AL SULFIYAN v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 14[TH] DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 BAIL APPL. NO. 2063 OF 2024** **CRIME NO.1667/2023 OF Kilikolloor Police Station, Kollam PETITIONER/S:** **AL SULFIYAN AGED 23 YEARS S/O NIZARUDEEN, SHABNA MANZIL,TKMC P.O, KOLLAM., PIN - 691005** **BY ADVS. M.R.SASITH ANJANA SURESH.E LIDHIYA GEORGE** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 SAYED BADUSHA S/O SIRAJUDEEN SHEHINA MANZIL,VARUVILA VEEDU,KALLUMTHAZAM P.O, KARUNNIYA NAGAR 32,KILIKOLLOR CHERY, KILIKOLLOOR VILLAGE, KOLLAM., PIN - 691004 3 THE STATION HOUSE OFFICER KILIKOLLOOR POLICE STATION, KOLLAM., PIN - 691004 BY ADV LIDHIYA GEORGE** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2063 OF 2024 2 ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 2[nd] accused in Crime No.1667/2023 of the Kilikolloor Police Station, Kollam, registered against the accused (three in number), for allegedly committing the offences punishable under Sections 294(b), 323, 324, 326 and 308 r/w Sec.34 of the Indian Penal Code (in short, ‘IPC’). The petitioner was arrested on 08.03.2024. 2. The crux of the prosecution case is that: on 09.12.2023 at around 22.30 hours, the defacto complainant had questioned the 1[st] accused about a dispute that occurred between him and his brother. The said questioning lead to an altercation and the accused with an intention to commit culpable homicide had assaulted the victim multiple times with their hands and the 1[st] accused hit him with a piece of concrete on his head and face. It is only because the victim warded off the attack, he did not lose his life. However, he sustained a fracture on his nose. The other accused encouraged the accused 1 to 3 to commit the above BAIL APPL. NO. 2063 OF 2024 **==> picture [7 x 9] intentionally omitted <==** crime. Hence, the accused have committed the above offence. 3. Heard; Sri. Sasith M.R., the learned counsel appearing for the petitioner, Smt.Seetha S., the learned Public Prosecutor and Smt.Lidiya George, the learned counsel for the 2[nd] respondent. 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. Sections 326 and 308 have been deliberately incorporated to deny bail to the petitioner. In any given case, the petitioner has been in judicial custody since 08.03.2024, the investigation in the case is practically complete and recovery has been effected. Therefore, the petitioner's further detention is unnecessary. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that the investigation is in progress. She made available the accident register cum wound certificate of the injured dated 09.12.2023 issued by BAIL APPL. NO. 2063 OF 2024 4 the District Hospital, Kollam to substantiate the fact that the defacto complainant suffered a nasal bone fracture and also other injuries. She refuted the contention of the learned counsel for the petitioner that the subject matter in dispute has been settled between the parties. She submitted that if the petitioner is released on bail, it would hamper with the full and proper investigation of the crime. Hence, the application may be dismissed. 6. The learned counsel for the 2[nd] respondent also submitted that the subject matter in dispute between the parties has been settled. Therefore, the 2[nd] respondent has no objection in the petitioner being released on bail. 7. An evaluation of the prosecution allegation and the materials placed on record prima-facie establishes that the accused in furtherance of their common intention had formed an unlawful assembly and hit the defacto complainant with hands and stone and he sustained a nasal bone fracture which stands corroborated by the accident register cum wound certificate of the injured. The offences alleged against the petitioner and other accused are BAIL APPL. NO. 2063 OF 2024 5 heinous and grave in nature. Merely because the petitioner and the 2[nd] respondent have purportedly arrived at an out of court settlement, does not entitle them to be released on bail. 8. The materials on record reveal that the petitioner is also an accused in Crime No.299/2021 which shows that he is a person with criminal antecedents. 9. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.** [(2010) 14 SCC 496], the Honourable Supreme Court has observed as follows: - “9. …...... It is well settled that, among other circumstances, - the factors to be borne in mind while considering an application for bail are: - (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; - (ii) nature and gravity of the accusation: - (iii) severity of the punishment in the event of conviction; - (iv) danger of the accused absconding or fleeing, if released on bail; - (v) character, behaviour, means, position and standing of the accused; - (vi) likelihood of the offence being repeated; - (vii) reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail.” BAIL APPL. NO. 2063 OF 2024 6 10. **Chandra Sarkar v.** Subsequently, in **Kalyan Rajesh Ranjan Alias Pappu Yadav and another** [(2005) 2 SCC 42], the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the evidence or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the evidence by the accused. 11. In **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], the Hon'ble Supreme Court has held thus: “12. The determination of whether a case is fit for the BAIL APPL. NO. 2063 OF 2024 7 grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” ## 12. It is also worth recollecting the observations made by the Hon'ble Supreme Court in **Ash Mohammad v. Shiv Raj Singh @ Lalla Babu & Anr** [(2012) 9 SCC 446] in the following lines: “30. We may usefully state that when the citizens are scared to lead a peaceful life and this kind of offences usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy. There should have been proper analysis of the criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused deserves to be BAIL APPL. NO. 2063 OF 2024 8 enlarged on bail or not and only thereafter issue of imposing conditions would arise. We do not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter we are inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused.” On an anxious consideration of the facts, the materials placed on record, the rival submissions made across the Bar and on comprehending the nature, seriousness and gravity of the accusations leveled against the petitioner, that the petitioner was only arrested on 08.03.2024, that the investigation in the case is in progress, I am not convinced that the petitioner has made out sufficient grounds to be released on bail. Hence, I am not inclined to allow the bail application. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS,JUDGE** Rkc/14.03.24 BAIL APPL. NO. 2063 OF 2024 9 BAIL APPL. NO. 2063 OF 2024 10 ## **APPENDIX OF BAIL APPL. 2063/2024** ## **PETITIONER ANNEXURES** |**Annexure A1**|**THE TRUE COPY OF THE FIR REGISTERED BY THE**| |---|---| ||**3RD RESPONDENT**| |**Annexure A2**|**THE COPY OF AFFIDAVIT FILED BY THE 2RD**| ||**RESPONDENT**| |**Annexure A3**|**THE TRUE COPY OF THE REMAND REPORT DATED**| ||**08.03.2024**|