High Court of KeralaSingle Judge2024-06-04Application allowed; bail granted subject to sp...

Bail Application No. 3756 of 2024 v State of Kerala

Case / Petition Number:BAIL APPL. NO. 3756 OF 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-06-04
Court Decision / Holding: The petition is allowed; pre-arrest bail is granted to the petitioners under Sec. 438 CrPC subject to the following conditions: (i) surrender before the Investigating Officer within 10 days; (ii) bond for Rs. 50,000 with two solvent sureties for the like amount; (iii) appearance as directed by the IO; (iv) no inducement or tampering with witnesses or evidence; (v) surrender of passports within one week; (vi) not to commit any other offence while on bail; (vii) cancellation of bail on violation of conditions; (viii) applications for modification of conditions to be filed before the court below; (ix) IO may continue investigation and recoveries if necessary; observations are for the bail petition only and do not express on merits; references to Sushila Aggarwal are for procedural guidance.
Final Disposition: Application allowed; bail granted subject to specified conditions and safeguards.

Parties to the Case

Appellants / Petitioners

BIJU
SALMAN
SHAFEEQUE

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, PIN - 682031

Legal Representation & Advocates

Counsels for Petitioners

• Anil K. Muhamed
• Krishnakumar G.
• Ajin Salam

Counsels for Respondents

• Smt Neema T V, Public Prosecutor

Case Synopsis & Summary

On 4 June 2024, in the High Court of Kerala at Ernakulam, Justice C.S. Dias heard Bail Application No. 3756 of 2024 in respect of accused 2 to 4 in Crime No. 308/2024 of Kalpakanchery Police Station, Malappuram. The petition sought pre-arrest bail under Section 438 CrPC, challenging potential arrest in connection with offences punishable under Sections 341, 323 and 326 read with Section 34 IPC. The prosecution alleges that, on 10 March 2024 around 9 p.m., the accused formed an assembly and the 1st accused assaulted the de facto complainant with an iron rod, resulting in injuries; petitioners are said to have assisted the 1st accused and thereby attracted the joint liability under Section 34 IPC. The petitioners claimed innocence, asserted false implication, and pointed to a counter-FIR against the complainant for similar offences; they argued custodial interrogation was unnecessary and that there were exceptional grounds for grant of bail. The Public Prosecutor opposed bail but conceded that the specific overt act is attributed to the 1st accused. After hearing, the Judge found that the overt act relevant to Section 326 lay with the 1st accused and that custodial interrogation of petitioners was not necessary. Accordingly, the court allowed the bail application, subject to enumerated conditions, while cautioning that observations are not an expression on merits.

Provisions of Law Cited

Section 438 CrPCSections 341, 323 and 326 read with Section 34 IPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend they are innocent and falsely implicated; there is a counter case against the defacto complainant for similar offences; Annexure A1 shows the overt act of beating was against the 1st accused only; custodial interrogation is not necessary; there are exceptional grounds to invoke Sec.438 CrPC; though investigation is ongoing, bail should not hinder it; the petitioners assisted but did not carry out the principal act; the court should exercise caution and rely on constitutional safeguards to protect liberty while ensuring investigation proceeds.

Contentions of Respondents

The State opposed pre-arrest bail on grounds that arrest at this stage should not be avoided to preserve the integrity of the ongoing investigation; however, it acknowledged the overt act is attributed to the 1st accused and that petitioners’ custodial interrogation may not be necessary if safeguards are in place; balance personal liberty with the investigation’s needs; rely on the extraordinary jurisdiction under Sec. 438 CrPC and applicable precedents to impose appropriate conditions.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) And another	2020 (1) KHC 663	Positive	Cited to support the proposition that bail under Sec. 438 can be granted with safeguards to facilitate ongoing investigation, aligning with the Supreme Court guidance.

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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 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946** **BAIL APPL. NO. 3756 OF 2024** **CRIME NO.308/2024 OF Kalpakanchery Police Station, Malappuram** **AGAINST THE ORDER/JUDGMENT DATED 04.04.2024 IN CRMC NO.410 OF 2024 OF DISTRICT COURT& SESSIONS COURT,MANJERI PETITIONER/S:** - **1 BIJU,AGED 33 YEARS S/O VASU , OZHUKKAL PARAMBIL (H), KATTIPARUTHI, MALAPPURAM (DIST), PIN - 676552** - **2 SALMAN,AGED 32 YEARS S/O MOHAMMED, PETTAMMAL (H), ATHAVANAD, MALAPPURAM (DIST.), PIN - 676301** - **3 SHAFEEQUE,AGED 38 YEARS S/O BASHEER,NILAPARAMBIL (H), ATHAVANAD, MALAPPURAM (DIST.), PIN - 676301** **BY ADVS. ANIL K.MUHAMED KRISHNAKUMAR G. AJIN SALAM** ## **RESPONDENT/S:** **STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3756 OF 2024 2 ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 2 to 4 in Crime No.308/2024 of the Kalpakanchery Police Station, Malappuram, registered against the accused, for allegedly committing the offences punishable under Sections 341, 323 and 326 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). 3. The gist of the prosecution case is that: on 10.03.2024, at around 21 hours, the accused, in furtherance of their common intention, formed themselves into an assembly and the 1[st] accused attacked the defacto complainant along with his friends. He hit the defacto complainant with an iron rod and caused serious injuries to him. Thus, the accused have committed the above offences. 4. Heard; Sri.Anil K.Muhamed, the learned BAIL APPL. NO. 3756 OF 2024 3 counsel appearing for the petitioners and Smt.Neema T.V., the learned 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. In fact there is a counter case registered against the defacto complainant as per Annexure A2 FIR for committing similar offence against the petitioners and their friends. A reading of Annexure A1 FIR would show that the specific overt act is only alleged against the 1[st] accused, who hit the defacto complainant with an iron rod. In fact the 1[st] accused was arrested and he has been released on bail. 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 the investigation is in progress. She also stated that if the petitioners are granted orders of pre-arrest bail, it may hamper the BAIL APPL. NO. 3756 OF 2024 4 investigation. Nonetheless, she did not dispute the fact that in Annexure A1 FIR and the FI statement the specific allegation is only against the 1[st] accused, who hit the defacto complainant with an iron rod. 7. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering the fact that the specific overt act, so as to attract the offence under Section 326 of the IPC, is attributed against the 1[st] accused, and the overt act alleged against the petitioners is that they assisted the 1[st] accused to commit the offence, I am of the view that the petitioners' custodial interrogation is not necessary. Hence, I hold that the petitioners have made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. Hence, I am inclined to allow the application. In the result, the application is allowed subject to the following conditions: (i) The petitioners are directed to surrender before BAIL APPL. NO. 3756 OF 2024 5 the Investigating Officer within 10 days from today. - (ii) In the event of the petitioners' arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioners 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passport, they shall file BAIL APPL. NO. 3756 OF 2024 6 affidavits to the effect before said court within the said period; - (vi) The petitioners 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 petitioners even while the petitioners 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]. BAIL APPL. NO. 3756 OF 2024 7 (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/04.06.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 3756 OF 2024 8 ## **APPENDIX OF BAIL APPL. 3756/2024** ## **PETITIONER ANNEXURES** ## **Annexure 1** **A CERTIFIED COPY OF FIR AND FIS IN CRIME NO. 308 OF 2024 OF KALPAKANCHERY POLICE STATION** **Annexure 2 A CERTIFIED COPY OF FIR AND FIS IN CRIME NO. 309 OF 2024 OF KALPAKANCHERY POLICE STATION** **Annexure 3 A TRUE PHOTOCOPY OF ORDER IN CRL. M.C. NO. 410 OF 2024**