Sammil, Ahamed and Shafeeq v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **TUESDAY, THE 4TH DAY OF NOVEMBER 2014/13TH KARTHIKA, 1936** ## **Bail Appl..No. 7404 of 2014 ()** ## **------------------------------CRIME NO. 1396/2014 OF VARKALA POLICE STATION, THIRUVANANDAPURAM DISTRICT** **------------** ## **PETITIONERS/ACCUSED 5,7 AND 10:** **--------------------------------------------------** ## **1. SAMMIL, AGED 34 YEARS,** - **S/O. HAFIL, VAYALIL VEETTIL, ASAAN MUKKU, VETTOOR VILLAGE, VARKALA.** **2. AHAMMED, AGED 20 YEARS, S/O. SULFIKKAR, VAZHAVILA VEETTIL, ASAANMUKKU, MELVETTOOR DESOM, VETTOOR VILLAGE, VARKALA.** **3. SHAFEEQ, AGED 24 YEARS, S/O. ABDUL VAHID, PUNNAVILA VEEDU, ASAAN MUKKU, VETTOOR VILLAGE, VARKALA.** ## **BY ADV. SRI.P.ANOOP (MULAVANA)** **RESPONDENT :** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** **BY PUBLIC PROSECUTOR SRI. R. REMA** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04-11-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **ALEXANDER THOMAS, J. ========================= B.A.Nos. 7406 & 7516 of 2014 ============================ Dated this the 4[th] day of November, 2014** ## **ORDER** Petitioners in B.A. No.7404/2014 are accused Nos.5,7 & 10 in Crime No.1396/2014 of Varkala Police Station and the Petitioners in B.A. No.7516/2014 are accused Nos. 12 & 13 in the said crime. Offences involved in the said case are those under Sections 366, 366(A), 376 (D) of the Code of Criminal Procedure and Sections 3 (A) and 4 of the Protection of Children from Sexual Offences Act 2012. 2. The gist of the prosecution case is that the first accused approached the de facto-complainant, who is a minor, by promising her to marry and thus on 09/08/2014 at 12 noon when the de facto complainant and her relative were in the Government Hospital, Varkala, the first accused had taken them in an autorickshaw which was driven by 3[rd] accused and 2[nd] accused also joined in their company and the accused took the victim to a house near Vettoor Asan B.A. Nos.7404 & 7516/2014 2 Mukku and thereafter committed rape on her and on 9/8/2014 and 10/8/2014 and that accused 2 to 11 raped on her several times from 9/8/2014 to 14/8/2014. The allegation pertaining to the petitioners in B.A. No.7516/2014, who are accused Nos. 12 & 13 is that they were seen in the vehicle which was used for carrying the above said two victims. The offence alleged against them is under those under Sections 366,366(A) and 376 (D) IPC. Petitioners in B.A. No.7404/2014 were arrested and remanded since 17/8/2014 and petitioners in B.A. No.7516/2014 were arrested on 17/8/2014 and 18/8/2014 and even under remand since then. 3. Sri.P.Anoop learned counsel for the petitioners in B.A. No.7404/2014 would submit that the said applicants have been under custodial detention since the last 77 days and Sri.C.R.Vijayakumaran Pillai learned counsel for the petitioners in B.A. No.7516/2014 would submit that those petitioners have been under judicial custody for the last B.A. Nos.7404 & 7516/2014 3 abut 80 days and that the investigation to the extent it affects them are completed and, at any rate, and that further custodial detention is not necessary and, therefore, regular bail may be granted to them. It is also pointed out that accused No.11 was earlier granted regular bail by this Court as per the order dated 30/9/2014 in B.A. No.6504/2014 after being custodial detention and remand on 17/8/2014 and that accused No.2 was granted regular bail after the order dated 14/10/2014 in B.A. No. 6617/2014 and that accused 3 and 4 have also been granted regular bail as per order dated 28/10/2014 by this court in B.A. No.7736/2014. 4. The learned Public Prosecutor submitted about the details of the crime and the investigation and that further submitted that the investigation is not fully completed as since accused Nos.1,6,8 & 9 could not be arrested so far and that in case this Court inclined to grant regular bail to these petitioners, the same may be hedged with stringent B.A. Nos.7404 & 7516/2014 4 conditions so as to protect the interest of the prosecution. 5. Having considered the submissions of the learned counsel appearing for the respective petitioners in these two bail applications and the learned Public Prosecutor and on evaluation of the totality of the facts and circumstances of this case, this Court is inclined to grant regular bail to the petitioners, but hedged with necessary stringent conditions so as to ensure that the petitioners do not enter into Thriuvananthapuram Revenue District until the conclusion of the trial in these cases so as to protect the bona fide interest of the prosecution expect for the purpose of compliance of the other conditions in the order. The learned counsel for the petitioners in B.A. No.7404/2014 and the learned counsel for the petitioners in B.A. No.7516/2014 would fairly submit that the petitioners would undertake that they would not enter into the limits of the Thiruvananthauram Reveue District until the conclusion of the trial in these cases as ordered by this Court. B.A. Nos.7404 & 7516/2014 5 6. Accordingly, it is ordered that the petitioners in B.A.Nos.7516/2014 and the petitioners in B.A.No.7404/2014 by released on bail (if they are not to be detained in connection with any other crimes) on their separately executing bond for Rs.35,000/-(Rupees Thrifty Five Thousand only) with two solvent sureties each for the like amount to the satisfaction of the court below concerned and subject to the following conditions: _i). Petitioners in B.A. No.7516/2014 and petitioners in B.A.No. 7404/2014 shall not enter or reside within the territorial limits of the Thiruvananthapram Revenue District until the conclusion of the trial of this case except for the purpose of compliance with the other conditions in the order and that attending to the needs of any other cases in the Court in Thiruvananthapuram District. The Investigating Officer shall conduct diligent enquiries in the manner he wants to do and ascertain as to whether the_ B.A. Nos.7404 & 7516/2014 6 _two victims involved in this crime are facing any threating or disturbing action from the petitioners or any other accused in these cases and if he is convinced after making due enquires about the correctness of such allegation, he shall file an appropriate report and necessary application for cancelation of the bail granted to those accused persons by approaching this Court_ . _ii) The petitioner shall surrender his passport, if any, before the jurisdictional Magistrate concerned within three days from the execution of the bail bond before the Investigating Officer and if he is not a holder of passport, he shall file an affidavit to that effect in the said court. If the petitioner requires his passport in connection with his travel abroad, then he shall approach the court concerned for the release of the same and for necessary permission in that regard. In case such an application is filed, the trial court or the jurisdictional Magistrate concerned, as the case_ B.A. Nos.7404 & 7516/2014 7 _may be, is free to consider the same on merits and to pass appropriate orders thereon, taking necessary guidance from the principles laid down in the decision of this Court in the case_ _**Asok Kumar v State of Kerala,** (2009(2) KLT 712), notwithstanding the aforementioned conditions imposed by this Court._ _iii) The petitioner shall not involve in any criminal offence of similar or graver nature._ _iv) The petitioner shall not influence the witnesses or shall not tamper or attempt to tamper evidence in any manner whatsoever._ _v) The petitioner shall fully co-operate with the investigation and report before the Investigating Officer as and when required by him._ B.A. Nos.7404 & 7516/2014 8 If the petitioner fails to comply with any of the aforementioned conditions, the bail granted to him is liable to be cancelled. Sd/- **ALEXANDER THOMAS, JUDGE.** Dpk /True copy/ PS to Judge.