Hakeem; Abdul Salam.C.C; Shamsudeen; Younas v. The Circle Inspector of Police, Vengara Police Station, Malappuram & State of Kerala

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 5[TH] DAY OF JANUARY 2024 / 15TH POUSHA, 1945 ``` ``` BAIL APPL. NO. 10699 OF 2023 ``` ``` CRIME NO.885/2023 OF VENGARA POLICE STATION, MALAPPURAM ``` ## `PETITIONERS/ACCUSED 1 TO 4:` ``` 1HAKEEM, AGED 44 YEARS S/O. BEERAN, CHERANCHERI CHANATH HOUSE, CHEVIDANKANDI, PERUVALLUR, A.R. NAGAR, MALAPPURAM DISTRICT, PIN - 676305 2ABDUL SALAM.C.C, AGED 33 YEARS S/O. BEERAN HAJI, CHERANCHERI CHANATH HOUSE, CHEVIDANKANDI, PERUVALLUR, A R NAGAR, MALAPPURAM, PIN - 676305 3SHAMSUDEEN, AGED 36 YEARS S/O. RAYINKUTTY HAJI, KEEGERI HOUSE, A R NAGAR, KANNAMANGALAM P.O., MALAPPURAM, PIN - 676304 4YOUNAS, AGED 34 YEARS S/O. RAYINKUTTY, PALAMADATHIL ERANJIPURATH, KUNNUMPURAM, KANNAMANGALAM, MALAPPURAM, PIN - 676304 BY ADV T.G.RAJENDRAN ``` ## `RESPONDENTS/COMPLAINANT:` ``` 1THE CIRCLE INSPECTOR OF POLICE, VENGARA POLICE STATION, MALAPPURAM, PIN - 673304 2STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` 2 B.A. No.10699 of 2023 ``` BY ADVS. PUBLIC PROSECUTOR ADDL.DIRECTOR GENERAL OF PROSECUTION ADDL. STATE PUBLIC PROSECUTOR BY ADGP SRI GRASHIOUS KURIAKOSE ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A. No.10699 of 2023 3 ## **C.S.DIAS,J** ## **======================** **B.A. No.10699 of 2023 ======================= Dated this the 5[th] day of January, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973 (for short ‘the Code’), by accused Nos.1 to 4 in Crime No.885/2023 of the Vengara Police Station, Malappuram, registered against six accused, alleging the commission of the offences under Sections 143, 147, 148, 341, 323, 324 and 302 r/w 149 of the Indian Penal Code. The petitioners were arrested on 26.10.2023. 2. The prosecution case, in brief, is that: the accused had with a common intention and out of previous animosity, on 26.10.2023 at about 12.30 p.m, had formed themselves into an unlawful assembly, armed with deadly weapons, and beat up the defacto B.A. No.10699 of 2023 4 complainant and the deceased named Lirar, who succumbed to injuries. Thus, the accused have committed the above offences. 3. Heard; Sri.Rajendran T.G, the learned counsel appearing for the petitioners and Sri.Grashious Kuriakose, the learned Additional Director General of Prosecution. 4. The learned counsel appearing for the petitioners argued that the deceased was suffering from cardiac disease and he lost his life due to his ailment and not to the injuries inflicted on him by the accused, as alleged by the prosecution. Even going by the FIR, the alleged injuries that were inflicted on the deceased are only abrasions and cut injuries, which can never cause the death of a person. The petitioners are totally innocent of the accusation levelled against them. The petitioners have been in judicial custody since 26.10.2023. The petitioners are willing to cooperate with the Investigating Officer and abide by any stringent B.A. No.10699 of 2023 5 condition that may be imposed by this Court. Hence, this application may be allowed. 5. The learned Additional Director General of Prosecution vehemently opposed the application. He made available a postmortem report to demonstrate the antemortem injuries sustained by the deceased. He also submitted that the investigation is still in progress. If the petitioners are let out on bail at this stage, it would adversely affect the proper investigation of the case. Hence, the application may be dismissed. 6. The prosecution case is that the accused formed an unlawful assembly, armed with deadly weapons, and murdered the person named Lirar. On evaluating the postmortem report it can be gathered that there were eight antemortem injuries on the body of the deceased. Thus, the contention that the deceased died due to cardiac arrest is prima facie untenable. 7. In **Prasanta Kumar Sarkar v. Ashis** **Chatterjee and Another** [(2010) 14 SCC 496], the B.A. No.10699 of 2023 6 ## Hon’ble Supreme Court in paragraph 9, 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) likeliood 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. In **Kalyan Chandra Sarkar v. Rajesh Ranjan** ## **alias Pappu Yadav and another** [AIR 2004 SC 1866] also the Hon’ble Supreme Court has observed thus: “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should B.A. No.10699 of 2023 7 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 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 B.A. No.10699 of 2023 8 Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)” 9. Recently in **P. Chidambaram v. Directorate of Enforcement** [2019 SCC Online SC 1549], the Hon’ble Supreme Court has held that, if an applicant can satisfy the Court of the tripod test i.e., the absence of (i) flight risk (ii) tampering with the evidence and (iii) influencing the witnesses, then, the bail can be granted to the applicants. 10. On a cumulative appreciation of materials placed on record, and especially considering the gravity of the accusation levelled against the petitioners, the severity of the punishment that is likely to be imposed in the event of the conviction, the apprehension projected by the prosecution that there is every likelihood of the petitioner influencing the witnesses and tampering with evidence, and that the investigation is still in progress, I am not inclined to exercise the powers of this Court under Section 439 at this stage, and enlarge the 9 B.A. No.10699 of 2023 petitioners on bail. Therefore, I am of the view that the petitioners are not entitled to be released on bail. Resultantly, the bail application is dismissed. Sd/- **C.S.DIAS, JUDGE** mtk/05.01.2024 10 ## B.A. No.10699 of 2023 ## `APPENDIX OF BAIL APPL. 10699/2023` ``` PETITIONER ANNEXURES ``` ``` Annexure A1THE TRUE COPY OF THE ORDER IN CRL.M.C. NO. 1421/2023 DATED 24.11.2023 Annexure A2COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 885/2023 OF VENGARA POLICE STATION ```