Sakeer P.S. v. State of Kerala & Abdul Rahim

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 ``` ``` BAIL APPL. NO. 4437 OF 2024 ``` ``` CRIME NO.251/2024 OF Kattappana Police Station, Idukki ``` ``` ---------------- ``` ## **`PETITIONER/4TH ACCUSED :-`** ``` SAKEER P.S, AGED 53 YEARS S/O SALIM, PADAYIL HOUSE, PERUNNA PO, CHANGANACHERY VILLAGE, CHANGANACHERY TALUK, KOTTAYAM, PIN - 686 102 ``` ``` BY ADV K.V.SABU ``` ## **`RESPONDENT/STATE & COMPLAINANT :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 ABDUL RAHIM,`** ``` S/O HAMZA, PERMANENTLY RESIDING AT MANUVELIL HOUSE, DR.GANGADHARAN ROAD, PALLURUTHY KARA, EDAKOCHI VILLAGE, ERNAKULAM, NOW RESIDING AT RENTED HOUSE OF SUHARA, HIRUNNISA MANZIL, THOPPUMPADY KARA, CHULLIKKAL, INDIRA LANE BHAGOM, THOPPUMPADY VILLAGE, ERNAKULAM, PIN - 682 005 ``` ``` BY ADV LAYA THERESA ANTONY BY SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 4437 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 24th day of July, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _,_ for an order of pre-arrest bail. 2. The petitioner is the fourth accused in Crime No.251/2024 of the Kattappana Police Station, Idukki, which is registered against the accused, for allegedly committing the offence punishable under Section 392 r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that; the accused, in furtherance of their common intention, to make unlawful gain and cheat the de facto complainant, made the de facto complainant to believe that they would arrange gold ornaments worth Rs.38/- lakh on credit in a jewellery at Kattappana and consequentially received Rs.7,70,000/- from him on 23.02.2024. However, the accused did not give the ornaments or return the capital. Thus, the accused have committed the above offence. ``` BAIL APPL. NO. 4437 OF 2024 ``` ``` -: 3 :- ``` 4. Heard; Sri.K.V.Sabu, the learned counsel for the petitioner, Smt.Neema T.V., the learned Senior Public Prosecutor and Smt.Laya Theresa Antony, the learned counsel appearing for the second respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to prove that the petitioner has committed the above offence. In any given case, the petitioner and the second respondent have settled their disputes out of court, and the second respondent has sworn an affidavit stating that he has no subsisting grievance against the petitioner. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She also stated that if the petitioner is granted an order of pre-arrest bail, it may hamper the ``` BAIL APPL. NO. 4437 OF 2024 ``` ``` -: 4 :- ``` investigation. Nonetheless, she stated that the Investigating Officer has ascertained from the second respondent and reported that the subject matter in dispute between the petitioner and the second respondent has been settled out of court. The second respondent's statement has also been recorded. 7. The learned counsel appearing for the second respondent also stated that the subject matter in dispute between the parties has been settled. He vouched for the signature of the second respondent in the affidavit filed before this Court. 8. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly considering the peculiar facts and circumstances of the case, especially that the petitioner and the second respondent have settled the disputes between them as per the statement recorded by the Investigating Officer and the affidavit filed before this Court, I am satisfied that the petitioner's custodial ``` BAIL APPL. NO. 4437 OF 2024 ``` ``` -: 5 :- ``` interrogation is not necessary. Hence, I hold that the petitioner is entitled to an order of pre-arrest bail, but subject to conditions. In the result, the application is allowed, subject to the following conditions :- - (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioner's arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) 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 him from disclosing such facts to ``` BAIL APPL. NO. 4437 OF 2024 ``` ``` -: 6 :- ``` the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before the said court within the said period; - (vi) The petitioner shall not get involved in any other offence while he is on bail; - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii) Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to ``` BAIL APPL. NO. 4437 OF 2024 ``` ``` -: 7 :- ``` 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/C.S. DIAS, JUDGE** Jvt/25.7.2024 ``` BAIL APPL. NO. 4437 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL.4437/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure A1A COPY OF THE FIR IN CRIME NO.251/2024 REGISTERED BY KATTAPPANA POLICE STATION Annexure A2A COPY OF THE REPORT FILED BY THE 1ST RESPONDENT DT.13.5.2024 Annexure A3ORDER DT.16.5.2024 IN CRL.M.C NO.393/2024 PASSED BY THE LEARNED SESSIONS COURT, THODUPUZHA ```