Full Judgment
B.A.No.3998/23 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 30TH DAY OF MAY 2023 / 9TH JYAISHTA, 1945 BAIL APPL. NO. 3998 OF 2023 AGAINST THE ORDER/JUDGMENTCRMC 811/2023 OF ADDITIONAL DISTRICT COURT KOZHIKODE- II PETITIONERS/3RD ACCUSED: KUNHAMMED, AGED 50 YEARS, S/O.ANTHU, MADATHIL MEETHAL HOUSE , CHERAPURAM POST, KAKKAT, KOZHIKODE RURAL, PIN - 673 512. BY ADV.SHARAN SHAHIER RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA, REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, KOCHIN, PIN - 682 031. 2 ASLAM, S/O.SOOPY, AGED 32 YEARS, KUZHIYULLA MALAYIL HOUSE, KAKKARAMUKKU, CHERUVANNUR, MEPPAYUR P.O, KOZHIKODE, PIN - 673 524. 3 MAJITHA.K.M, W/O.ASLAM, AGED 26 YEARS KUZHIYULLA MALAYIL HOUSE, KAKKARAMUKKU, CHERUVANNUR, MEPPAYUR P.O, KOZHIKODE ., PIN - 673524 SRI.C.S.HRITHWIK -SR PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.05.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.No.3998/23 2
ORDER
This is an application filed u/s 439 of the Code of Criminal Procedure seeking regular bail.
2. The petitioner is arrayed as 3 rd accused in Crime No.102 of 2023 of Meppayur Police Station. Offences alleged against the accused are under Sections 452, 386, 506, read with 34 IPC.
3. The prosecution case is that, on 28.02.2023 at 23:00
hours, the accused persons, total four in number, trespassed into the house of the de facto complainant, threatened her that they would kill the de facto complainant and family members, forcibly took the ATM card and its PIN from her and withdraw an amount of Rs.60,000/- from the bank account. The crime was registered in such circumstances, and as part of the investigation, the petitioner
was arrested on 07.05.2023. Since then, he has been under judicial detention. Application for regular bail is submitted in such circumstances.
4. Heard Sri.Sharan Shahier, learned counsel for the petitioner and Sri.C.S.Hrithwik, learned Senior Public Prosecutor for the State. B.A.No.3998/23 3
5. Learned counsel for the petitioner submits that the
petitioner was not at all involved in the crime above. The petitioner was implicated on the basis of a mistaken identity and the petitioner also places reliance on the Annexure-2 affidavit submitted by the de facto complainant, in which it is stated that he was not involved in the offence and his implication was based on a mistaken identity.
6. On the other hand, the learned Public Prosecutor would stoutly oppose the aforesaid application. It is pointed out that
even though the petitioner was not named in the FIR, subsequently, he was implicated as the 3 rd accused on the basis of the statement given by the witnesses, and he was clearly identified as well. The matter is now under investigation. It is pointed out that the entire incident happened as part of the smuggling of gold,
and the allegations raised are serious in nature. In such circumstances, dismissal of the bail application was sought by the learned Public Prosecutor.
7. I have gone through the records. The main contention put forward by the learned counsel for the petitioner is that of mistaken identity. In the FIR the petitioner was not named, and B.A.No.3998/23 4
only the 1st accused was identified. The petitioner was subsequently implicated as accused during the course of a further investigation conducted. In order to substantiate the contention of mistaken identity, the learned counsel for the petitioner places reliance on the Annexure-2 affidavit and in the said affidavit, the de facto complainant has clearly stated that the petitioner was not
involved in the said offence. Even though, the said statement alone cannot be taken into consideration for the purpose of deciding the question as to whether he is involved in the offence or not; I am of the view that the same can be relied on for the limited purpose of deciding the question whether the petitioner can be granted bail or not, as it evokes some doubt as to the involvement
of the petitioner. Moreover, the petitioner has been in custody since 07.05.2023.
8. In such circumstances, taking into account the period of
detention already undergone and the contentions as to the mistaken identity supported by the affidavit of the defacto complainant, I deem it appropriate to pass an order directing the release of the petitioner. B.A.No.3998/23 5 Accordingly, this bail application is allowed on 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 solvent sureties for the like sum each to the satisfaction of the jurisdictional Court.
(ii) The petitioner shall fully cooperate with the investigation.
(iii) The petitioner shall appear before the investigating officer between 10.00 a.m and 11.00 a.m. on every Friday until the filing of the final report.
(iv) The petitioner shall also appear before the investigating officer as and when required.
(v) The petitioner shall not commit any offence of similar nature while on bail.
(vi) 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. B.A.No.3998/23 6
(vii) The petitioner shall not leave the State of Kerala without the permission of the trial Court. In case of violation of any of the above conditions, the jurisdictionalCourt shall be empowered to consider the application for cancellation of bail, if any, and pass appropriate orders in accordance with the law. It is further clarified that the observations made by this Court in this order were only for the purpose of deciding the bail application, and under no circumstances, the same can cause any prejudice either to the accused or to the prosecution.
Sd/- ZIYAD RAHMAN A.A. JUDGE DG/30.5.23 B.A.No.3998/23 7 APPENDIX OF BAIL APPL. 3998/2023 PETITIONER ANNEXURES Annexure 1 A TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED 15/5/2023 Annexure 2 A TRUE COPY OF THE AFFIDAVIT FILED BY THE 3RD RESPONDENT DATED 15/5/2023 Annexure 3 A TRUE COPY OF THE BAIL ORDER DATED 16.05.2023 IN CRL MC 811/2023 BEFORE THE ADDITIONAL SESSIONS JUDGE-II, KOZHIKODE