Bail Application No. 10362 of 2023 (Fazil and Sulfikker Ali E.U. v. State of Kerala and Sulfiya Ajeeb)

# `*IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 ``` ## `BAIL APPL. NO. 10362 OF 2023` ``` CRIME NO.620/2023 OF Perumbavoor Police Station, Ernakulam ``` ## `PETITIONERS:` ``` 1FAZIL, AGED 28 YEARS S/O ISMAIL, NELLAKUZHI HOUSE , NELLIKUZHI P.O,CHIRAPPADY ERNAKULAM, PIN - 686691 2SULFIKKER ALI E.U, AGED 28 YEARS S/O USMAN,EARETHAN HOUSE, ALLAPRA P.O,KANDANTHARA, PERUMBAVOOR,ERNAKULAM, PIN - 683556 BY ADVS. AJEESH M UMMER ASHIDHA SHAMSU ``` ## `RESPONDENTS:` ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2SULFIYA AJEEB, AGED 28 YEARS,W/O AJEEB, EERATHAN HOUSE, KANDANTHARA, VENGOLA, PERUMBAVOOR, ERNAKULAM IS IMPLEADED AS ADDITIONAL RESPONDENT 2 AS PER ORDER DATED 29-11-23 IN CRL MA 1/23 BY ADVS. K.I.SAGEER MUHAMMED YASIL ``` ``` SRI G. SUDHEER (PP) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A.No.10362 of 2023 ``` 2 ## **ORDER** Petitioners are accused Nos.6 and 7 in Crime No.620 of 2023 of Perumbavoor Police Station, Ernakulam District, alleging commission of offences under Sections 43, 144, 147, 148, 323, 324, 326, 294(b), 506 read with Section 149 of the Indian Penal Code. The bail application filed by the petitioners along with accused No.4 was dismissed by me by order dated 13.09.2023 in B.A No.7618 of 2023. The order is on record as Annexure A3. 2. The allegation against the petitioners is that owing to some disputes of civil nature between the paternal uncle of the defacto complainant and the accused persons, the accused persons had formed themselves into an unlawful assembly on 28-05-2023 at about 9.30 p.m and had attacked the paternal uncle of the de facto complainant using helmet and iron rods as a result of which he sustained serious injuries and thereby they committed the offences alleged against ``` B.A.No.10362 of 2023 ``` 3 them. 3. The learned counsel appearing for the petitioners would submit that accused Nos.2 and 3 against whom more serious allegations are raised, approached this Court by filing B.A Nos.8874 of 2023 and 8332 of 2023 and this Court by order dated 07.11.2023 had granted anticipatory bail to them. It is submitted that the de facto complainant and some of the accused are close relatives and the allegations were raised only on account of property disputes between them. It is submitted that the marriage of the sister of the 2[nd] petitioner was held on the day in question and the 1[st] petitioner had only come there to attend the marriage. It is submitted that the petitioners were not even present at the scene and they were unnecessarily roped in as accused in the case. 4. The learned Public Prosecutor submits that there is no change of circumstances warranting the ``` B.A.No.10362 of 2023 ``` 4 grant of anticipatory bail to the petitioners. It is submitted that the investigation is only progressing. It is submitted that the recovery is yet to be effected. It is submitted that the uncle of the de facto complainant suffered serious injuries owing to the attack by the petitioners and other accused. 5. The learned counsel appearing for the de facto complainant would reiterate the contentions taken by the learned Public Prosecutor. It is submitted that clear allegations have been raised against the petitioners also. It is submitted that merely because accused Nos.2 and 3 have already been granted bail, the petitioners cannot be granted bail as it is settled law that there cannot be any parity in the matter of consideration of bail applications and the role played by each of the accused has to be properly analysed while considering whether the accused who have approached the Court are entitled to bail. 6. Having heard the learned counsel for the ``` B.A.No.10362 of 2023 ``` 5 petitioners, the learned Public Prosecutor and the learned counsel appearing for the defacto complainant, I am of the view that the petitioners can also be granted anticipatory bail subject to conditions. It is true that the earlier bail application filed by the petitioners was dismissed by this Court through Annexure A3 order. However, this Court has granted anticipatory bail to accused Nos.2 and 3 (see Annexure A5 order). 7. The submission of the learned counsel for the petitioners that more serious allegations are raised against accused Nos.2 and 3 appears to be prima facie correct. Though, as rightly pointed out by the learned counsel for the defacto complainant, there is no question of any parity while considering bail applications filed by different accused in the same case, where the accused against whom more serious allegations are raised have been granted anticipatory bail by this Court, the said fact can e considered by ``` B.A.No.10362 of 2023 ``` 6 this Court. Therefore, petitioners can be granted anticipatory bail subject to conditions and it is directed that the petitioners shall be released on bail, in the event of arrest in connection with Crime No.620 of 2023 of Perumbavoor Police Station subject to the following conditions: (i) Petitioners shall execute separate bonds for sums of Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like sum to the satisfaction of the arresting officer; (ii) Petitioners shall appear before the investigating officer in Crime No.620 of 2023 of Perumbavoor Police Station as and when called upon to do so until further orders; (iii) Petitioners shall not attempt to interfere with the investigation or to influence or intimidate any witness in Crime No.620 of 2023 of Perumbavoor Police Station. ``` B.A.No.10362 of 2023 ``` 7 (iv) Petitioners shall not involve in any other crime while on bail. (v) Petitioner shall surrender their passports before the jurisdictional court. If the petitioners do not have a passport, they shall execute affidavits to that effect and file the same before the said court within seven days of release on bail. It is made clear that the petitioners shall be in deemed custody while on bail as held in **Sushila Aggarwal & Others v. State (NCT Of Delhi) and Another** [2020 (5) SCC 1]. If any of the aforesaid conditions are violated, it is open to the Investigating officer in Crime No.620 of 2023 of Perumbavoor Police Station or the defacto complainant to approach the jurisdictional court for cancellation of bail. **Sd/GOPINATH P. JUDGE** SSK/12/12 ``` B.A.No.10362 of 2023 ``` 8 ## `APPENDIX OF BAIL APPL. 10362/2023` ``` PETITIONER ANNEXURES Annexure 1A TRUE COPY OF THE FIR IN CRIME 623/2023 OF PERUMBAVOOR POLICE STATION DATED 30.05.2023 Annexure 2. A TRUE COPY OF THE FIR AND FIS IN CRIME 620/2023 DATED 30.05.2023 Annexure 3A TRUE COPY OF THE ORDER IN BA 7618/2023 DATED 13.09.2023 Annexure 4A TRUE COPY OF THE MARRIAGE CERTIFICATE OF THE SISTER OF THE SECOND PETITIONER, THE DAUGHTER OF THE FIRST ACCUSED Annexure 5A TRUE COPY OF THE ORDER IN BA 8874/2023 AND BA 8332/2023 DATED 07.11.2023 Annexure 6A TRUE COPY OF THE ORDER IN CRL.M.C 1627/2023 OF HON,BLE COURT OF SESSIONS, ERNAKULAM DATED 15/06/2023 ```