Kerala High Court
Safar Ahemad vs State Of Kerala on 24 March, 2023
B.A.No.2367/23 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 24TH DAY OF MARCH 2023 / 3RD CHAITHRA, 1945
BAIL APPL. NO. 2367 OF 2023
[CRIME NO.1150/2022 OF KARUNAGAPALLY POLICE STATION, KOLLAM]
PETITIONER/2ND ACCUSED:
SAFAR AHEMAD,
AGED 48 YEARS,
S/O.NAZIR AHAMMAD, RESIDING AT AHAMMAD MANZIL,
PODA NORTH.P.O, KARUNAGAPPALLI, KOLLAM DISTRICT,
KERALA STATE, PIN - 690 544.
BY ADV.K.C.SUDHEER
RESPONDENT/STATE:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682 031.
SRI.M.P.PRASHANTH - PUBLIC PROSECUTOR
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
24.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
B.A.No.2367/23 2
ORDER
This is an application filed u/s 439 of the Code of Criminal Procedure seeking regular bail.
2. The petitioner is the 2nd accused in Crime No.1150 of 2022, which was registered for the offences punishable under Sections 366, 370(2), 370(A) (2), 376(2)(n), 376D, 511 of 376, 420, 342, 307 read with 34 IPC and Section 66E of Information Technology Act.
3. The Prosecution case is as follows:
The victim was an employee of M/s.AR Enterprises, run by the 1st accused. The victim is a lady aged 37 years and living separately from her husband. The 1 st accused allegedly promised her to marry, and under the said pretext, she was taken to the house of the 1st accused in the year 2016 and subjected to rape. It is also alleged that he also had taken her nude photos and he used to threaten her by showing the same. The incident of rape was repeated on several occasions thereafter. It is also alleged that on one occasion, the 2nd accused has also committed rape on her with the connivance of the 1 st accused. Besides the same, the accused persons made the de facto complainant believe that they would make her a partner in the partnership business being run B.A.No.2367/23 3 by them in Tamil Nadu, named 'Sun Rock Traders' and persuaded her to agree to invest an amount of Rs.35,00,000/-. The de facto complainant mortgaged her property and raised an amount of Rs.19,00,000/-, which was handed over to them. Later, they did not make her a partner, resulting in some disputes between them. Finally, on 24.10.2020, the accused persons invited the de facto complainant to an institution named "Drane" at Panampally Nagar, Ernakulam, by promising to return the amount to her. When she reached there, the 1st accused caught hold of her neck and attempted to kill her by strangulating her. The 1 st and 2nd accused also committed rape on her as well. The complaint was submitted in such circumstances. In connection with the investigation of the said case, the petitioner was arrested on 14.03.2023, and since then, he has been under judicial detention.
4. Heard Sri.K.C.Sudheer, learned counsel for the petitioner and Sri.M.P.Prashanth, learned Public Prosecutor for the State.
5. The learned counsel for the petitioner submits that the petitioner is falsely implicated in the said case. Allegations of sexual assault committed by the petitioner are stoutly denied. According to him, the petitioner, along with the 1 st accused, B.A.No.2367/23 4 entered into an agreement with the de facto complainant, on 18.06.2019, in connection with the investment of Rs.35,00,000/- proposed to be made by the de facto complainant in the business establishment run by the petitioner as well as the 1 st accused. In compliance with the terms and conditions therein, the de facto complainant paid an amount of Rs.19,00,000/-. Later, some disputes arose between them, and a complaint happened to be submitted at the instance of the de facto complainant at Karunagappally Police Station. The aforesaid matter was settled between them, as evidenced by Annexure-A4 General Dairy entry in Karunagappily Police Station, and as part of the settlement, the petitioner agreed to repay the amount. Towards the said payment, three cheques signed by the petitioner were also handed over. Out of the three cheques, one was encashed, and the de facto complainant received an amount of Rs.10,00,000/-. To substantiate the said transaction, the learned counsel for the petitioner placed the statement of accounts as Annexure A2 before this court. It is specifically contended by the learned counsel for the petitioner that, in the said complaint, nothing was mentioned concerning any sexual assault, even though, going by the statement of the victim in this case, the incident of the sexual B.A.No.2367/23 5 assault was committed in the year 2020. It is further pointed out that, as the two cheques handed over by the petitioner to the de facto complainant were dishonoured, the legal notice dated 09.06.2020 was sent on behalf of the de facto complainant as evidenced by Annexure A3. The complaint, which is the subject matter of the case, was submitted thereafter, i.e. during the month of January, 2022. Thus, it is pointed out that the basic dispute between the parties is relating to monetary transactions, which resulted in the submission of a complaint with false allegations. It is further contended that the petitioner has been in custody since 14.03.2023, and further incarceration of the petitioner is not at all necessary.
6. On the other hand, the learned Public Prosecutor would seriously oppose the bail application. It is contended that there are serious allegations of sexual assault in this case against the 1st and 2nd accused. Monetary transactions are also highlighted, and it is also stated that on one occasion, the 1 st accused and the petitioner herein attempted to commit murder of the petitioner by strangulation. It is also pointed out that the Police have moved the jurisdictional court for custody of the B.A.No.2367/23 6 petitioner. In such circumstances, the learned Public Prosecutor seeks dismissal of the bail application.
7. In response to the contentions raised by the learned Public Prosecutor regarding the application submitted by the Police for custody of the petitioner, it is submitted by the learned counsel for the petitioner that the learned Magistrate has granted police custody of the petitioner for a period of four days and the said period expired on 23.03.2023.
8. I have gone through the records and heard the contentions raised from either side. It is discernible that the main allegations are against the 1 st accused, who allegedly made a promise to marry the de facto complainant and committed rape on her under that pretext. The aforesaid incident occurred in the year 2016. Even though it is contended that on several occasions, the same was repeated, the complaint was submitted only in the month of July, 2022. Several monetary transactions have occurred between the parties even after the alleged rape. As pointed out by the learned counsel for the petitioner, an agreement was also entered into between the parties in the year 2019 as to the investment proposed to be made by the de facto complainant and in terms of the conditions entered between B.A.No.2367/23 7 them, an amount of Rs.19,00,000/- was also handed over by the defacto complainant to the petitioner. Besides the same, Annexure-A4 GD entry in the Karunagapplly Police Station would also indicate the complaint submitted by the de facto complainant concerning the monetary transactions relating to the same, and ultimately, it was settled between the parties, as the 2 nd respondent had handed over three signed cheques towards repayment of the said amount. Annexure-A3 would indicate the issuance of the legal notice at the instance of the de facto complainant, demanding certain amounts from the petitioner herein, and the said notice is dated 09.06.2022, and this complaint is submitted after the same. Thus, when all the aforesaid aspects are taken into consideration, I find some force in the contention put forward by the learned counsel for the petitioner. However, since the matter is now under investigation, I do not propose going deeper into the said questions. Now, it is learned that the petitioner was granted Police custody for a period of four days, and the said period is already over.
9. In such circumstances, taking note of the entire sequence of events as revealed from the documents produced before this Court, I do not find any justification in continuing B.A.No.2367/23 8 further incarceration of the petitioner. The petitioner can be released on bail with appropriate conditions to ensure his continued cooperation with the investigation. Therefore, this bail application is allowed, and the petitioner is 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 solvent sureties each for the like sum 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 Wednesday 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.
(vii) The petitioner shall not leave the State of Kerala without the permission of the trial Court. B.A.No.2367/23 9
(viii) The petitioner shall surrender his passport before the investigating officer, who shall produce the same before the jurisdictional court, and if the petitioner does not have a valid passport, he shall file an affidavit to that effect.
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.
Sd/-
ZIYAD RAHMAN A.A. JUDGE DG/24.3.23 B.A.No.2367/23 10 APPENDIX OF BAIL APPL. 2367/2023 PETITIONER ANNEXURES Annexure-A1 COPY OF AGREEMENT DATED 18/6/2019 EXECUTED BY THE PETITIONER AND 1ST ACCUSED IN FAVOUR OF DE-FACTO COMPLAINANT Annexure2 STATEMENT OF ACCOUNT DATED 21/6/2022 OF THE PETITIONERS BANK ACCOUNT TO SHOW THAT THERE WERE MONEY TRANSACTION WITH THE DE-
FACTO COMPLAINANT Annexure-A3 ADVOCATE NOTICE ISSUED ON THE INSTRUCTION OF THE DE-FACTO COMPLAINANT TO THE PETITIONER DATED 9/6/2022 Annexure-A4 COPY OF THE GD ENTRY ALONG WITH RECEIPT OF INFORMATION ACT OF THE SETTLEMENT ARRIVED ON 2/10/2022 BY THE PETITIONER AND DE-FACTO COMPLAINANT BEFORE THE KARUNAGAPPALLI POLICE STATION AND WHICH WAS RECEIVED AS PER REQUEST MADE BY INFORMATION ACT Annexure-A5 COPY OF CERTIFICATE OF IMPORTER-EXPORTER CODE OF THE SUN ROCK TRADERS DATED 22/12/2016 Annexure-A6 THE COPY OF THE ORDER IN CRL M C NO 39/2023 OF HONOURABLE DISTRICT AND SESSIONS COURT KOLLAM DATED 14/2/2023