Ajmal Khan M A and others v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2222 OF 2024 ``` ## **`CRIME NO.266/2024 OF NORTH PARAVUR POLICE STATION, ERNAKULAM PETITIONERS/ACCUSED:`** - **`1 AJMAL KHAN M A AGED 30 YEARS`** - **`S/O ABDUL SALAM M H MUNDICHIRA, VALLUVALLY, KOTTUVALLY VILLAGE KONNAMMAVU P.O, PARAVUR TALUK ERNAKULAM, PIN - 683518`** - **`2 JAHANGEER T Y AGED 48 YEARS`** - **`S/O MUHAMMED YOUSAF THOPPILPARAMBU HOUSE, PARAVUR VILLAGE PARAVUR TALUK ,MANNAM P.O, ERNAKULAM, PIN - 683520`** - **`3 RIBIN K A AGED 38 YEARS`** - **`S/O KK ABDUL RAHIMAN KANIYAMPARAMBIL HOUSE, NORTH PARAVUR VILLAGE, PARAVURTHARA KARA, PARAVUR TALUK ERNAKULAM, PIN - 683513`** - **`4 ARON B SRAMBIKKAL AGED 22 YEARS`** - **`S/O BIJOY SRAMBIKKAL SRAMBIKKAL HOUSE, PARAVUR VILLAGE, PARAVUR TALUK, PARAVUR P.O, ERNAKULAM, PIN - 683513`** - **`5 REJI M S AGED 51 YEARS`** - **`S/O SARASAN MATHAYIL HOUSE,KOTTUVALLY VILLAGE, PARAVUR TALUK, KAITHARAM P.O ERNAKULAM., PIN - 683519`** ## **`BY ADV ANOOP V.NAIR`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER NORTH PARAVUR POLICE STATION ERNAKULAM DISTRICT, PIN -`** ``` B.A. NO. 2222 OF 2024 ``` 2 ``` 683513 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. NO. 2222 OF 2024 ``` 3 Dated this the 12[th ] day of April, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused 1 to 5 in Crime No.266/2024 of the North Paravur Police Station, Ernakulam registered against them, for allegedly committing the offences punishable under Sections 134, 323, 326, 308 r/w Section 34 of the Indian Penal Code. 3. The crux of the prosecution allegation is that: on 12.3.2024, at around 17.45 hours, the accused in furtherance of their common intention, formed themselves into an unlawful assembly, the first accused wrongfully restrained the de facto complainant and attacked with a chair and the de facto complainant suffered a grievous injury. The accused 2 to 5 pulled ``` B.A. NO. 2222 OF 2024 ``` 4 down the de facto complainant and assaulted him with bare hands. Thus, the accused have committed the above offences. 4. Heard; Sri. Anoop V. Nair, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. They have been falsely implicated in the crime. The offence under Section 308 of IPC has been deleted by the Investigating Officer. The petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that there is a specific overt act alleged against the first petitioner/first accused who used a chair and assaulted the de facto complainant and the de facto complainant suffered a fracture on the base of the 5[th] metacarpal right hand. She made available the discharge certificate issued by the Don Bosco Hospital, ``` B.A. NO. 2222 OF 2024 ``` 5 North Paravur dated 19.3.2024, to substantiate her assertions. She did not dispute the fact that Section 308 of the IPC has been deleted. Nonetheless, she submitted that the first petitioner/first accused’s custodial interrogation is necessary and recovery is to be effected. She also did not dispute the fact that there is no specific overt act alleged against the accused 2 to 5/petitioners 2 to 5. 7. On an evaluation of the Annexure I-FIR, it can be gathered that the specific overt act is alleged against the first petitioner who used a chair and assaulted the de facto complainant. The discharge certificate of the de facto complainant prima facie shows the involvement of the first petitioner in the crime, who allegedly caused a grievous injury to the de facto complainant. However, there is no specific overt act alleged against the petitioners 2 to 4 who have only assisted and aided the first petitioner to commit the above offences. On an overall appreciation of the facts, the rival submissions across the Bar, and the materials placed on ``` B.A. NO. 2222 OF 2024 ``` 6 record, I am of the definite view that since the specific overt act alleged against the first petitioner, his custodial interrogation is necessary and recovery is to be effected. However, I hold that the first petitioner has not made out any convincing grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. Nonetheless, as there is no specific overt act alleged against the petitioners 2 to 5, I am of the firm view that their custodial interrogation is not necessary. Hence, I am inclined to allow the application filed by the petitioners 2 to 5, but subject to the condition that the petitioners 2 to 5 co-operate with the investigation. In the result, (I) The application filed by the first petitioner/1st accused is dismissed. Nonetheless, I direct that, if the first petitioner surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the first petitioner ``` B.A. NO. 2222 OF 2024 ``` 7 moves an application for bail, the jurisdictional Court shall consider the bail application on its merits. If the first petitioner does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the first petitioner as if no order has been passed in this case. (II) The application filed by the petitioners 2 to 5/ accused 2 to 5 is allowed subject to the following conditions: i) The petitioners 2 to 5 are directed to surrender before the Investigating Officer within ten days from today. ii) In the event of the arrest of the petitioners 2 to 5, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the petitioners 2 to 5 on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only), each with two solvent sureties for the like amount each, to the ``` B.A. NO. 2222 OF 2024 ``` 8 satisfaction of the jurisdictional court; iv) The petitioners 2 to 5 shall co-operate with the investigation and make themselves available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; v). The petitioners 2 to 5 shall not intimidate the witnesses or interfere with the investigation in any manner; vi). The petitioners 2 to 5 shall not get involved in any other offence while on bail. vii).In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. viii). Applications for deletion/modification of the bail conditions shall also be filed before the court below. ``` B.A. NO. 2222 OF 2024 ``` 9 (ix) 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 petitioners 2 to 5 even while the petitioners 2 to 5 are 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** rmm12/4/2024