BAIL APPLICATION NO. 652 OF 2023 (FAGATH and others v. STATE OF KERALA)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. Badharudeen
Judgment Date: 2023-03-09
Court Decision / Holding: Granted anticipatory bail to accused Nos. 2, 3, 5, 6 and 7 with conditions: (i) surrender before the Investigating Officer within ten days; (ii) upon surrender, the Investigating Officer may interrogate the petitioners and recover weapons, if any, while they remain in deemed custody; (iii) on arrest, petitioners to be produced before the jurisdictional court and released on bail on bond of Rs. 30,000 with two sureties; (iv) petitioners to co-operate with investigation and be available for interrogation as directed; (v) petitioners not to intimidate witnesses or commit offences during the currency of bail; violation to entail cancellation of bail.
Final Disposition: Anticipatory bail granted with conditions; petitioners to surrender and be released on bail on specified terms.

Parties to the Case

Appellants / Petitioners

FAGATH
KOYAKUTTY M
NISHAR
ABDUL SHAKKEER Y
VIJAYAKUMAR K

Respondents

State of Kerala represented through Circle Inspector of Police, Vadakkancherry Police Station (through Public Prosecutor, High Court of Kerala)

Legal Representation & Advocates

Counsels for Petitioners

• P. G. Suresh
• Aswathy Krishnan

Counsels for Respondents

• P. G. Manu Sr., Public Prosecutor

Case Synopsis & Summary

This is a High Court of Kerala anticipatory bail matter (BAIL APPL. No. 652 of 2023) arising from Crime No. 17/2023 of Vadakkancherry Police Station, Palakkad. The petitioners, accused Nos. 2, 3, 5, 6 and 7, sought anticipatory bail on the grounds of innocence and delayed registration of the case, arguing that the present FIR is a counterblast to Crime No. 982/2022 and that the allegations are weak. The prosecution alleges that on 07.10.2022 an unlawful assembly armed with deadly weapons formed with knowledge of the assembly, with intent to commit culpable homicide not amounting to murder, wrongfully restrained the de facto complainant and assaulted him; the first accused allegedly aimed to chop the complainant’s head with a sword, and others attacked with iron rods and hooks. The FIR in Crime No. 17/2023 was registered belatedly on 05.01.2023. The learned counsel for petitioners contended the charges are baseless and urged grant of anticipatory bail with conditions to cooperate with investigation. The Public Prosecutor opposed bail, highlighting the seriousness of the offences and the necessity of custodial interrogation. After considering the materials, the court granted anticipatory bail with conditions: surrender before IO within ten days, de facto custody for interrogation and weapon recovery, production before court on arrest, bond of Rs. 30,000 with two solvent sureties, and strict compliance with non-interference and non-commission of offences during the bail period.

Provisions of Law Cited

IPC Section 143IPC Section 147IPC Section 148IPC Section 341IPC Section 324IPC Section 308 read with Section 149

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submitted that they are innocent and that the occurrence, dated 07.10.2022, is alleged in a belated FIR (Crime No. 17/2023) registered only on 05.01.2023. They argued that Crime No. 982/2022 involves the same complainant (the 1st accused in this case) and that the present case appears to be a counterblast, with no specific allegations against them. They urged anticipatory bail with conditions, including surrender within ten days, cooperation with investigation, and non-interference with witnesses, asserting no likelihood of flight or misuse of liberty.

Contentions of Respondents

The State, through the Public Prosecutor, opposed bail, arguing the seriousness of the alleged offences, the presence of an unlawful assembly with deadly weapons, assault and attempted homicide, and the necessity for arrest and custodial interrogation to elicit information and secure weapons, if any.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` THURSDAY, THE 9[TH] DAY OF MARCH 2023 / 18TH PHALGUNA, 1944 BAIL APPL. NO. 652 OF 2023 ``` ## **`CRIME NO.17/2023 OF VADAKKANCHERRY POLICE STATION, PALAKKAD`** ## **`PETITIONERS/ACCUSED 2, 3 , 5 TO 7:`** - **`1 FAGATH AGED 35 YEARS`** - **`S/O, HANEEFA, CHUVATTILPURA HOUSE KOTTARASSERY, PUTHUKODE P O, VADAKKANCHERY PALAKKAD DISTRICT., PIN - 678687`** - **`2 KOYAKUTTY M AGED 39 YEARS`** - **`S/O MUHAMMAD, KOTTARASSERY HOUSE, PUTHUCODE VILLAGE, THEKKEPOTTA P O PALAKKAD DISTRICT., PIN - 678687`** - **`3 NISHAR AGED 33 YEARS`** - **`S/O BASHEER, APPAKAD, P.O PUTHOCODE, PUTHOCODE VILLAGE VADAKANCHERY PALAKKAD DISTRICT, PIN - 678687`** - **`4 ABDUL SHAKKEER Y AGED 35 YEARS`** - **`S/O YUSUF, KUDAPANAKUNNU HOUSE, THEKEPOTTA P O, PUTHUCODE VILLAGE, PALAKKAD DISTRICT, PIN - 678687`** - **`5 VIJAYAKUMAR K AGED 43 YEARS`** - **`S/O KUTTINARAYANAN MELEKULAM HOUSE, PATTELA, MANAPADAM P O, PUTHUCODE VILLGE, PALAKKAD DSITRICT, PIN - 678687`** ``` BY ADVS. P.G.SURESH ASWATHY KRISHNAN ``` BA No. 652 of 2023 2 ## **`RESPONDENT/COMPLAINANT:`** - **`1 STATE OF KERALA (REPRESENTED THROUGH THE CIRCLE INSPECTOR OF POLICE, VADAKKANCHERY POLICE STATION) THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** ``` BY ADV. ``` ``` P G MANU SR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 09.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No. 652 of 2023 3 ## **A.BADHARUDEEN, J.** **----------------------------------------------BAIL APPL. No.652 of 2023 ----------------------------------------------Dated this the 9[th] day of March, 2023.** ## **O R D E R** This is an application for anticipatory bail filed by accused Nos.2,3,5,6 and 7 in Crime No.17/2023 of Vadakkancherry Police Station, Palakkad. 2. Heard the learned counsel for the petitioners, the learned Public Prosecutor as well as the learned counsel appearing for the defacto complainant. Perused the FIR in this crime as well as the FIR in Crime No.982/2022 of Vadakkencherry Police Station. 3. Allegation of the prosecution in this crime is that at about 09.10hrs on 07.10.2022, accused Nos.1 to 8 formed themselves into an unlawful assembly, armed with deadly weapons with knowledge that they are members of the said assembly with intention to commit culpable homicide not BA No. 652 of 2023 4 amounting to murder. Thereafter, they wrongfully restrained the defacto complainant and manhandled. The prosecution allegation is that the 1[st] accused attempted to chop on the head of the defacto complainant by using a sword and the defacto complainant evaded. If the 1[st] accused succeeded in his attempt, death would have been the result. Further allegation is that the other accused also attacked the defacto complainant by using iron rod, hook etc. 4. Pursuant to this occurrence on 07.10.2022, crime was registered on 05.01.2023. 5. While pointing out the weakness of the prosecution case, the learned counsel for the petitioners submitted that the petitioners are innocent. According to him, initially in relation to an occurrence at 21.45hrs on 10.10.2022, the accused in Crime No.982/2022 attacked the defacto complainant in said crime and for which Crime No.982/2022 was registered on the next day (11.10.2022), alleging commission of offences punishable under Section 143,147,148,341,324,308 r/w 149 of the IPC. The defacto complainant in Crime No.982/2022 is the 1[st] accused in BA No. 652 of 2023 5 this crime. Subsequently, the present crime was registered at a much belated stage, on 05.01.2023, though the occurrence in this crime as per the allegation in the FIR is on 07.10.2022. The learned counsel would submit that this crime was registered as a counterblast to Crime No.982/2022 and the entire allegations are false. It is submitted further that even otherwise the allegations against the petitioners are much less. Highlighting registration of two crimes and the other aspects in detail, the learned counsel pressed for grant of anticipatory bail to the petitioners with offer to co-operate with the investigation. 6. The learned Public Prosecutor opposed grant of bail, on the submission that the allegations are serious. Therefore, arrest and custodial interrogation are necessary. 7. The defacto complainant also appeared in this crime to oppose the bail on the submission that grant of anticipatory bail is fatal to the interest of the defacto complainant and therefore the same cannot be allowed. 8. On perusal of the prosecution records, the occurrence was on 07.10.2022, but crime was registered after BA No. 652 of 2023 6 three months on 05.01.2023. The FIR in Crime No.982/2022 produced as Annexure A2 would show that crime was registered as submitted by the learned counsel for the petitioners, when the 1[st] accused in this crime who is the defacto complainant in Crime No.982/2022 was attacked. These facts could be noticeable from the FIRs concerned. Thus the contra-allegations would require effective investigation. Since there is no specific allegations as to the assault at the instance of the petitioners herein, they can be enlarged on anticipatory bail with direction to subject themselves for interrogation and recovery of weapons, if any, on the following conditions: i. Accused Nos.2,3,5,6 & 7/petitioners shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioners and recover weapons if any, while they will be on 'deemed custody' of the Investigating Officer, after surrender. In the event of their arrest, the Investigating Officer shall produce the petitioners before the BA No. 652 of 2023 7 jurisdictional court on the date of arrest itself. ii. On such production, the jurisdictional court shall release them on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only), by themselves and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court. iii. Petitioners shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. iv. Petitioners shall not, intimidate the witnesses or interfere with the investigation in any manner. v. Petitioners shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted. **Sd/-** ## **A.BADHARUDEEN, JUDGE.** Mn BA No. 652 of 2023 8 ## **`APPENDIX OF BAIL APPL. 652/2023`** ``` PETITIONER ANNEXURES Annexure A1THE TRUE COPY OF THE FIRST INFORMATION REPORT REGISTERED AS CRIME NO.17/2023 OF VADAKKANCHERY POLICE STATION DATED 05.01.2023 ``` ## **`Annexure A2`** ``` THE TRUE COPY OF THE FIRST INFORMATION REPORT IN THE CRIME NO. 982/2022 REGISTERED BY VADAKKANCHERY POLICE STATION DATED 11.10.2022. ```