Fasaludheen K. and Shakir K.I. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 7[TH] DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945** **BAIL APPL. NO. 841 OF 2024** **CRIME NO.35/2024 OF BEKAL POLICE STATION, KASARGOD** ## **PETITIONERS/ACCUSED NO.1 & 2:** **1 FASALUDHEEN K AGED 32 YEARS S/O FAREEDS, KANATHIL HOUSE, KUNIYA, PERIYA VILLAGE,HOSDURGE, KASARGODE DT., PIN - 671315 2 SHAKIR K.I AGED 34 YEARS S/O IBRAHIM, KUNIYA HOUSE, KUNIYA BADAR MASJID, PERIYA VILLAGE, HOSDURG, KASARGODE DT., PIN - 671315** **BY ADVS. M.MUHAMMED SHAFI T.RASINI ADHEELA NOWRIN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** **OTHER PRESENT:** **PP SMT SHYNI V O** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.02.2024, THE** **COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO.841 OF 2024** **2** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure by the accused 1 & 2 in Crime No.35/2024 of the Bekal Police Station, Kasargod, registered against the accused (5 in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 341, 323, 324, 308 and 326 r/w. 149 of the Indian Penal Code. The petitioners were 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.841 OF 2024** **3** appearing for the petitioners and Smt. Shyni V.O., the learned Public Prosecutor appearing for the respondent. 4. 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. Sections 326 and 308 have been deliberated incorporated by the Investigating Officer to deny bail to the petitioners. The petitioners have been in judicial custody since 16.01.2024. The investigation in this case is practically complete and recovery has been effected. The petitioners' further detention is not necessary. This Court has granted an order of pre-arrest bail to the accused 3 to 5 as per the order in B.A.No.446/2024. Petitioners are similarly placed to the accused 3 to 5. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She contended that it was the first accused who inflicted the injury on the defacto complainant. The defacto complainant has sustained a fracture on his hand. **BAIL APPL. NO.841 OF 2024** **4** She made available the accident register cum wound certificate dated 14.01.2024 of the Co-operative Hospital, Kasargod to demonstrate the injury suffered by the defacto complainant. She further submitted that this Court had granted the accused 3 to 5 an order of pre-arrest bail since there was no overt act alleged against them. Nonetheless she conceded to the fact that the second accused had only facilitated the first petitioner/first accused to hit the defacto complainant with an iron rod. 6. The prosecution allegation is that it was the first petitioner/first accused who hit the defacto complainant with an iron rod on his hand and caused a grievous injury. The accident register cum wound certificate clearly reveals that the defacto complainant has sustained a fracture on his hand. The investigation in the case is still in progress. 7. 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 **BAIL APPL. NO.841 OF 2024** **5** 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.” ## 8. 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 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 **BAIL APPL. NO.841 OF 2024** **6** 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)” 9. After bestowing my anxious consideration to the facts, the materials placed on record, the nature, seriousness and gravity of the offence levelled against the first petitioner, especially the injury reflected in the accident register – cum – wound certificate, I am of the definite view that the first petitioner/first accused is not entitled to be released on bail. Nonetheless, taking into account the fact the the second petitioner/second accused had not caused any injury to the defacto complainant, I am inclined to allow his application. In the result: 1). The bail application filed by the first petitioner is dismissed. - 2). The bail application filed by the second petitioner is allowed, subject to stringent conditions. **BAIL APPL. NO.841 OF 2024** **7** Accordingly, the application of the second petitioner is allowed, by directing the second 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 be subject to the following conditions: - (i) The 2[nd] petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m for a period of two months or till the final report is filed, whichever is earlier. He shall also appear before the Investigating Officer as and when required; - (ii) The 2[nd] 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii) The 2[nd] petitioner shall not commit any offence while he is on bail; - (iv) The 2[nd] 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 **BAIL APPL. NO.841 OF 2024** **8** affidavit to the effect before the court below on the date of 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 filed and entertained before 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** **shg**