Maheenkannu @ Mammootty vs State Of Kerala

Ziyad Rahman A.A., J

The petitioners are the accused Nos.1 and 2, in Crime No.397 of 2022 of Maranalloor Police Station, which was registered for the offences punishable under Sections 302,109 and 201 read with Section 34 IPC.

The prosecution case is as follows:

The 1st accused married one Divya, concealing his identity and his prior marriage with the 2nd accused and a child named Gowri was born in the wedlock. Later, the said Divya came to know about the earlier marriage of the 1st accused. Thereupon, as instigated by the 2nd accused, the first wife of the 1st accused on 18.08.2011 at 5.30 P.M, he took Divya and her daughter away from her parental house in an autorickshaw to a place named Alillathura in Tamilnadu and the 1st accused pushed them into the sea and thereby committed the murder. Initially, crime was registered for a man missing case based on the complaint submitted by the father of Divya. After completing the investigation, Maranalloor Police closed the case as undetected. Thereafter, a further investigation was commenced on 24.08.2019 by incorporating Section 370 IPC. As part of the investigation of the said crime, the 1st petitioner was summoned to the police station, and according to the 1st petitioner, he was brutally assaulted by the Police. However, he was not taken into custody. Later, the petitioners were arrested on 30.11.2022, and since then, they are under judicial custody.

The learned counsel for the petitioners would submit that the petitioners are innocent of the allegations. According to him, they were falsely implicated in the said crime. The learned counsel for the petitioners specifically points out that, in connection with the investigation of the said case, the police have summoned the 1st petitioner to the Police Station on two occasions, and he was brutally assaulted. The learned counsel for the petitioners places reliance upon Annexure-AII and AIII wound certificates dated 30.12.2019 and 18.09.2022, respectively. It is pointed out that, in both the said wound certificates, the cause of injury was shown as the assault committed by the police. Thus, it is pointed out by the learned counsel for the petitioners that, they were cooperating with the investigation right from the inception and appeared before the investigating officer whenever demanded. It is further contended that, as of now, no materials could be collected by the investigating officer to implicate the petitioners, and therefore, the petitioners seek an order of bail.

On the other hand, the learned Addl.Public Prosecutor would seriously oppose the contention above. The allegation of the assault of the 1st petitioner was denied by the prosecution. According to the learned Addl.Public Prosecutor, the petitioners are not cooperating with the investigation. The learned Addl.Public Prosecutor also made available a copy of the order passed by the Judicial First Class Magistrate Court, Kattakkada, in CMP.No.1239 of 2020, which was filed by the prosecution for the purpose of conducting a Polygraph test of the accused persons and near relatives of the petitioners. It is pointed out that, as the petitioners as well as the other witnesses, have opposed the said application and did not give consent to undergo the Polygraph test, the learned Magistrate dismissed the said application on 11.11.2022.

It is further contended by the learned Addl.Public Prosecutor that, even though no direct evidence is available, there is circumstantial evidence indicating the role of the petitioners. It is also submitted that the victims were last seen with the 1st accused, and the release of the petitioners would cause prejudice to the prosecution. It is also pointed out that the digital evidence, such as, the mobile tower locations of the petitioners, also supports the prosecution case. Therefore, it is contended that if the petitioners were released on bail, it would cause difficulties in conducting the investigation.

I have gone through the records and heard the contentions from both sides. It is discernible that the petitioners have been under detention since 30.11.2022. As pointed out by the learned counsel for the petitioners, even though the question whether the 1st petitioner was subjected to ill-treatment as contended by him is a debatable issue, but Annexure-AII and AIII would give some indications that he appeared before the police and, therefore there is some force in the contention of the petitioners that they were cooperating with the investigation all alone. Moreover, the crime was registered in 2011 and the arrest was affected only on 30.11.2022. Apart from the circumstantial evidence, no direct evidence could be collected by the investigating officer, so far. In such circumstances, taking note of the period of detention the petitioners have already undergone, the petitioners are to be released on bail subject to stringent conditions in such a manner that they are not interfering with the investigation. Even though the learned Addl.Public Prosecutor opposed the application on the ground that they are not cooperating with the investigation as they have objected to undergo a polygraph test, in my view that by itself cannot be a ground for denying bail to the petitioners.

In such circumstances, this bail application is allowed, and the petitioners are directed to be released on bail subject to the following conditions:

(i) The petitioners shall be released on bail on executing a bond for Rs. 1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Magistrate/Court.

(ii) The petitioners shall fully cooperate with the investigation.

(iii) The petitioners shall appear before the investigating officer between 10.00 a.m and 11.00 a.m every Friday until the filing of the final report.

(iv) The petitioners shall also appear before the investigating officer as and when required by him.

(v) The petitioners shall not commit any offence of like nature while on bail.

(vi) The petitioners shall not make any attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vii) The petitioners shall not leave the State of Kerala without the permission of the trial Court.

(viii) The petitioners shall surrender their passport before the investigating officer, who shall produce the same before the jurisdictional court. If the petitioners is not having a valid passport, they shall file an affidavit to that effect.

(ix) The petitioners shall not enter into the territorial limit of Maranalloor Police Station until the filing of the final report in this case.

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