Sarbas M vs State Of Kerala

Ziyad Rahman A. A., J

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

The petitioner is the 4th accused in Crime No. 461/2020 of Badiadukka Police Station, which is now pending before the Additional Sessions Court-I, Kasaragod, as S.C No. 209/2021. The offences alleged against the petitioner and the other accused, 4 in number, are under Sections 451 and 354, read with Section 34 of the Indian Penal Code.

The prosecution case is that, on 17.09.2020, at about 22 hours, the 1st accused, who is the brother of the husband of the sister of the defacto complainant, along with two others, came in a motor car bearing registration No.KL-59 V/6305 knocked the door of the defacto complainant's house, and when they opened, they trespassed into the house. The 1st accused caught hold of the hand of the defacto complainant, and the 2nd and 3rd accused caught hold of the shoulder of the defacto complainant and thereby tried to drag her from the house. It is also alleged that some of the accused persons have caught hold of the breast of the defacto complainant. The petitioner, who is the 4th accused, was allegedly sitting inside a car and was giving directions to the accused to commit the offences. The crime was registered in such circumstances. As the petitioner was abroad, he could not be arrested during the stage of investigation, and later, after completing the investigation, a final report was submitted alleging offences punishable under Sections 451, 323, 354, 354A(1)(i) of the Indian Penal Code and Section 9(g) read with 10, 12 read with 11 (1) of POCSO Act, by the police showing the petitioner as absconding. Now the matter is pending before the Sessions Court, Kasaragode, as S.C No. 209/2021.

Subsequently, on 07.02.2023, the petitioner was apprehended from Kannur International Airport on the basis of a lookout notice issued by the police and was detained in judicial custody thereafter. This application for regular bail is submitted in such circumstances.

Heard, Sri. S.K Saju, the learned counsel appearing for the petitioner and Sri.M.P.Prashanth, the learned Public Prosecutor, appearing for the State.

The learned counsel for the petitioner contends that the petitioner is innocent of all the allegations. According to him, the petitioner was not shown as the accused person in the FIR and was implicated only subsequently. According to him, even as per the prosecution case, the alleged acts were committed by the accused Nos. 1 to 3, and the petitioner's role is limited, as he was sitting inside the car.

On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. In response to the contention put forward by the learned counsel for the petitioner regarding the limited role of the petitioner, the learned Public Prosecutor points out that, as per the statement of the victim, the petitioner was sitting inside the car and instigating the other accused to commit the offences. The learned Public Prosecutor also brought the attention of this Court to the statement allegedly made by the petitioner, asking the other accused to take away the defacto complainant. It was further pointed out that the petitioner was absconding all along, and his arrest could be secured only after much effort, from the Kannur International Airport, based on a lookout notice issued in this regard, when he came to his native place. The apprehension of the learned Public Prosecutor is that if the petitioner is released on bail, he is likely to abscond again which would affect the conduct of fair trial in the matter. In such circumstances, dismissal of the bail application is sought.

I have reviewed the materials on record and heard the contentions raised from both sides. Even though the learned counsel for the petitioner submits that the petitioner's role is limited, the statement of the victim recorded under Section 164 of Cr. P.C would prima facie indicate that the petitioner was instigating the others to commit the offences. However, the fact remains that, the petitioner has been in custody since 07.02.2023 onwards and the final report is already submitted. In such circumstances, further incarceration of the petitioner appears to be not necessary. However, apprehension voiced by the learned Public Prosecutor about the possibility of the petitioner absconding again cannot be simply brushed aside. But in my view, the same can be addressed by incorporating appropriate conditions to ensure his appearance before the trial court, by directing him to surrender his passport.

In such circumstances, the application is allowed, and the petitioner is directed to be released on bail subject to the following conditions:-

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

ii) The petitioner shall appear before the Investigating Officer as and when required.

iii) The petitioner shall not commit any offence of similar nature while on bail.

iv) The petitioner 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.

v) The petitioner shall not leave the State of Kerala without the permission of the trial Court.

vi) The petitioner shall surrender his passport before 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 of bail, if any, and pass appropriate orders in accordance with the law.