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Shammas vs The State Of Kerala on 10 October, 2019

B.A. No. 7053 of 2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

THURSDAY, THE 10TH DAY OF OCTOBER 2019/18TH ASWINA, 1941

BAIL APPL.NO.7053 OF 2019

CRIME NO.573/2019 OF BALUSSERY POLICE STATION, KOZHIKODE

PETITIONER/ACCUSED NO.1:
SHAMMAS, 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 OFIFCER
BALUSSERY POLICE STATION,
KOZHIKKODE DISTRICT, PIN-673 612.

*ADDL 3 RASEENA S.P.
. S/O ABDUL RASHEED, AGED 25 YEARS,
PALTHINKANDY PARAMBA HOUSE,
ODUMBRA, OLAVANNA PO, NALLALAM,
KOZHIKODE DISTRICT, PIN-673025.

* IS IMPLEADED AS ADDITIONAL R3 AS PER THE ORDER
DATED 3.10.2019 IN CRL.MA NO.2/2019 IN
B.A.NO.7053/2019.

SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR

THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION
ON 10.10.2019, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
B.A. No. 7053 of 2019
..2..

ALEXANDER THOMAS, J.
———————————————–
B.A. No. 7053 of 2019
———————————————–
Dated this the 10th day of October, 2019

ORDER

The petitioner herein has been arrayed as the sole

accused in the instant Crime No.573/2019 of Balussery Police

Station, which has been registered for offences punishable under

Secs.406, 498A, 317 r/w 34 of the SectionIPC and Secs.4 3 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.

2. The prosecution case in short is that, earlier the

petitioner had married the lady defacto complainant in this case as

per the personal law applicable to the parties (Muslims) and they

were residing together, and that the petitioner had harassed and

cruelly treated her demanding more dowry, and that he has

misappropriated 20 sovereigns of her gold ornaments. Further that,

on 13.8.2019 the petitioner accused had pronounced Triple Talaq on

her, and has thereby committed the offence as per Sec.3 of the

Muslim Women (Protection of Rights on SectionMarriage) Act, 2019, which

is punishable under Sec.4 thereof, and that he left his marital home
B.A. No. 7053 of 2019
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and abandoned his minor children who are aged 6 years, 3 years and

1 year. The petitioner was earlier arrested in relation to his

involvement in another crime, viz, Crime No.542/2019 of Balussery

Police Station on 7.9.2019 and upon production warrant, his arrest in

relation to the present Crime No.573/2019 of the same Police Station,

has been formally recorded on 20.9.2019. The petitioner has already

secured regular bail in respect of the earlier Crime No.542/2019 of

Balussery Police Station.

3. Now in view of the mandatory requirement under

Sec.7(c) of the Muslim Women (Protection of Rights on SectionMarriage)

Act, 2019, the affected Muslim Woman on whom the instant Triple

Talaq is pronounced, has to be heard by the bail court concerned.

Accordingly, as per the directions of this Court, the petitioner has

impleaded the lady defacto complainant in this case (his former wife)

as additional respondent No.3 and notice has also been served on

her by Special Messenger. Despite service of notice on R-3, she has

not entered appearance.

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

abovesaid allegations are false and baseless, and further that as the

petitioner has already suffered detention since 20.9.2019 in this case,

his continued detention may not be necessary, and that this Court
B.A. No. 7053 of 2019
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may order to release him on regular bail subject to stringent

conditions.

5. The learned Prosecutor would seriously oppose the grant

of regular bail and would also point out that this Court has already

directed in order dated 1.10.2019 in B.A.No.6904/2019 filed by the

petitioner in respect of his involvement in the earlier Crime

No.542/2019 of Balussery Police Station, that as one of the

allegations in that crime is that the petitioner had induced the

co-accused lady in that case to abandon her children in order to elope

with him, he shall not have any contact with the co-accused lady in

that case, in order to foreclose the eventuality of both the said

accused persons committing such offences again, and that this Court

may ensure that the said direction is scrupulously followed by the

petitioner.

6. After hearing both sides and after careful evaluation of

the facts and circumstances of the case, this Court is inclined to take

the view that, taking into account the detention already suffered by

the petitioner, his continued detention may not be necessary in this

case, and he could be released on regular bail subject to stringent

conditions. Accordingly it is ordered that the petitioner shall be

released on bail on his executing bond for Rs.40,000/- and on his
B.A. No. 7053 of 2019
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furnishing two solvent sureties for the like sum, both to the

satisfaction of the competent court below concerned.

7. However the grant of bail will be subject to the following

conditions:-

i. The petitioner shall appear before the Investigating Officer (I.O.) on
every 2nd and 4th Saturdays, at any time between 10 am and 1 pm, for
a further period of 6 months, and thereafter he will report before the
I.O. , as and when directed.

ii. He shall not intimidate or attempt to influence the defacto
complainant, witnesses; nor shall he tamper with the evidence.

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

iv. The petitioner shall not go anywhere near to the residence of the lady
defacto complainant.

v. The petitioner shall not enter into or reside anywhere within the
territorial limits of the Police Station where the lady defacto
complainant is residing until the conclusion of investigation process,
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.

vi. The Investigating Officer will ensure that a Police Constable
preferably a Woman Police Constable is deputed to the residence of
the lady defacto complainant once in six weeks, to ascertain whether
she or her family members are subjected to any intimidation or
B.A. No. 7053 of 2019
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influence by the petitioner or men at his instance. If anything adverse
is brought to the notice of the Investigating Officer, then he shall take
necessary steps in accordance with law.

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 will

stand hereby empowered to consider the plea for cancellation

of bail if required, and pass appropriate orders in accordance

with law.

8. Needless to say, the petitioner will have to adhere to the

various conditions and directions already issued by this Court as per

the order dated 1.10.2019 in B.A. No.6904/2019 in relation to his

involvement in the earlier Crime No.542/2019.

With these observations and directions, the above Bail

Application will stand disposed of.

Sd/-

ALEXANDER THOMAS,
JUDGE
MMG

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