Ashik v. State of Kerala

``` IN THE HIGH COURT OF KERALA AT ERNAKULAM ``` ## _`PRESENT`_ ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 ``` ## _`BAIL APPL. NO. 2121 OF 2023`_ ``` AGAINST THE ORDER/JUDGMENTCRMC 628/2023 OF DISTRICT COURT & SESSIONS COURT, ``` ## _`ERNAKULAM`_ ``` CMP 147/2023 OF JMFC, KAKKANAD (TEMPORARY) ``` ## _`PETITIONER:`_ ``` ASHIK AGED 25 YEARS S/O NAZAR, POTTUNKAL HMT COLONY P.O THRIKKAKKARA NORTH VILLAGE KALAMASSERY, ERNAKULAM, PIN - 682021 BY ADVS. R.ROHITH HARISHMA P. THAMPI ``` ## _`RESPONDENT:`_ ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## _`OTHER PRESENT:`_ ``` T V NEEMA SRPP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. No. 2121 of 2023 ``` ``` ..2.. ``` ## **O R D E R** **Dated this the 23[rd] day of March, 2023** This is an application for regular bail filed by the 8[th] accused in Crime No. 1015 of 2022 of Infopark Police station, Ernakulam. 2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor. 3. I have perused the case diary as such and the documents placed by the learned counsel for the petitioner and the defacto complainant 4. Shown off unnecessary averments, the prosecution allegation is that, at about 1.15 pm on 23.12.2022, the accused herein criminally trespassed upon the office of the defacto complainant where ‘Brawny Brute' Family Studio Health and Bautique Clinic' has been functioning and thereafter, the first accused beat the ``` B.A. No. 2121 of 2023 ``` ``` ..3.. ``` defacto complainant and his staff by using a hammer and a wooden stick and thereby the first accused forcefully obtained a cheque signed by the defacto complainant. The further allegation is that the accused herein robbed away the files, laptop, treatment equipment, i20 car bearing registration No.KL-40-L 3141, ATM card, gold, dress, speaker to the tune of Rs.14,80,000/-. The further allegation is that they have poured salt at the office of the defacto complainant so as to make it appear the same as MDMA along with injections and narcotic drugs and thereafter taken the photographs of the defacto complainant along with those items with intimidation that those photographs would be used to show the defacto complainant as a person engaged in sale of the Narcotic Drugs and Psychotropic Substances. It is alleged further that they beat the defacto complainant and thereby the defacto complainant sustained injuries on his face and eyes. According to the defacto complainant/prosecution, the accused herein was there at the office at 6 pm and all the accused jointly involved in this ``` B.A. No. 2121 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** crime. Pursuant to forwarding of a complaint lodged by the defacto complainant before the Deputy Commissioner of Police as on 24.12.2022, crime was registered at 11.35 pm on 23.12.2022 alleging that the accused herein committed offences punishable under Sections 452, 324, 328, 395, 427 and 506(ii) read with Section 212 of IPC. 5. While pressing for the grant of regular bail to the petitioner, who had been nabbed and detained in custody from 15.01.2023 onwards, the learned counsel for the petitioner submitted that the conduct of the de facto complainant, after the occurrence shadows doubt in the prosecution case. Further, it is submitted that the investigation requiring the custody of the petitioner is practically over. Therefore, taking note of the above aspects, the petitioner may be released on bail and he is ready to co-operate with the investigation and trial. 6. The learned Public Prosecutor would submit that the ``` B.A. No. 2121 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** allegation herein are serious. It is also submitted that accused Nos. 1, 2, 3, 5, 9, 10, and 12 filed anticipatory bail applications before this court vide B.A.Nos. 928, 1004, 1140, 1161 of 2023 before this court, and after considering the rival contentions, including submissions made by the de facto complainant, this court dismissed the above anticipatory bail applications. It is also submitted that since the investigation is at the initial stage, and the recovery of the articles alleged to be taken over by the accused not so far effected, premature release of the petitioner could not be considered. It is also pointed out that the other accused were not arrested so far. 7. On perusal of the case diary, the prosecution allegation is well made out prima facie. On perusal of the wound certificate prepared at Sunrise Hospital, Kakkanadu at 6.26 pm on 23.12.2022, the one and only injury noted by clinical examination is injury peri orbital area. It is to be noted that thereafter, the ``` B.A. No. 2121 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** defacto complainant met Doctor at MAJ Hospital, Edapally on 25.12.2022 in the morning and CT Scan examination in the face of defacto complainant was done. The impression in the CT Scan report are as under: _1. Possible undisplaced fractures noted in roofmedial wall of right orbit._ _2. Pneumo-orbit noted on right_ _3. Polypoidal mucosal thickening noted in bilateral maxillary sinus._ Based on the CT Scan study, undisplaced fractures noted in roof-medial wall of right orbit was diagnosed. 8. Though it is submitted by the learned counsel appearing for the petitioner that the de facto complainant failed to lodge a complaint in time and the available records would go to show that the de facto complainant was illegally detained up to 6 pm on 23.12.2022 and thereafter, he sought medical aid. The crime was registered on 25.12.2022. The de facto complainant lodged a ``` B.A. No. 2121 of 2023 ``` **==> picture [31 x 7] intentionally omitted <==** complaint on 24.12.2023 without much delay to the Deputy Commissioner of Police. Therefore, the prosecution allegations are well made out. It is true that the involvement of the petitioner in another crime viz Crime No. 83 of 2023 of Thrikkakkara police station alleging commission of offences punishable under Sections 147, 148, 324, 326 read with 149 of the IPC is also reported. In the report of Investigating officer repeated instances of Gunda activities in the city are reported, while opposing the bail, apprehending similar occurrences. 9. It is true that the petitioner is a person, who has been involved in one more crime during 2023 itself. This is the second crime registered against him. This crime was registered in the year 2022. The petitioner has been in custody for the last sixty-eight days. On perusal of the prosecution records, the custody of the petitioner for the purpose of investigation found to be not necessary further. Therefore, the petitioner can be enlarged on ``` B.A. No. 2121 of 2023 ``` ``` ..8.. ``` ## bail, on conditions: - i. The petitioner shall be released on bail on his executing bond for Rs.50,000/(Rupees Fifty Thousand Only) with two solvent sureties, each for the like amount to the satisfaction of the Jurisdictional court concerned. - ii. The petitioner shall not intimidate the witnesses or tamper with evidence. He shall co-operate with the investigation and shall be available for trial. - iii. The petitioner shall appear before the Investigating Officer as and when directed, apart from appearing before the Investigating Officer on all Mondays between 9 am and 10 am, for a period of two months. ``` B.A. No. 2121 of 2023 ``` ``` ..9.. ``` iv. The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of this case, so as to dissuade him from disclosing such facts to the court or to any police office. - v. The petitioner shall not leave India without prior permission of the Jurisdictional Court. - Vi. The petitioner shall not involve in any other offence during the currency of bail and any - such event, if reported, or came to the notice of this court, the same shall be a reason to cancel the bail hereby granted. ## **Sd/-** **A. BADHARUDEEN JUDGE** RMV ``` B.A. No. 2121 of 2023 ``` ``` ..10.. ``` ## _`APPENDIX OF BAIL APPL. 2121/2023`_ |_`PETITIONER ANNEXURES`_|| |---|---| |_`Annexure A1`_|_`A TRUE COPY OF THE FIR IN CRIME NO. 1015/2022 OF`_| ||_`INFOPARK POLICE STATION, DATED 25/12/22`_| |_`Annexure A2`_|_`A TRUE COPY OF THE REMAND REPORT FILED BEFORE THE`_| ||_`JUDICIAL FIRST CLASS MAGISTRATE COURT KAKKANAD DATED`_| ||_`15/1/23`_| |_`Annexure A3`_|_`TRUE COPY OF THE ORDER DATED 23.01.2023 IN C.M.P`_| ||_`147/2023 BEFORE THE JUDICIAL FIRST CLASS COURT`_| ||_`KAKKANAD`_| |_`Annexure A4`_|_`CERTIFIED COPY OF THE ORDER DATED 06.02.2023 IN`_| ||_`CRL.M.C 282/2023 BY THE HON'BLE IIND ADDITIONAL`_| ||_`SESSIONS COURT, ERNAKULAM`_| |_`Annexure A5`_|_`CERTIFIED COPY OF THE ORDER DATED 14.02.2023 IN`_| ||_`CRL.M.C 375/2023 BY THE HON'BLE IIND ADDITIONAL`_| ||_`SESSIONS COURT, ERNAKULAM`_| |_`Annexure A6`_|_`CERTIFIED COPY OF THE ORDER DATED 06.03.2023 IN`_| ||_`CRL.M.C 628/2023 BY THE HON'BLE IIND ADDITIONAL`_| ||_`SESSIONS COURT, ERNAKULAM`_| ## _`TRUE COPY`_ ``` P.A.TO JUDGE ```