punishable under Section458, 459, 460, 326, 395 of the Indian Penal Code (IPC). Section 14 of the Foreigners Act is also alleged against the petitioner.**
**3. The arrest of the petitioner in this case is recorded on 27.2.2019. The prosecution case is that, the 1[st] accused, who is a citizen of Bangladesh came to India without any travel documents and associated with the other accused for commission of house breaking and dacoity. It is alleged that on 15.12.2017 at about 3.30 a.m., the petitioner along**
**B.A. No.5215 of 2020 3**
**with four others broke opened the front grill of the house of charge witness No.1 situated by the side of Kottekanal road in Kaloor kara in Ernakulam Village by using a sharp edged iron rod, screw driver and a log. Thereafter, the accused trespassed into the house and CW2 was caught hold of by the 1[st] accused and other accused who was pulled down and his legs were tied together by using clothes. Thereafter, CW2 was kicked on his chest and his head was covered with a dothi and was strangulated and intimidated. It is alleged that, CW3 was subjected to grievous hurt as her right index finger was twisted and broken. CW3 was also covered with a cloth which was put over her head and she was pressed on her neck with an iron rod. It is alleged that a gold chain weighing 2 sovereigns and 2 gold bangles weighing 1½ sovereigns each were subjected to dacoity which were wore by CW3 having a total value of Rs.1 lakh. It is alleged that, 8[th] accused intimidated CW1 by showing an object like a gun.**
**4. Heard the learned counsel for the petitioner and the learned public prosecutor.**
**B.A. No.5215 of 2020 4**
**5. The counsel for the petitioner submitted**
**that, the investigation in this case is over. The counsel submitted that, the charge sheet is submitted before the court. Now the case is pending before the committal court. The counsel submitted that, the petitioner is in custody for the last several months in this case. The counsel submitted that, he was implicated in a case at Kannoor. Thereafter, he was implicated in the present case. The counsel submitted that, he was already released on bail by a court at Kannoor. The counsel submitted that, the petitioner is a Bangladesh national but that may not be a reason to reject the bail to the petitioner. The counsel submitted that, even if the entire allegations in the charge sheet are accepted, no offence is made out against the petitioner. The counsel submitted that, since the charge sheet is already filed in this case, there is no question of custodial interrogation. The counsel submitted that, the petitioner will not leave Kerala till trial is over. The counsel submitted that, the visa and passport of the petitioner is already produced before the police. The**
## **B.A. No.5215 of 2020 5**
**counsel submitted that since the petitioner is already released on bail in one case, there may not be any discrimination by this Court by rejecting this bail application in this case. The counsel submitted that, the other accused in this case are already released on bail. The counsel submitted that, some of the accused in this case are Bangladesh nationals and they were already released on bail. In such circumstances, the counsel submitted that, the denial of bail to the petitioner alone is an injustice to the petitioner. The counsel submitted that, the wife of the petitioner is in Delhi. The counsel submitted that, for the last several months, the petitioner is languishing in jail. The counsel submitted that, the petitioner may be released on bail even on stringent conditions. The counsel submitted that, the petitioner is ready to abide any conditions if this Court granting bail to the petitioner.**
**6. The learned public prosecutor seriously opposed this bail application. The public prosecutor submitted that, there are altogether 12 accused in this case and six of them are Bangladesh nationals**
## **B.A. No.5215 of 2020 6**
**and three of the accused are Indian citizens. The learned public prosecutor submitted that, the accused who are Indian citizens were released on bail. The Bangladesh nationals, who are accused in this case are not released on bail. The public prosecutor submitted that, the allegations against the petitioner are very serious. The public prosecutor submitted that, if the petitioner is released on bail, he will abscond. The public prosecutor submitted that, in this case, the victim identified the petitioner during the course of investigation. The public prosecutor submitted that, it is a clear case in which the prosecution will be able to prove the case against the petitioner.**
**7. After hearing both sides, according to me, this is not a fit case, in which bail can be granted to the petitioner. The petitioner is a Bangladesh national. If the petitioner is released on bail, this Court or the trial court may not be able to assure the presence of the petitioner during trial. The counsel for the petitioner submitted that the passport and other documents of the petitioner are**
**B.A. No.5215 of 2020 7**
**produced before the court. That alone is not a reason to grant bail to the petitioner. The allegation against the petitioner is that, he committed dacoity. The nature of the offence also forced me to deny bail to the petitioner. This Court while considering an application under Section 439 Cr.P.C. need not go into the question as to whether the petitioner committed the offence or not. These are the matters to be decided by the trial court at the appropriate stage. Considering the entire facts and circumstances of this case, I think, the petitioner is not entitled for bail at this stage.**
**8. Moreover, the jurisdiction to grant bail has to be exercised on the well settled principles laid down by the Hon'ble Supreme Court in Chidambaram P. v. Central Bureau of Investigation (AIR 2019 SC 5272). The Apex Court held that, the following factors are to the taken into consideration while considering the application for bail.**
**(i) Nature of accusation and the**
**severity of the punishment in the case of conviction and the nature of the**
**B.A. No.5215 of 2020 8**
## **materials relied upon by the prosecution;**
**(ii) Reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses;**
**(iii) Reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence;**
**(iv) Character, behaviour and standing of the accused and the circumstances which are peculiar to the accused;**
**(v) Larger interest of the public or the State and similar other considerations.**
**It is true that, there is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be decided on the basis of the facts and circumstances of that case. In the light of the general principles laid down in the above judgment and considering the facts and circumstances of this case, I am of the opinion that, this is not a fit**
## **B.A. No.5215 of 2020 9**
**case in which the petitioner can be released on bail.**
**Hence this Bail Application is dismissed.**
**Sd/-**
**P.V.KUNHIKRISHNAN**
## **pkk**
**JUDGE**
