Fasaludeen K v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945** **BAIL APPL. NO. 1163 OF 2024** **CRIME NO.35/2024 OF Bekal Police Station, Kasargod AGAINST THE ORDER/JUDGMENT Bail Appl. 841/2024 OF HIGH COURT OF** ## **KERALA** ## **PETITIONER/S:** FASALUDHEEN K AGED 32 YEARS S/O FAREEDS, KANATHIL HOUSE, KUNIYA, PERIYA VILLAGE, HOSDURGE, KASARGODE DT., PIN - 671315 BY ADVS. M.MUHAMMED SHAFI T.RASINI ADHEELA NOWRIN ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 1163 OF 2024 2 ## **O R D E R** This second application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the 1[st] accused in Crime No.35/2024 of the Bekal Police Station, Kasargod, registered against the accused (five in number), for allegedly committing the offences punishable under Secs.143, 147,148, 341,323, 324 and 308 read with Sec.149 of the Indian Penal Code. The petitioner was arrested on 16.01.2024. 2. The gist of the prosecution case is that: around 22.30 hours on 13.01.2024 the accused in prosecution of their common intention formed an unlawful assembly to cause injury to the defacto complainant. Then, the first accused hit the defacto complainant with an iron rod and others pelted stones at them. Since the defacto complainant warded off the attack, his life was saved. Thus, the accused have committed the above offences. 3. Heard; Sri.Muhammed Shafi M., learned counsel BAIL APPL. NO. 1163 OF 2024 3 appearing for the petitioners and Smt. Seetha S., the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled agaisnt him. The petitioner has been falsely implicated in the crime. The petitioner has been in judicial custody since 16.01.2024. The petiitoner's earlier application was dismissed by this Court by Annexure A6 order principally on the ground that the investigation in the case was in progress and recovery had to be effected. Presently, the investigation has been completed and recovery has been effected. The petitioner's further detention is not necessary. Hence, the application may be allowed. 5. The learned Public Prosecutor opposed the application. She contended that it was the petitioner who inflicted injury on the defacto complainant. Nonetheless, she conceded to the fact that the petitioner has been in judicial custody for the last one month, that the BAIL APPL. NO. 1163 OF 2024 4 investigation in the case is at its fag end and recovery has been effected. ## 6. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** **and Another** [(2010) 14 SCC 496], in paragraph 9, the Honourable Supreme Court has observed as follows: “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation: (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” ## 7. Again, the Honourable Supreme Court in **Kalyan** ## **Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav** ## **and another** [AIR 2004 SC 1866] has held thus: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the BAIL APPL. NO. 1163 OF 2024 5 Court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. See Ram Govind Upadhyay v. Sudarshan Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)” 8. After bestowing my anxious consideration to the facts, the materials placed on record, the rival submissions made across the Bar, particularly taking note of the fact that the petitioner has been in judicial custody since 16.01.2024, the investigation in the case is practically complete and recovery has been effected, I am of the definite view that the petitioner’s further detention is unnecessary. Hence, I am inclined to allow the bail application. In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.50,000/- (Rupees Fifty Thousand only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall BAIL APPL. NO. 1163 OF 2024 6 be subject to the following conditions: (i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of one month or till the final report is laid, whichever is earlier. He shall also appear before the Investigating Officer as and when required; (ii) The petitioner 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 him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioner shall not commit any offence while he is on bail; (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of BAIL APPL. NO. 1163 OF 2024 7 execution of the bond; (v) 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. (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (vii) 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 petitioner even while the petitioner is 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** rkc/16.02.24 BAIL APPL. NO. 1163 OF 2024 8 ## **APPENDIX OF BAIL APPL. 1163/2024** PETITIONER ANNEXURES |Annexure A1|TRUE COPY OF THE FIR IN CRIME|TRUE COPY OF THE FIR IN CRIME|NO.| |---|---|---|---| ||35/2024 OF BAKEL POLICE STATION,||| ||KASARGODE||| |Annexure A2|TRUE COPY OF THE FIR IN CRIME||NO.| ||40/2024 OF BAKEL POLICE STATION,||| ||KASARGODE||| |Annexure A3|TRUE COPY OF THE|ORDER DATED 20-01-2024|| ||IN CMP NO. 105|/2024 OF HON'BLE|JFCM| ||COURT-II, HOSDURG||| |Annexure A4|TRUE COPY OF THE|ORDER DATED 29-01-2024|| ||IN CMP NO. 200|/2024 OF HON'BLE|JFCM| ||COURT-II, HOSDURG||| |Annexure A5|TRUE COPY OF THE|ORDER DATED 30-01-2024|| ||IN B.A NO. 446/2024 OF THE HON'BLE||HIGH| ||COURT OF KERALA||| |Annexure A6|ORDER <br>DATED|07-02-2024 <br>IN|BAIL| ||APPL.841/2024 ON HIGH COURT|||