Abdul Nasar @ Nasi v. State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C. S. Dias
Judgment Date: 2024-02-07
Court Decision / Holding: The bail application is allowed; the petitioner is directed to be released on bail on a bond of Rs.50,000 with two solvent sureties for similar amount, subject to conditions including appearance before the IO on Saturdays for two months or until final report; no inducement or tampering; no new offences; surrender of passport; provide present and permanent addresses and mobile number; court to cancel bail on violation; modifications may be sought; recoveries may be effected if necessary, as permitted by law.
Final Disposition: Bail granted.

Parties to the Case

Appellants / Petitioners

Abdul Nasar @ Nasi

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam District, PIN - 682031
The Station House Officer Koduvally Police Station, Kozhikode District, PIN - 673572

Legal Representation & Advocates

Counsels for Petitioners

• K.Rakesh
• Rajesh Babu Chelat

Counsels for Respondents

• Smt Seetha S., Senior Public Prosecutor

Case Synopsis & Summary

This Bail Application concerns Abdul Nasar alias Nasi, the fifth accused in Crime No. 809 of 2023 registered at Koduvally Police Station, Kozhikode. The petitioner seeks relief under Section 439 CrPC against detention in jail after arrest on 27 January 2024 in connection with offences under IPC Sections 452, 365, 367, 368, 342, 323, 324, 326, 506, and 307 r/w 120B. The prosecution case alleges that on 12 December 2023, the accused trespassed into the shop of the de facto complainant with deadly weapons, abducted him in a car to a two-storey building at Mannikadavu, assaulted him with a wooden stick, and either pushed or kicked him; later the 5th and 6th accused transported the victim to Thamarassery. The police claim the investigation is ongoing and there is a risk of witness tampering, so the bail should be refused. The petitioner contends innocence and false implication; he asserts the investigation is nearly complete with no recovery pending. The court notes that accused 2-4 were enlarged on bail on 24 January 2024 on the ground that the investigation was practically complete and recoveries had been effected, and hence the petitioner deserves a similar order. After hearing, the court allows the bail application on stringent conditions including a bond of Rs.50,000 with two solvent sureties, periodic appearances, non-interference with witnesses, surrender of passport, and cooperation with investigation, and reserves jurisdiction to cancel bail for violations. The decision cites a Supreme Court principle that investigations and recoveries may proceed while on bail.

Provisions of Law Cited

Section 439 of CrPC, 1973

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner submits that he is innocent and falsely implicated; there is no specific overt act against him; he has been in judicial custody since 27.01.2024; investigation is practically complete; no recovery; seeks bail on par with co-accused. He also cites that Annexure B order enlarged accused 2-4 on bail due to completion of investigation.

Contentions of Respondents

The Public Prosecutor argues that the petitioner and 6th accused abducted the victim and that investigation is ongoing; release on bail could lead to intimidation of witnesses and tampering with evidence.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited to support that investigations and recoveries may proceed even while a person is on bail, as stated by the Supreme Court.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945** **BAIL APPL. NO. 833 OF 2024** **CRIME NO.809/2023 OF Koduvally Police Station, Kozhikode AGAINST THE ORDER/JUDGMENT CMP 411/2024 OF JUDICIAL MAGISTRATE OF** ## **FIRST CLASS -I,THAMARASSERY** ## **PETITIONER/S:** ABDUL NASAR @ NASI AGED 48 YEARS S/O. AYAMATH HAJI, MADHUKUTTIKAYIL HOUSE, AVILORA POST, KOZHIKODE DISTRICT, PIN - 673572 BY ADVS. K.RAKESH RAJESH BABU CHELAT ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682031 2 THE STATION HOUSE OFFICER KODUVALLY POLICE STATION, KOZHIKODE DISTRICT, PIN - 673572 ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 833 OF 2024 2 ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 5[th] accused in Crime No.809/2023 of the Koduvally Police Station, Kozhikode, registered against the accused (five in number) for allegedly committing the offences punishable under Sections 452, 365, 367, 368, 342, 323, 324, 326, 506, 307 r/w Sec.120B of the Indian Penal Code. The petitioner was arrested on 27.01.2024. 2. The essence of the prosecution case is that: around 12.45 hours on 12.12.2023, the accused 1 to 3 trespassed in the shop of the defacto complainant with deadly weapons and with an intention to commit the offences, the 1[st] accused by holding a knife to the abdomen of the defacto complainant threatened to kill him. Thereafter, they abducted the defacto complainant in a car bearing registration No.KL 57/Y 9595 and took him to a two storied building at a place named, Mannikadavu. The accused 1 and 2 inflicted injuries on the defacto complainant by hitting him with a wooden stick. The 1[st] BAIL APPL. NO. 833 OF 2024 3 accused pushed and kicked the defacto complainant. Thereafter, the 2[nd] accused hit the defacto complainant with a wooden stick. It is only because the defacto complainant warded off the hit, that he survived. Thereafter, the accused 5 and 6 took the defacto complainant from the place of occurrence to Thamarassery. Thus, the accused have committed the above offences. 3. Heard; Sri.K.Rakesh, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation leveled against him. He has been falsely implicated in the crime. Even going by Annexure A FIR, there is no specific overt act alleged against the petitioner except the fact that he and the 6[th] accused took the defacto complainant to a place at Thamarassery. The petitioner has been in judicial custody since 27.01.2024. The investigation in the case, so far as the petitioner is BAIL APPL. NO. 833 OF 2024 4 concerned, is practically complete. No recovery is to be effected. The learned counsel appearing for the petitioner also submitted that by Annexure B order dated 24.01.2024, this Court has enlarged the accused 2 to 4 on bail on the finding that the investigation in the case is practically complete. Therefore, the petitioner is entitled to a similar order. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that the petitioner and 6[th] accused had taken the defacto complainant from the place of occurrence to Thamarassery. The investigation in the case is still in progress. If the petitioner is let off on bail, there is every likelihood of him intimidating the witnesses and tampering with the evidence. Hence, the application may be dismissed. 6. On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the bar and particularly taking note of the fact that, by Annexure B order, this Court had enlarged the BAIL APPL. NO. 833 OF 2024 5 accused 2 to 4 on bail on the findings that the investigation in the case is practically complete, recovery has been effected and the accused have no criminal antecedents, I am of the definite view that the petitioner's continued detention is unnecessary. Hence, I am inclined to allow the bail application, but subject to stringent conditions. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer on every Saturday between 11 a.m. and 1 p.m. for a period of two months or till the final report is laid, whichever is earlier. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner shall not directly or indirectly make any BAIL APPL. NO. 833 OF 2024 6 inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond; (v) The petitioner shall furnish his present address and permanent address, and his mobile number to the court below and the Investigating Officer. (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to BAIL APPL. NO. 833 OF 2024 7 consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. sd/- ## **C.S.DIAS, JUDGE** rkc/07.02.24 BAIL APPL. NO. 833 OF 2024 8 ## **APPENDIX OF BAIL APPL. 833/2024** PETITIONER ANNEXURES Annexure A A TRUE COPY OF THE FIR AND FIS IN CRIME NO.809/2023 OF THE KODUVALLY POLICE STATION DATED 18-12-2023 Annexure B A TRUE COPY OF THE ORDER DATED 24-1-2024 OF THIS HON'BLE COURT IN B.A.NO.421/2024 Annexure C A TRUE COPY OF THE ORDER IN C.M.P.NO.411/2024 FILED BEFORE J.F.C.M-I, THAMARASSERY DATED 29-1-2024