High Court of KeralaSingle JudgeBail granted (pre-arrest bail) to the petitione...

Ashkar A.S and Mohammed Bilal S. v. State of Kerala

Case / Petition Number:BAIL APPL. NO. 3679 OF 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C. S. Dias
Judgment Date
2024-06-11
Court Decision / Holding
The application is allowed. The petitioners are granted pre-arrest bail under Section 438 CrPC on terms: surrender before the Investigating Officer within 10 days; bond of Rs. 50,000 with two solvent sureties for Rs. 50,000 each; appear for interrogation as directed; refrain from inducement or witness tampering; surrender any passport within a week; abstain from involvement in other offences; and court may cancel bail for violation of conditions. The order clarifies that it is for purposes of the bail application and not a determination on merits, and cites Sushila Aggarwal v. State (NCT of Delhi) and another.
Final Disposition
Bail granted (pre-arrest bail) to the petitioners under Section 438 CrPC, with specified conditions.

Parties to the Case

Appellants / Petitioners

  • Ashkar A.S.
  • Mohammed Bilal S.

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

  • • Mithun P.
  • • Afsal Khan H.

Counsels for Respondents

  • • Sri C. S. Hrithwik

Case Synopsis & Summary

This is a bail application under Section 438 CrPC before the Kerala High Court (Ernakulam) in Bail Application No. 3679 of 2024 filed by Ashkar A.S. and Mohammed Bilal S. against the State of Kerala. The petitioners are accused no. 7 and 8 in Crime No. 548/2024 of Kazhakkuttom Police Station, Thiruvananthapuram, arising from alleged offences including 143, 147, 148, 149, 342, 294(b), 323, 324 and 307 read with Section 149 IPC, in a case where eleven persons were involved. The prosecution outlines that on 20.04.2024, a common intention led to an unlawful assembly; the 3rd accused slapped the complainant, the 2nd, 4th and 5th accused beat his brother, and the 1st accused stabbed the complainant in the chest, back, neck and hand; the 1st accused also struck the brother with a steel dustbin, causing injuries to both. The petitioners contend there is no specific overt act attributable to them to attract the non-bailable offence of Section 307, and their custodial interrogation is unnecessary. They point to Annexure A2, which granted pre-arrest bail to the 11th accused on a similar ground. The Public Prosecutor initially opposes bail, arguing investigation is ongoing, but concedes the 11th accused obtained pre-arrest bail for lack of overt acts against him. The court reasons the petitioners are similarly situated to the 11th accused and grants pre-arrest bail subject to standard conditions, including surrender within 10 days, Rs.50,000 bond with two sureties, appearance for interrogation, no inducement, passport surrender, and no offence involvement. The order notes that these observations are for considering the application and do not reflect on merits, citing Sushila Aggarwal v. State (NCT of Delhi) and another.

Provisions of Law Cited

Section 438 of the Code of Criminal Procedure, 1973Sections 143, 147, 148, 149, 342, 294(b), 323, 324 and 307 read with Section 149 of the Indian Penal Code

Legal Doctrines & Maxims

  • Power of Investigating Officer to investigate and effect recoveries while on bail (as laid down in Sushila Aggarwal v. State (NCT of Delhi) and another)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that they are totally innocent and that Annexure A1 (FIR) lacks any specific overt act attributed to them that would attract the non-bailable offence under Section 307 IPC. They emphasize that only the 1st accused is alleged to have inflicted grievous injuries, and there is no custodial necessity for interrogation. They seek pre-arrest bail on the same grounds as the 11th accused, referring to Annexure A2 (order granting bail). They argue parity with the 11th accused and point out that no recoveries are to be effected from them; they are not involved in any other offence and undertake to cooperate with investigations while on bail. They request that standard bail conditions be imposed and that they be treated similarly to the 11th accused.

Contentions of Respondents

The State’s counsel opposes unconditional bail, noting ongoing investigation and the potential risk of interference with witnesses or tampering with evidence. He concedes, however, that the 11th accused received pre-arrest bail based on the finding that the overt act was alleged only against the 1st accused, suggesting parity may be appropriate if the petitioners are similarly situated. The prosecutor emphasizes the gravity of the offences and the need to protect the investigation, while acknowledging the court’s past order for the 11th accused as a precedent.”

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sushila Aggarwal v. State (NCT of Delhi) And another2020 (1) KHC 663PositiveCited to support the principle that Investigating Officer may continue to investigate and effect recoveries while the accused is on bail, and to guide the permissible scope of bail conditions.

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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** **TUESDAY, THE 11[TH] DAY OF JUNE 2024 / 21ST JYAISHTA, 1946** **BAIL APPL. NO. 3679 OF 2024** **CRIME NO.548/2024 OF Kazhakuttam Police Station,** ## **Thiruvananthapuram** ## **PETITIONER/S:** **1 ASHKAR A.S AGED 24 YEARS S/O SIM, RESIDING AT V.T HOUSE, CHERAMANTHURUTH, PUTHUKURUCHI P.O., KADINAMKULAM, THIRUVANANTHAPURAM, PIN - 695303 2 MOHAMMED BILAL S. AGED 22 YEARS C/O SHARAFI, RESIDING AT KAVIL VEEDU, PUTHUKURUCHI P.O., KADINAMKULAM, THIRUVANANTHAPURAM, PIN - 695303** **BY ADVS. MITHUN P. AFSAL KHAN H.** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** ## **OTHER PRESENT:** ## **SSR PP SRI C S HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 11.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3679 OF 2024 2 ## **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 8 and 7 in Crime No.548/2024 of the Kazhakkuttom Police Station, Thiruvananthapuram, registered against the accused (11 in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 149, 342, 294(b), 323, 324 and 307 r/w Section 149 of the Indian Penal Code. 3. The essence of the prosecution case is that; on 20.04.2024, the accused, in prosecution of their common intention, formed an unlawful assembly and the 3[rd] accused slapped the defacto complainant while the accused 2, 4 and 5 beat his brother. While the defacto complainant tried to intervene in the matter, the 1[st] accused stabbed him multiple times on his chest, back, neck and hand causing deep and incised injuries. BAIL APPL. NO. 3679 OF 2024 3 Thereafter, the 1[st] accused also struck the defacto complainant's brother with a steel dustbin and caused injuries to him. Thus, the accused have committed the above offences. 4. Heard; Sri.Mithun P., the learned counsel for the petitioners and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure A1 remand report would show that there is no specific overt act alleged against the petitioners so as to attract the offence under Section 307 of the Indian Penal Code, which is the only non-bailable offence. The specific overt act is alleged only against the 1[st] accused for having inflicted grievous injuries on both the defacto complainant and his brother. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. By Annexure A2 order dated 24.05.2024, this Court has granted the 11[th] accused an order of pre-arrest BAIL APPL. NO. 3679 OF 2024 4 bail in B.A.No.4059/2024. The petitioners are entitled to the benefit of a similar order. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that if the petitioners are granted orders of pre-arrest bail, it would hamper the investigation. Nonetheless, he conceded to the fact that the 11[th] accused was granted an order of pre-arrest bail, by this Court as per Annexure A2 order on the finding that the specific overt act is only alleged against the 1[st] accused. 7. On analysing the materials on record, it can be seen that the specific overt act is only alleged against the 1[st] accused who struck the defacto complainant's brother with a steel dust bin and caused injuries to him. It is taking note of the said fact, this Court granted the 11[th] accused an order of pre-arrest bail as per Annexure A2 order. The petitioners are similarly situated to the 11[th] accused. Therefore, I am of the view that the petitioners BAIL APPL. NO. 3679 OF 2024 5 are also entitled to a similar order. Hence, I am inclined to allow the application. In the result, the application is allowed subject to the following conditions :- - (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioner's arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioner shall not directly or indirectly make any 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; BAIL APPL. NO. 3679 OF 2024 6 - (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before said court within the said period; - (vi) The petitioner 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. - (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 petitioner even while the petitioner is on bail as laid down BAIL APPL. NO. 3679 OF 2024 7 by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) And another** [2020 (1) KHC 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- rkc/11.06.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 3679 OF 2024 8 ## **APPENDIX OF BAIL APPL. 3679/2024** ## **PETITIONER ANNEXURES** **Annexure A1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 548 OF 2024 OF KAZHAKUTTAM POLICE STATION DATED 21.4.2024 Annexure A2 TRUE COPY OF THE ORDER IN BA NO 4059 OF 2024 DATED 24.05.2024**