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Shamas vs The State Of Kerala on 1 October, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

TUESDAY, THE 01ST DAY OF OCTOBER 2019 / 9TH ASWINA, 1941

BAIL APPL..NO.6904 OF 2019

CRIME NO.542/2019 OF BALUSSERY POLICE STATION, KOZHIKODE

PETITIONER/ACCUSED NO.2:

SHAMAS, AGED 34 YEARS,
S/O. BASHEER, KALLIDUKKIL HOUSE, KINALOOR P. O.,
BALUSSERY, KOZHIKKODE DISTRICT.

BY ADV. SRI.K.RAKESH

RESPONDENTS/STATE COMPLAINANT:

1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI – 682 031.

2 THE STATION HOUSE OFFICER
BALUSSERY POLICE STATION,
KOZHIKKODE DISTRICT, PIN – 673 612.

SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1 AND R2.

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
01.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ALEXANDER THOMAS, J.
———————————–
B.A. No. 6904 of 2019
———————————–
Dated this the 1st day of October, 2019

ORDER

The petitioner herein has been arrayed as Accused

No.2 in the instant Crime No.542/2019 of Balussery Police

Station, which has been registered for offences punishable under

Secs.109 317 of the SectionIPC and Secs.75 87 of the Juvenile Justice

(Care and SectionProtection of Children) Act, 2015.

2. The prosecution case in short is that, A1 aged 31 years

is a married woman having girl child aged 6 years, and A2 is

married to a different woman, and that A1 and A2 were having a

love affair, and A2 had instigated A1 to leave her home and elope

with him, whereupon A1 has eloped from her marital home, and

has left her girl child there on 30.8.2019, and thereby the accused

persons have committed the abovesaid offences.

3. As a matter of fact, the crime was initially registered

under Sec.57 of the Kerala Police Act as a “person missing case”

on account of the missing of A1 herein from her marital home, and
B.A. No. 6904 of 2019

..3..

the first informant in this case is her husband, wherein it is also

alleged that the first informant suspects that A1 would have eloped

with A2, as they were having a love affair. The police after

investigation has altered the offences to those as mentioned herein

above, and A1 and A2 have been arrayed as the two accused

therein. The petitioner (A2) has been arrested on 7.9.2019 in this

case, and after remand he has been under detention since then.

4. The counsel for the petitioner would point out that the

abovesaid allegations are false and fabricated, and that even going by

the prosecution case, the child was left by A1 in her marital home

where the lady’s husband and parents-in-law were residing, and

therefore it cannot be said that the child was abandoned without any

care and attention, and further it is pointed that, the offence as per

Sec.317 of the SectionIPC deals with exposure and abandonment of child

aged below 12 years by parent or other person having care of him,

and that the alleged act of A1 in leaving the child where the child’s

father and paternal grand parents are there, cannot be said to be an

act consisting of exposure and abandonment of child, and that

therefore there is no question of inclusion of offence of abetment to
B.A. No. 6904 of 2019

..4..

commit either the offence as per Sec.75 of the JJ Act or as per

Sec.317 of the SectionIPC. Further it is seen that, the arrest of the

petitioner has also been recorded in relation to another crime as

per Crime No.573/2019 of Balussery Police Station, for offences

punishable under Secs.406, 498A, 317 34 of the SectionIPC and

Secs.3 4 of The Muslim Women (Protection of Rights on

SectionMarriage) Act, 2019, and Sec.75 of the Juvenile Justice (Care and

SectionProtection of Children) Act, 2015.

5. Learned Prosecutor has opposed the plea for regular

bail, and has submitted that there is possibility of the petitioner

again instigating the lady to elope with him, which will lead to the

very same offence, as the petitioner (A2) is having illicit connection

with the lady(A1).

6. After hearing both sides and after careful evaluation of

the facts and circumstances of the case, and taking note of the

nature of the allegations disclosed against the petitioner, and also

the fact that the petitioner has also undergone detention in this

case for the last 23 days, this Court is inclined to take the view that

the further detention of the petitioner in this case is not necessary
B.A. No. 6904 of 2019

..5..

and he could be released on regular bail, subject to the condition

that his detention is not required in any other case.

7. Accordingly it is ordered that the petitioner(A2) shall

be released on bail on his executing bond for Rs.40,000/- and on

his furnishing two solvent sureties for the like sum, each to the

satisfaction of the competent court below concerned. However the

grant of bail will be subject to the following conditions:-

i. The release of the petitioner (A2) in this case will be subject to the
condition, that his detention is not wanted in any other case.

ii. The petitioner (A2) shall appear before the Investigating Officer (I.O.)
on every 2nd and 4th Saturdays, at any time between 9 am and 1 pm,
for a further period of 6 months or within such time limit that may be
extended by the I.O. as he deems fit and proper.

iii. He shall not intimidate or attempt to influence the witnesses; nor shall
he tamper with the evidence.

iv. He shall not commit any offence while on bail.

v. The petitioner shall not go anywhere near to the residence of A1.

vi. As there is a strong possibility that the petitioner repeating the very
same offence by instigating A1 , it is ordered that the petitioner shall
not have any contact with A1 and he shall not enter into or reside
anywhere within the territorial limits of the Police Station,
B.A. No. 6904 of 2019

..6..

where A1 is residing until the conclusion of trial process in this case,
except for the limited purpose of reporting before the Investigating
Officer concerned in this crime, or for attending to the Court in
relation to this case or any other cases or for contacting his
lawyers/advocates concerned.

vii.However if on account of any emergent personal need the petitioner
wants to visit the said area, he may do so but only with the prior
permission of the Investigating Officer concerned.

If there is any violation of the abovesaid conditions by the

petitioner then the jurisdictional court concerned shall stand

hereby empowered to consider the plea for cancellation of bail if

required, and pass appropriate orders in accordance with law.

With these observations and directions, the above Bail

Application will stand disposed of.

Sd/-

ALEXANDER THOMAS,
JUDGE

MMG

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