Fanish P., Abdul Manaf, Rabilaj, Hashid, Amjad P.H. v. State of Kerala and The Station House Officer, Panamaram Police Station, Panamaram P.O., Wayanad

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1432 OF 2024 ``` ``` CRIME NO.18/2024 OF PANAMARAM POLICE STATION, WAYANAD ``` ``` AGAINST THE ORDER/JUDGMENT DATED 14.02.2024 IN CRMC NO.108 OF 2024 OF DISTRICT COURT & SESSIONS,KALPETTA PETITIONERS/ACCUSED: ``` - **`1 FANISH. P AGED 24 YEARS S/O. MAJEED, PADAYAN HOUSE, PANAMARAM POST, PANAMARAM VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN - 670721`** - **`2 ABDUL MANAF, AGED 23 YEARS`** - **`S/O. SALEEM, MANNAMKANDY HOUSE, KAPPUMCHAL, CHERUKATTOOR POST & VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN - 670721`** - **`3 RABILAJ, AGED 23 YEARS`** - **`S/O. RIYAS, PADAYAN HOUSE, PANAMARAM POST, PANAMARAM VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN - 670721`** - **`4 HASHID, AGED 23 YEARS S/O. BASHEER, PADAYAN HOUSE, PANAMARAM POST, PANAMARAM VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN - 670721`** ``` BY ADVS. KRISHNA PRASAD. S SINDHU S KAMATH SWAPNA S.K. ROHINI NAIR SURAJ KUMAR D. SUNILKUMAR K.K. A.KARTHIKA SIVAN ``` B.A.Nos.1432 & 1485 of 2024 -:2:- ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER , PANAMARAM POLICE STATION , PANAMARAM P.O , WAYANAD, PIN - 670721`** ## **`OTHER PRESENT:`** ## **`SR PUBLIC PROSECUTOR SMT SEETHA S`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.03.2024 ALONG WITH B.A NO.1485/2024 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.1432 & 1485 of 2024 -:3:- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 5[TH] DAY OF MARCH 2024 / 15TH PHALGUNA, 1945 BAIL APPL. NO. 1485 OF 2024 ``` ``` CRIME NO.18/2024 OF PANAMARAM POLICE STATION, WAYANAD ``` ## **`PETITIONER/ACCUSED:`** ``` AMJAD P.H AGED 23 YEARS S/O. HAMEED, PUTHANPURAYIL HOUSE, PANAMARAM POST, PANAMARAM VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN - 670721 ``` ``` BY ADVS. KRISHNA PRASAD. S SINDHU S KAMATH SWAPNA S.K. ROHINI NAIR SURAJ KUMAR D. SUNILKUMAR K.K. A.KARTHIKA SIVAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2THE STATION HOUSE OFFICER PANAMARAM POLICE STATION , PANAMARAM P.O , WAYANAD, PIN - 670721 ``` ## **`OTHER PRESENT:`** ## **`SR PUBLIC PROSECUTOR SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.03.2024 ALONG WITH B.A.NO.1432/2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.Nos.1432 & 1485 of 2024 ## -:4:- ## **COMMON ORDER** Dated this the 5[th] day of March, 2024 The applications are filed under Section 438 of the Code of Criminal Procedure, 1973, for orders of prearrest bail. As these bail applications arise out of the same crime, they were consolidated and jointly heard and are being disposed of by this common order. 2. B.A No.1432/2024 is filed by the accused 4,3,5 and 6 and B.A. No.1485/2024 is filed by the 7[th] accused in Crime No.18/2024 of the Panamaram Police Station, Wayanad, registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 341, 324, 326, 427, 294(b) r/w. Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 08.01.2024 at around 21.30 hours, the accused in B.A.Nos.1432 & 1485 of 2024 ## -:5:- furtherance of their common intention and out of their previous animosity with the de facto complainant had wrongfully restrained the de facto complainant and pulled him out of his vehicle, and one among them had voluntarily caused grievous hurt on the de facto complainant by hitting him with a stone and he sustained a fracture. The first accused had hit the de facto complainant on his head and face with a helmet. One the accused had also kicked the de facto among complainant on his abdomen and abused him in filthy language. The accused also caused damage to the vehicle of the de facto complainant and caused a loss of Rs.5,000/-. Thus, the accused have committed the above offences. 4. Heard; Sri.Krishna Prasad S, the learned counsel appearing for the petitioners, Smt.Seetha S. and Smt. Neema T.V, the learned Senior Public Prosecutors. B.A.Nos.1432 & 1485 of 2024 -:6:- 5. The learned counsel appearing for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. They have been falsely implicated in the crime. There is no overt act alleged against the petitioners. By order dated 21.2.2024 in B.A. No.878/2024, this Court had dismissed the application filed by the first accused under Section 438 of the Code, on the specific finding that it was the first accused who inflicted injuries on the de facto complainant and he suffered a nasal bone fracture. Therefore, custodial interrogation of the said accused was necessary and recovery was to be effected. In view of the said finding, it is evident that there is no specific overt act alleged against the petitioners. Hence, the petitioners are entitled for an order of pre-arrest bail. 6. The learned Public Prosecutors opposed the applications. They submitted that at the time of B.A.Nos.1432 & 1485 of 2024 -:7:- considering B.A.No.878/2024, this Court found that it was the first accused who caused the nasal bone fracture to the de facto complainant. As the investigation has progressed, it is now revealed that it was the 3[rd] accused who inflicted the injury. Therefore, the petitioners’ custodial interrogation is necessary and recovery is to be effected. Hence, the applications may be dismissed. 7. B.A No.878/2024 was filed by a person named Unaif, who was ranked as the first accused in the above crime. At that point of time, the learned Public Prosecutor categorically submitted that the CCTV footage secured by the Investigating Officer revealed that it was the first accused who hit the de facto complainant with a stone and he suffered a nasal bone fracture. Now, the Investigating officer says that it is not the first accused, but it is the 3[rd] accused who committed the offence. I am unable to accept the contradictory B.A.Nos.1432 & 1485 of 2024 ## -:8:- statements being made before this Court. If that was the case, it is for the Investigating Officer to have filed a statement before this Court and stated who had committed the offence. It is on the basis of the earlier submission made by the Investigating Officer, this Court dismissed the bail application filed by the first accused, on the finding that there was specific overt act alleged against the first accused. The Investigating Officer cannot approbate and reprobate before this Court to now defeat the applications filed by the petitioners that it was the 3[rd] accused and not the first accused who assaulted the injured. Hence, I reject the contention raised by the Investigating Officer. 8. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly the findings rendered by this Court in B.A. No.878/2024, and the discussions B.A.Nos.1432 & 1485 of 2024 ## -:9:- made above, I am of the view that the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, I am inclined to allow the bail applications. In the result, the applications are allowed subject to the following conditions: i) The petitioners are directed to surrender before the Investigating Officer within one week from today. ii) In the event of the petitioners’ arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the petitioners on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The petitioners shall co-operate with the B.A.Nos.1432 & 1485 of 2024 ## -:10:- investigation and make themselves available for interrogation as and when directed by the Investigating Officer ; v). The petitioners shall not intimidate witnesses or interfere with the investigation in any manner; 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 B.A.Nos.1432 & 1485 of 2024 -:11:- 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].** **SD/-** **C.S.DIAS, JUDGE** ``` rmm/5/3/2024 ```