Bail Application No. 6490 of 2020 (Sayyid Mohammed Nilamudheen and Sayyid Mohammed Saifudheen v. Officer In Charge, Androth Island Police Station, Lakshadweep)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ASHOK MENON** **MONDAY, THE 12TH DAY OF OCTOBER 2020 / 20TH ASWINA, 1942** ## **Bail Appl..No.6490 OF 2020** Crime No.29 of 2020 of the Androth Police station ## **PETITIONERS/A4 & A5:** **1 SAYYID MOHAMMED NILAMUDHEEN AGED 28 YEARS SON OF KUNHISEEDI, ADVOCATE, MOOTHAKADA HOUSE, ANDROTH ISLAND, LAKSHASWWEEP ISLANDS, PIN 682 551 2 SAYYID MOHAMMED SAIFUDHEEN, AGED 39 YEARS, SON OF C.M ATTAKOYA THANGAL, ADVOCATE, MOOTHAKADA HOUSE, ANDROTH ISLAND, LAKSHASWWEEP ISLANDS, PIN 682 551** **BY ADVS.** **SRI.K.M.FIROZ SMT.M.SHAJNA SRI.E.C.AHAMED FAZIL** **SRI.P.C.MUHAMMED NOUSHIQ** ## **RESPONDENT/S:** **OFFICER IN CHARGE STATION HOUSE OFFICER, ANDROTH ISLAND POLICE STATION, UNION TERRITORY OF LAKSHADWEEP 682 551.** **R1 BY SRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP** **THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 09.10.2020, THE COURT ON 12.10.2020 PASSED THE FOLLOWING:** BA 6490/2020 2 ## O R D E R ## Dated this the 12[th] day of October, 2020 This is an application for anticipatory bail by the applicants who are arraigned as accused Nos. 4 and 5 in Crime No.29 of 2020 of the Androth Police station accusing them and 8 others of having committed offences punishable under Sections 143, 144, 147, 148, 324, 506 and 308 read with Section 149 I.P.C. 2. The prosecution case, in brief, is that on 16.9.2020 at about 1:00 PM the applicants and 10 others had in prosecution of common object formed an unlawful assembly, wrongfully restrained Ashraf Hussein in front of Ballal Mosque and assaulted him with dangerous weapons and attempted to commit culpable homicide. Crime No.23/2020 (Annexure 9) 3 BA 6490/2020 was registered at the Androth Police station for offences punishable under sections 143, 147, 341, 440, 324 and 308 read with Section 149 I.P.C. By about 1:30 PM, the applicants and 8 others lay in wait for the aforesaid Ashraf Hussein at the Government Hospital Androth. When he was brought there by Mohammad Ajeer, Mohammad Noufal and Mohammad Noufar and were waiting outside the duty room for being attended to by the medical staff, the applicants and the other co-accused formed an unlawful assembly and in prosecution of the common object of that assembly committed riot armed with deadly weapons, intimidated Ashraf Hussein and his friends and assaulted them attempting to commit culpable homicide. In consequent to that, the aforesaid Crime No.29/2020 (Annexure-13) was registered. During the investigation of Crime No.23/2020, the investigating officer realised that the applicants were involved only in the incident that took place at the hospital and that the occurrence at the hospital was BA 6490/2020 4 distinct from the occurrence that took place in front of Ballal mosque. That is how; a separate Crime was registered on 28/09/2020. 3. The applicants had approached this Court earlier with an application for anticipatory bail as BA No.5992/2020 in Crime No.23/2020 and on 18/09/2020 this Court had granted an interim order (Annexure 12) preventing the arrest pending hearing of that application for anticipatory bail. On 01/10/2020, the learned Public Prosecutor submitted that the names of the applicants have been deleted from Crime No. 23/2020, and consequently, that application for bail was dismissed. The applicants who are Advocates practising at the Androth Bar apprehend arrest in Crime No. 29/2020 and have, therefore, approached this Court for anticipatory bail stating that the investigation does not require their custodial interrogation. The only intention of the investigating officer in incorporating an offence under Section 308 I.P.C is to see that BA 6490/2020 5 the applicants are incarcerated, humiliated and subjected to custodial torture. The applicants had induced their client Sainul Abid to file a complaint before the District Collector (Annexure 2), Superintendent of Police (Annexure 4), and Home Secretary (Annexure 6) on 09/09/2020 by post as evidenced by postal receipts Annexures-3, 5 and 7, against Ameer Bin Mohammad, SHO Androth Police Station, the investigating officer in these Crimes, for Police harassment. The 2[nd] applicant while he was working as APP on contract basis in the Court of the Judicial Magistrate of First Class, Androth during 2015 had also rebuked him several times, for not carrying out his duties diligently. Annexure-1 certificate issued by the JFCM Androth indicating that the 2[nd] applicant had worked as A.P.P. in his Court during 2015. The investigating officer, is therefore, alleged to be nursing a personal grouse against the applicants. They are both lawyers by profession and lawabiding citizens. There is no possibility of their absconding or BA 6490/2020 6 not cooperating with the investigation. Custodial interrogation of the applicants is not essential and hence they seek anticipatory bail. 4. The learned Senior Central Government Standing Counsel appearing for the Lakshadweep Administration has filed a detailed written objection opposing the granting of anticipatory bail to the applicants. It is stated that the 2[nd] applicant is an accused in Crime No.13 of 2019 of Androth Police station for offences punishable under Sections 143, 144, 188, 186, 353, 342, 225 (b) and Section 436 read with Section 149 of the I.P.C and under Section 3 (2) (a) of the PDPP Act. In the said Crime the 2[nd] applicant had in violation of the orders made by the District Magistrate under Section 144 of the Cr.P.C committed riot before the Court of the Sub Divisional Magistrate and caused distruction to the public properties. That apart, in the process of investigating Crime No. 23/2020 the investigating officer had entrusted his deputy Mohammad BA 6490/2020 7 Yaseen to serve notice on some of the accused on 19/09/2020. The applicants had allegedly intimidated the aforesaid Police officer for having served notice on Mohammad Khaleel Thangal. And in consequence of that, Crime No. 26/2020 was registered at Androth Police station following the statement given by the aforesaid Mohammad Yaseen for offences punishable under Section 506 (ii) I.P.C. When the investigating officer had gone to the Court of the MunsiffMagistrate Androth for official duty on 29/09/2020, the 1[st] applicant had hurled abuses at him and also intimidated him inside the Courtroom. This is a clear violation of Annexure-12 Interim Order of this Court directing the applicants to cooperate with the investigation. Consequently, Crime No. 30/2020 was registered against him for offences punishable under Sections 294 (b) and 506 I.P.C. After dismissal of bail application No. 5992/2020 on 1.10.2020 by this Hon'ble Court the applicants herein along with two other accused persons are BA 6490/2020 8 hiding in a place of worship of their religious sect "Shamsiya Thareeqath" (Mosque and Makharn of Chemmattimnrada Attakoya Thangal at Androth Island). Many followers of their sect are also remaining with them. Their intention is to resist the arrest of the applicants and to create serious communal tension and law and order situation if the police arrest the applicants from the place of worship. It is further submitted that the applicants are not entitled for pre arrest bail; they have been continuously engaged in confrontation with the law and order machinery in the island. Androth is an island with a population of more than 10,000 people. Compared to other islands, political violence and religious fanaticism are on growth in the island and therefore proper actions in accordance with law are necessary to maintain the law and order situation. The applicants have been indulging in criminal activities and are at present trying to obstruct the investigations in Crime Nos 23/2020 as well as 29/2020. Their BA 6490/2020 9 custodial interrogation is essential as they will not otherwise co-operate with the investigation and continue to interfere with the same. Hence it is prayed that the application for prearrest bail may be dismissed. 5. Heard Adv Sri Firoz K.M, the learned counsel appearing for the applicants, and Adv Sri S.Manu, the Senior Central Government Standing Counsel appearing for the Lakshadweep Administration. Records perused. 6. In view of the decisions of the Hon’ble Supreme Court in Naranjan Singh v. Prabhakar Rajaram Kharote [1980 KHC 664 : AIR 1980 SC 785] and Puran v. Rambilas [2001 KHC 640: 2001 (6) SCC 338] it is now settled law that at the time of consideration of bail applications, the Courts are not expected to discuss the merits or demerits of the evidence collected against the accused. A detailed examination of the evidence or an elaborate documentation of the merits of the BA 6490/2020 10 case has also to be avoided. I would, therefore not embark upon a detailed discussion on the merits by a prolix Order. 7. The specific allegation against the applicants in this Crime is that they along with the other accused were lying in wait at the hospital for the de facto complainant Ashraf to arrive. When he came there accompanied by Mohammad Ajeer and two others, the applicants and 8 others allegedly attacked him with intention to cause death and grievous hurt to him. In Annexure-13 F.I.R in Crime No.29/2020 there is no mention about any of the accused using any dangerous weapon. There is no allegation made regarding the applicants using any dangerous weapon to cause hurt to the injured. Wound certificates pertaining to Ashraf and Ajeer are Annexures-10 and 11. The certificates do not mention anything about the injured being attacked with any weapon. According to Annexure-10, Ashraf had sustained an aberration over the shoulder, contusion over chest and back of left shoulder wrists BA 6490/2020 11 and hands and multiple injuries on the scalp (three). Annexure-11 indicates the injuries sustained by Mohammad Ajeer as aberrations around right ear and contusion is over left shoulder. The injuries sustained by both Ashraf and Ajeer are described as simple by the Doctor. It is pertinent to note that the Ashraf was assaulted by 12 persons in front of Ballal mosque half an hour prior to the incident that occurred. It is not clear whether Ashraf has sustained the injuries due to the assault at 1 PM in front of Ballal mosque or due to the assault in the hospital at 1:30 PM. Annexure-9 is the F.I.R in Crime No. 23/2020 in the FI statement given in that Crime by Ashraf, he narrates in detail the assault he had sustained in front of the Ballal mosque as well as the assault sustained in the hospital. Towards the end of his statement, he has mentioned that the 2[nd] applicant had hit him on his head with a hard object. He does not give the description of that object or weapon. The prosecution has described it as a mop stick. BA 6490/2020 12 8. To attract an offence under Section 308 I.P.C it must be established by the prosecution that the Act was done with the intention of knowledge and under such circumstances that, if by that Act caused the death, he would be guilty of culpable homicide not amounting to murder. Going by the injury sustained by the de facto complainant and his brother Ajeer, it does not indicate that the assault could have caused the death of either of them. 9. It is pointed out by the learned Central Government Standing Counsel that the applicants are habitual offenders and that they are supporters of a fanatic faction of a sect having scant respect for law and order. The learned counsel has pointed out towards certain antecedents against the applicants; Crime No. 26/2020 is against the 2[nd] applicant for an offence punishable under Section 506 (ii) I.P.C. The offence is not grave, and is bailable. Even though the de facto complainant is a Police officer, no offence under Section 353 BA 6490/2020 13 I.P.C is alleged in that F.I.R. The objection filed by the prosecution refers to another Crime No.13/2019 against the 2[nd] applicant. The allegation therein is that he had violated the orders of the District Magistrate under Section 144 Cr.P.C and committed offences under Sections 143, 144, 188, 186, 353, 342, 225 (b) and Section 436 read with Section 149 of the I.P.C and under Section 3 (2) (a) of the PDPP Act. He is on bail in that case and has not yet been convicted. The only antecedent against the 1[st] applicant is Crime No. 30/2020 which was registered against him for offences punishable under Sections 294 (b) and 506 I.P.C, subsequent to the registration of the instant Crime. The offences alleged there are bailable. Even though there is an allegation by the prosecution that the applicants belong to a fanatic religious sect, there is no material placed before this Court to indicate that they are involved in any anti national or sectarian violence. On the other hand, the applicants would suggest that the investigating BA 6490/2020 14 officer in this case has an axe to grind against them and is therefore bent upon implicating them in Crimes and incarcerate them. 10. In Siddharam Saltingappa Mhetre v. State of Maharashtra, [2010 KHC 4952: AIR 2011 SC 312 ], the Hon’ble Apex Court had held that irrational and indiscriminate arrests are violative of human rights and laid down the factors that are to be taken into consideration while deciding anticipatory bail applications. The Court held thus: “ 122. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. BA 6490/2020 15 v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The Courts must evaluate the entire available material against the accused very carefully. The Court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of S.34 and S.149 of the Indian Penal Code, the Court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; ix. The Court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. BA 6490/2020 16 123. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case.” 11. Considering the facts and circumstances of this case, I find that there is no reason to deny anticipatory bail to the applicants on applying the factors and parameters mentioned by the Hon’ble Supreme Court as stated above. The antecedents of the applicants pointed out by the prosecution are not to such an extent as would be sufficient to deny bail to them. The applicants have not been convicted yet in any criminal case. There is no possibility of their fleeing from justice. Hence the application for anticipatory bail is allowed. The applicants are directed to surrender before the investigating officer within two weeks. In the event of there being arrested after interrogation and recovery if any, they shall be released on bail on the execution of a bond for ₹50,000/- (Rupees fifty thousand only) each with two solvent 17 BA 6490/2020 sureties for like amount each to the satisfaction of the investigating officer, and on following further conditions:- 1. They shall appear before the investigating officer and cooperate with the investigation as and when called for. 2. They shall not get involved in any similar offences during the currency of the bail. 3. They shall not tamper with evidence, intimidate or influence witnesses. In the event of their violating any of the above conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the Jurisdictional Court. ## **Sd/-** ## **ASHOK MENON** ## **JUDGE** jg