Sharafudheen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 4TH DAY OF NOVEMBER 2014/13TH KARTHIKA, 1936** ## **Bail Appl..No. 7398 of 2014 ()** **------------------------------CRIME NO. 1733/2014 OF FORT POLICE STATION, THIRUVANANDAPURAM** **--------------** ## **APPLICANT/1ST ACCUSED:-:** **----------------------------------------** **SHARAFUDHEEN, AGED 40 YEARS, S/O.ABDUL WAHAB, T.C.36/1961, NEAR PUTHEN PALAM, VALLAKADAVU P.O., THIRUVANANTHAPURAM - 695 008.** **BY ADVS.SRI.THOMAS ABRAHAM SMT.MERCIAMMA MATHEW SRI.ASWIN.P.JOHN SRI.T.S.PRASANNAKUMAR** ## **RESPONDENTS/COMPLAINANT:-:** **-----------------------------------------------** ## **1. STATE OF KERALA,** **REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031.** ## **2. SUB INSPECTOR OF POLICE,** **FORT POLICE STATION, THIRUVANANTHPAURAM DISTRICT - 695 021.** **RBY PUBLIC PROSECUTOR SMT. 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.No.7398 of 2014** ## **================= Dated this the 4[th] day of November, 2014** ## **ORDER** The petitioner is the first accused in Crime No.1733/2014 of Fort Police Station in Thiruvananthapuram District registered for offences punishable under Sections 143,147,148,149,341,323,324,506(ii),354,308 and 376 of the Indian Penal Code. Though Section 308 was initially included in the FIR, the same has been subsequently deleted. 2. The gist of the prosecution version is that the petitioner had committed rape on the wife of the defacto complainant and that thereafter he, under the threat of disclosing it to others, took her to various places and sexually abused her and that this was disclosed to the husband of the victim lady, and that the petitioner is stated to have called the defacto complainant to his house B.A. No.7398/2014 2 for settling the matter and thereafter assaulted him. It is based on his statement that crime was registered and the accused was arrested. 3. The learned counsel for the petitioner Sri.Thomas Abraham would submit that a complaint has been lodged as a counter blast to the case registered as Crime No.1730/2014 in the same police station under Sections 447,297(b), 323,324,308,354 and 34 IPC (Annexure 2 FIR), at the instance of the petitioner herein against the defacto complainant's husband. It is alleged in Annexure 2 that on 12/9/2014 the first accused therein along with the wife of the accused went to the house of the defacto complainant therein (petitioner herein) and caused injuries on the vital parts of the petitioner using knife. The petitioner who is accused in the instant crime and the accused in the counter case as per Annexure 2 were arrested. The application for regular bail moved by both the parties in the aforementioned two crimes were initially rejected by the 3 B.A. No.7398/2014 Session Court as per Annexure 3 common order dated 1/10/2014. Later, Sessions Court as per order dated 16/10/2014 in Crl.M.C. No.2506/2014 has ordered release of the accused Nos.1 and 2 in Crime No.1730/2014. (Annexure A2). The learned counsel for the petitioner would submit that the petitioner herein has been remanded to judicial custody on 13/9/2014 and has been under custodial detention for the last 52 days and that investigation is fully completed and further custodial detention is unwarranted and that the benefit of bail may be granted to him. 4. The learned Public Prosecutor would submit about the details of the investigation and about Annexures 1 and 2 crimes. Prosecution would submit that it is true that the Court below has granted bail to the accused in Annexure 2 (Crime No.1730/2014) . The learned Public Prosecutor would submit that accused 2 to 8 in the crime in this application (Crime No.1733/2014) could not be arrested till now and, therefore, investigation could not fully completed. B.A. No.7398/2014 4 The Public Prosecutor would submit that if this Court is inclined to grant bail to the petitioner on the ground that petitioner is under custodial detention for the last more than 52 days, then stringent conditions may be placed in the order so as to prevent the possibility of further violence between the petitioner and the defacto complaint's family. 5. On consideration of the submissions made by the learned counsel for the petitioner 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 bail to the petitioner, as he has been under judicial detention for the last 52 days, but hedged with stringent conditions so as to avoid any possibility of further violence between the rival parties. 6. Accordingly, it is ordered that the petitioner shall be released on bail on his executing a bond for Rs.35,000/(Rupees Thirty Five Thousand only) with two solvent sureties for the like amount to the satisfaction of the Court B.A. No.7398/2014 5 below concerned and on subject to the following conditions; _i). Petitioner shall not enter into or reside within the territorial limits of the Taluk concerned within whose area the de facto complainant is residing until the conclusion of the criminal proceedings or for a period of one year from now whichever is earlier, except for the purpose of compliance with the other conditions in the order or for meeting the requirements of any other case within that area._ _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_ B.A. No.7398/2014 6 _regard. In case such an application is filed, the trial court or the jurisdictional Magistrate concerned, as the case 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_ B.A. No.7398/2014 7 _and when required by him._ If the petitioner fails to comply with any of the aforementioned conditions, the bail granted to him is liable to be cancelled. This Bail Application stand disposed of as above. Sd/- **ALEXANDER THOMAS, JUDGE.** _Dpk_ _/True copy/ PS to Judge._ B.A. No.7398/2014 8