Dinshad @ Appu vs State Of Kerala

Bechu Kurian Thomas, J

This is an application for regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Petitioner is the 2nd accused in Crime No.609 of 2021 of Peruvannamuzhi Police Station, Kozhikode District; now pending as S.C.No.1136/2021 of the Special Court for Trial of Offences Against Women and Children, Kozhikde, for the offences punishable under Sections 366A and 376DA of the Indian Penal Code, 1860 and also under Sections 4(2) r/w Section 3(a)(d), Section 6(1) r/w Section 5(g)(n), Section 21(1) r/w Section 19(1) of the Protection of Children from Sexual Offences Act, 2012.

Petitioner was initially arrested in the said crime on 03.11.2021 and by order dated 03.01.2022 in CMC No.372/2021, the Sessions Court had granted bail to the petitioner. However, subsequently, when the case was posted on 31.03.2022 due to the absence of the petitioner, a non bailable warrant was issued and the case was posted to 31.05.2022. On the said date, though the petitioner entered appearance through a counsel, it was alleged that there was an omission to file a petition to recall the warrant and therefore after issuing the notice to the sureties, the bail bond was cancelled and the petitioner surrendered on 29.08.2022 and has been in custody since then.

Sri.Samsudin Panolan, the learned counsel for the petitioner submitted that petitioner had never absconded and on the other hand, the incident occurred on account of an omission on the part of his representative to file an application to recall the warrant. It was further submitted that, even on the first occasion, the petitioner had not actually absconded at all but the counsel representing the petitioner could not reach the court on time. In any event, it was pointed out that, since the petitioner has been in custody from 29.08.2022, further detention ought not to be permitted as the petitioner is willing to appear before the court on every posting date, without fail.

Smt.M.K.Pushpalatha,   the   learned   Public   Prosecutor, opposed the grant of bail and submitted that the petitioner had evaded the process of law by absconding and, therefore, there is every chance of absconding again.

I have considered the rival contentions and on a perusal of the circumstances of the case, I am of the view that since the petitioner has been in custody from 29.08.2022, the continued detention ought not to be permitted; especially since there was no condition directing the appearance of the petitioner on every posting date in the initial bail order. However, since the prosecutor has expressed apprehension of the petitioner absconding again, I am of the view that this bail application can be allowed on conditions:

In the result, this application is allowed on the following conditions:-

(a) Petitioner shall be released on bail on him 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.

(b) Petitioner shall appear before the Special Court for Trial of Offences Against Women and Children, Kozhikde in S.C. No.1136/2021 on every posting date, without fail and shall co-operate with the trial of the case.

(c) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he attempt to tamper with the evidence.

(d) Petitioner shall not commit any similar offences while he is on bail.

(e) Petitioner shall not leave the country without the permission of the jurisdictional Court.

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law, notwithstanding the bail having been granted by this Court.