Junaid and Subair v. State of Kerala and The Station House Officer, Chalissery Police Station

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 ``` ``` BAIL APPL. NO. 11016 OF 2023 ``` ``` CRIME NO.882/2023 OF CHALISSERY POLICE STATION, PALAKKAD AGAINST THE ORDER IN CMP 5305/2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS , PATTAMBI CRMC 5429/2023 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD ``` ## `PETITIONERS/ACCUSED 1 AND 2:` ``` 1 JUNAID, AGED 24 YEARS S/O MUHAMMAD @ NASAR, PALLATH HOUSE, THIRUMITTAKODE P.O, PALAKKAD DISTRICT, PIN - 679533 2 SUBAIR, AGED 23 YEARS S/O MUHAMMAD @ NASAR, PALLATH HOUSE,THIRUMITTAKODE P.O., PALAKKAD DISTRICT, PIN - 679533 BY ADVS. BINOY VASUDEVAN SREEJITH SREENATH RINCY KHADER ``` ## `RESPONDENTS/STATE:` ``` 1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 THE STATION HOUSE OFFICER, CHALISSERY POLICE STATION, CHALISSERY P.O. PALAKKAD DISTRICT, PIN - 679536 BY SR PP SMT NEEMA T V ``` B. A No.11016 of 2023 2 ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B. A No.11016 of 2023 3 ## **Dated this the 23[rd] day of January, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure by the accused 1 and 2 in Crime No.882/2023 of the Challissery Police Station, Palakkad, registered against the accused ( five in number) for allegedly committing the offences punishable under Sections 341, 323, 324, 326, 352, 294(b), 506(ii), 427, 212 and 307 r/w Section 34 of the Indian Penal Code. The petitioners were arrested on 20.10.2023. 2. The gist of the prosecution case is that: around 17.30 hours on 19.10.2023, the accused 1 to 3, in prosecution of the common intention, armed with swords and wooden sticks, wrongfully restrained a bus in which the first informant was travelling, damaged the bus by breaking its glass, used abusive and filthy words to the B. A No.11016 of 2023 4 annoyance of others, and assaulted the first informant on his head and hand. The first informant suffered injuries on his left hand also. It is only because he evaded the hits, his life was saved. Thus, the accused have committed the above offences. 3. Heard; Sri.Binoy Vasudevan, learned counsel appearing for the petitioners and Smt. Neema. T.V., the learned Public Prosecutor appearing for the respondents. 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. The petitioners have been in judicial custody since 20.10.2023, which is more than 95 days. The investigation in the case is complete, that the final report has been laid and the recovery has been effected. The petitioners’ further detention is unnecessary. Hence, the petitioners may be enlarged on bail. 5 B. A No.11016 of 2023 5. The learned Public Prosecutor opposed the application. She contended that the petitioners are persons with severe criminal antecedents. The Investigating Officer has filed a report, which proves the above aspect. The petitioners have committed a heinous offence under Section 307 of the IPC. If the petitioners are let off on bail, there is every likelihood of them committing similar offences, intimidating the witnesses, and tampering with the evidence. Moreover, the final report has been laid on 08.01.2024, before the Jurisdictional Court. Now, proceedings have been initiated against the petitioners under the KAAPA Act. Hence, the application may be dismissed. 6. The gist of the prosecution case is that, on 19.10.2023, the petitioners waylaid in the bus in which the de facto complainant was travelling, and thereafter assaulted him and caused a fracture on his hand. It is only because he evaded the hit that he did not lose his B. A No.11016 of 2023 6 life. On going through the report filed by the Investigating Officer, it is seen that the first petitioner is involved in five crimes of the very same police station registered against him for committing similar offences. It is also stated that a proposal has been sent for initiating proceedings against the first petitioner under Section 3 of the KAAPA Act, 2007, and the orders of the District Collector, Palakkad are awaited. Likewise, it is also seen that the 2[nd] petitioner is involved in three other crimes of similar nature of the very same police station, and a proposal is initiated under Section 15 of the KAAPA Act, 2007, and orders are awaited from the Deputy Inspector General of Police, Thrissur. 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 B. A No.11016 of 2023 7 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.” ## 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 B. A No.11016 of 2023 8 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 Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)” 9. On going through the principles laid by the Hon’ble Supreme Court in the above cited decisions, it is well-settled that the character, behavior, and means of the accused, the likelihood of the offence being repeated, and the reasonable apprehension of the witnesses being influenced are relevant matters that would be weighed while considering an application for bail. B. A No.11016 of 2023 9 10. On an anxious consideration of the materials placed on record, particularly going through the report filed by the Investigating Officer, which clearly reveals that the petitioners are persons with criminal antecedents and proceedings are initiated under the KAAPA Act, I am of the definite view that the petitioners are not entitled to be released on bail at this stage, especially since there is an apprehension expressed by the prosecution that the petitioners may intimidate the witnesses and tamper with the evidence. Therefore, I am not inclined to allow the bail application because there is a danger of justice being thwarted. The application is meritless, and it is only to be dismissed. Resultantly, the application is dismissed. Sd/- ## **C.S.DIAS, JUDGE** mtk/23.01.24 B. A No.11016 of 2023 10 ## `APPENDIX OF BAIL APPL. 11016/2023` ``` PETITIONER ANNEXURES Annexure 1 TRUE COPY OF THE FIR IN CRIME NO.882/2023 OF CHALISSERY POLICE STATION Annexure 2 TRUE COPY OF THE ORDER DATED 01-11-2023 IN C.M.P.NO.5305 OF 2023 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PATTAMBI Annexure 3 TRUE COPY OF THE ORDER DATED 18-11-2023 IN CRL.M.C.NO.5429 OF 2023 ```