Bail Application No. 6211/2019 (BA No.6211/2019)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 25TH DAY OF SEPTEMBER 2019 / 3RD ASWINA, 1941 Bail Appl..No.6211 OF 2019 CRIME NO.109/2019 OF VENGARA POLICE STATION, VENGARA, MALAPPURAM ## PETITIONERS/ACCUED NOS.2 TO 6: - 1 SAFUVAN SABARI, AGED 29 YEARS, S/O. HAMZA, VALIYAPARAMBIL HOUSE, KARATHODE, PANAKKAD VILLAGE, ERNAD TALUK, MALAPPURAM DISTRICT-676 122 - 2 ABDUL RAZAQUE, AGED 28 YEARS, S/O. KUNHI MOIDEEN, PANDARAPETTY HOUSE, KARATHODE, PANAKKAD VILLAGE, ERNAD TALUK, MALAPPURAM DT. 676 122. - 3 FAJID N.K, AGED 34 YEARS, S/O. ASSAIN, NHARAKKADAN HOUSE, KARATHODE, PANAKKAD VILLAGE, ERNAD TALUK, MALAPPURAM DT. 676 122. - 4 JAMSHEEL, AGED 33 YEARS, S/O. MAMMADU M.K., M.K. HOUSE, KARATHODE, PANAKKAD VILLAGE, ERNAD TALUK, MALAPPURAM DT. 676 122. - 5 SAMEER ALI, AGED 34 YEARS, S/O. MOHAMMED HAJI, CHAKKINGALTHODI HOUSE, OORAKAM MELMURI, TIRURANGADI TALUK, MALAPPURAM DT. 676 306. BY ADVS. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.K.M.FAISAL (KALAMASSERY) SRI.P.U.VINOD KUMAR SMT.STIYA SIVAN SRI.AVINASH P RAVEENDRAN SMT.ARYA RAGHUNATH SMT.ANJALY N.S. ## RESPONDENTS: 1 STATE OF KERALA, REPRESENTED BY THE STATION HOUSE OFFICER , VENGARA POLICE STATION, VENGARA, MALAPPURAM, (THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN-682 032) ADDL.R2 VINEESH, S/O GOVINDAN, AGED 34 YEARS, PALLIYAMBIL HOUSE, CHERATTUPARAMBU, KARATHODE, MALAPPURAM DISTRICT. B.A.NO.6211/2019 2 IS IMPLEADED AS ADDITIONAL R2 AS PER THE ORDER DATED 29.8.2019 IN CRL.MA NO.1/2019 IN BA NO.6211/2019. R2 BY ADV. SRI.BABU S. NAIR ## OTHER PRESENT: ## SRI. RAMESH CHAND PUBLIC PROSECUTOR THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.09.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: B.A.NO.6211/2019 3 ## **ORDER** This application is filed under § 438 of the Cr.P.C. 2. The applicants herein are the accused Nos.2 to 6 in Crime No.109 of 2019 of the Vengara Police Station registered under §§ 143, 147, 148, 341, 323, 324, 326, 506 r/w. § 149 of the IPC. 3. According to the prosecution, on 25.05.2019 at 9 pm, the applicants along with 1[st] accused formed themselves into an unlawful assembly with the requisite knowledge and in prosecution of their common object, wrongfully restrained the de facto complainant and thereafter, the accused Nos.1 to 3 are alleged to have slapped him on his face and the accused Nos.4 and 6 are alleged to have kicked him. The 5[th] applicant, who was allegedly armed with an iron rod, attacked him causing a fracture to the carpal of his left little finger. 4. Sri.Babu Karukapadath, the learned counsel appearing for the applicants, submitted that the applicants have been roped in at the instance of a certain Abu Thahir, the employer of the de facto complainant, whose name is made mention of in the FI Statement itself. He would refer to Annexures-A1 B.A.NO.6211/2019 4 and A2 and it is urged that the 3[rd] applicant was falsely implicated in Crime No.150 of 2018 of the Vengara Police Station registered under various provisions of the Narcotic Drugs and Psychotropic Substances Act. In the course of investigation, it was found that the employer of the de facto complainant along with his two employees had planted Ganja in the autorickshaw of the 3[rd] applicant and a report was submitted before the learned Special Judge removing him from the array of the accused. Thereafter, on numerous occasions, the 3[rd] applicant was asked to withdraw the allegation and when he refused, he was threatened with dire consequences. He would refer to Annexures-A3 to A8 and it is pointed out that numerous complaints were submitted before the Deputy Superintendent of Police, Malappuram. He would also refer to Annexures-A9 to A11 FIRs registered against the employees of Abu Thahir to substantiate his contention. According to the learned counsel, the only injury suffered by the victim is a fracture to the little finger and referring to the accident register-cum-wound certificate, it is submitted that it was cooked up from a private hospital. According to the learned counsel, the registration of the aforesaid crime is one in a series of frivolous accusations levelled against the applicants. He would also highlight the fact that though the incident had taken place on 25.05.2019, the Crime was registered only on 29.05.2019. B.A.NO.6211/2019 5 5. The learned Public Prosecutor, on instructions, has opposed the prayer. It is submitted that the applicants herein are persons with criminal antecedents and against some of them, proceedings under Section 107 of the Cr.P.C have also been initiated. It is further submitted that the records reveal that a fracture was sustained on the little finger of the victim, which makes the allegations much more graver. 6. The de facto complainant has entered appearance through counsel. Sri.Babu S. Nair, the learned counsel appearing for the de facto complainant, supported the submissions of the learned Public prosecutor. According to the learned counsel, the delay in registering the crime occurred as the police refused to record an FIR though they were intimated from the hospital. He would further argue that on an earlier instance, a witness was won over by the applicants and he was made to file an affidavit before this Court that the complaint lodged by him has no basis. According to the learned counsel, allegations are extremely grave and if pre-arrest bail is granted to the applicants, it would affect the investigation. 7. I have considered the submissions advanced and have perused the materials on record. B.A.NO.6211/2019 6 8. In the case on hand, in respect of an incident which took place on 25.05.2019, the Crime was registered only on 29.05.2019. The wound certificate reveals that the de facto complainant was admitted in a private hospital at Malappuram on 25.05.2019 and he was discharged on 27.05.2019. If that be the case, there is no reason why he had to wait for a further period of two days in approaching the police. Furthermore, the wound certificate does not inspire any confidence. There are alterations and interlineations, which make it suspect. Insofar as the Crimes, which are pending against the applicants are concerned, the de facto complainant in all those cases are the known rivals. The sequence of events shows that the 3[rd] applicant was implicated in a case for possessing Ganja and after meticulous investigation, it was revealed that the contraband was planted. 9. Having considered the entire facts, I am of the view that relief of pre-arrest bail can be granted as the custodial interrogation of the applicants is not necessitous for an effective investigation. However, if the Investigating Officer feels that the custody of the 3[rd] applicant is required for the purpose of investigation, the Investigating Officer will be at liberty to file appropriate application before the learned Magistrate. If such an application is filed, the 3[rd] applicant shall appear before the learned Magistrate and his presence before B.A.NO.6211/2019 7 the learned Magistrate shall be treated as judicial custody for the purpose of entertaining the application for police custody, as held in **Gurbaksh Singh Sibbia and another v. State of Punjab[1]** . In the result, this application will stand allowed. The applicants shall appear before the Investigating Officer within ten days from today and shall undergo interrogation. Thereafter, if they are proposed to be arrested, they shall be released on bail on their executing a bond for Rs.50,000/- (Rupees Fifty thousand only) each with two solvent sureties each for the like sum. However, the above order shall be subject to the following conditions: (i) The applicants shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 11 a.m., for one month or till final report is filed, whichever is earlier. ii) In the event of the police making out a case of a likely recovery under Section 27 of the Evidence Act, the persons released on bail shall be liable to be taken in police custody for facilitating the discovery as held in paragraph No.19 of the judgment by a Constitution Bench of the Apex Court reported as **Gurbaksh Singh Sibbia** (supra)]. iii) They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the court or to any police officer. iv) They shall not commit any similar offence while on bail. 1 [1980 (2) SCC 565] B.A.NO.6211/2019 8 In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any, and pass appropriate orders in accordance with the law. **SD/-** krj **RAJA VIJAYARAGHAVAN V., Judge** //TRUE COPY// P.A. TO JUDGE