Muhammed Rahees P.H. @ Rahees; Muhammed Irshad @ Kavu; Sahid.C.H. v. Sub Inspector of Police, Bekal Police Station, Kasaragod District; State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 18TH DAY OF OCTOBER 2016/26TH ASWINA, 1938** **Bail Appl..No. 6531 of 2016 () -------------------------------** **AGAINST THE ORDER IN CMP 3878/2016 of J.M.F.C.-II,HOSDRUG DATED 1008-2016 CRIME NO. 362/2015 OF BEKAL POLICE STATION , KASARGOD** **PETITIONER(S)/PETITIONERS/ACCUSED:** **---------------------------------** ## **1. MUHAMMED RAHEES P.H @ RAHEES** - **S/O HAMZA,AGED 21 YEARS, AYISHAS,PAKYARA,NEAR GOVT.WELL,PAKYARA, KASARGOD DISTRICT.** **2. MUHAMMED IRSHAD @ KAVU,AGED 19 YEARS,** - **S/O.HAMZA,BILAL MANZIL,PAKYARA,BARA VILLAGE, KASARAGOD DISTRICT.** **3. SAHID.C.H,** - **S/O.HASSAINAR,PAAKAYARAKUNNIL,PAKYARA,** - **P.O.UDUMA,KASARAGOD DISTRICT.** ## **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENTS/COMPLAINANTS & STATE:** **--------------------------------** **1. SUB INSPECTOR OF POLICE BEKAL POLICE STATION,KASARAGOD DISTRICT-671121.** **2. STATE OF KERALA, (RESPONDENTS 1 AND 2 REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, COCHIN-682031)** ## **BY PUBLIC PROSECUTOR SRI. AMJAD ALI.** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 1810-2016, ALONG WITH CRMC. 6321/2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - ## B.A.No.6531 of 2016 & Crl.M.C. No. 6321 of 2016 - - - - - - - - - - - - - - - - Dated 18[th] October, 2016 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.The petitioners are the accused Nos. 1 to 3 in Crime No.362 of 2015 of Bekal Police Station registered for offences punishable under Sections 143, 147, 148, 341, 324, 326, 307 and 302 read with Section 149 of the IPC. They were granted bail by this Court by order dated 7.8.2015 in B.A.No.4692 of 2015 subject to stringent conditions. - 2.While they were on bail, the petitioners got involved in Crime No. 57 of 2016 and 261 of 2016 of Bekal Police Station. Since involvement in another Crime and intimidation of witnesses amounted to express violation of the conditions of the bail order, an application was filed by the Station House Officer seeking cancellation of bail. - 3.The learned Magistrate, after hearing the petitioners as B.A.No.6531 of 2016 & Crl.M.C. No. 6321 of 2016 -2- well as the learned Public prosecutor, came to the conclusion that involvement in crimes clearly amounted to violation of condition No.iv of the order of this Court and cancelled the bail and ordered rearrest of the accused by the impugned order. - 4.I have heard the learned counsel appearing for the petitioners as well as the learned Public Prosecutor. - 5.Learned counsel appearing for the petitioners would submit that Crime No.57 of 2016 was registered at the instance of the brother of the deceased in Crime No.362 of 2015 to secure cancellation of bail. According to the learned counsel, the allegations are false and frivolous and raised for the sole purpose of setting up of a cause of action for cancelling the bail. No such incident as alleged have taken place. In respect of Crime No.216 of 2016 of Bekal Police Station, it is submitted that the crime was registered several weeks after the alleged incident and a B.A.No.6531 of 2016 & Crl.M.C. No. 6321 of 2016 -3- copy of the wound certificate of the alleged victim would reveal that the case was false and fabricated. It is further pointed out that final report has not been laid before the jurisdictional court in Crime No.362 of 2015. The bail was cancelled on 10.8.2016 and the petitioners have been remanded. According to the learned counsel, it is on the basis of false and concocted crimes that the petitioners are roped in. Relying on a catena of decisions, it is submitted that once bail is granted, it should not be cancelled in a mechanical manner and the failure of the court below to assign cogent and convincing reasons are highlighted as sufficient enough reason to interfere with the order of the court below. 6.It is in the aforesaid circumstances that Crl.M.C.No.6321 of 2016 is preferred seeking to quash Annexure A2 order passed by the learned Magistrate. The petitioners have also preferred a bail application praying for releasing B.A.No.6531 of 2016 & Crl.M.C. No. 6321 of 2016 -4- them on bail. Both these petitions are considered together. 7.It is by now settled that very cogent and overwhelming circumstance are necessary for an order directing the cancellation of bail already granted. The power to take back in custody an accused enlarged on bail has to be exercised with caution and circumspection. Unless there are materials to show that the accused have forfeited the rights to remain at large by hampering or attempting to hamper the fair investigation of the case or by putting or attempting to put the fair trial of the case in jeopardy, the bail granted cannot be cancelled. However, the power, though of an extra ordinary nature, is meant to be exercised in appropriate cases when, by a preponderance of probabilities, it is clear that the accused is interfering with the course of justice by tampering with witnesses. 8.I have gone through the facts of the instant case and have B.A.No.6531 of 2016 & Crl.M.C. No. 6321 of 2016 -5- perused the case diary which has been handed over for perusal by the learned Public Prosecutor. The prosecution allegation in Crime No.57 of 2016 is that on 2.2.2016 the petitioners have wrongfully restrained the de facto complainant, who is none other than the brother of the deceased and thereafter assaulted him and caused injuries. It is further alleged that the petitioners have used the key of a bike to assault him. The wound certificate prepared by the Medical Officer on 2.2.2016 would reveal that the only injury sustained by him, is pain and tenderness on the right shoulder and the victim was treated as an outpatient. In so far as Crime No.216 of 2016 is concerned, the incident is said to have taken place on 9.3.2016 at 10.30 pm and the FI statement has been lodged only on 21.4.2016 at 5.30 pm. Allegations are that the petitioners and the other accused had donned the role of moral policemen and assaulted a couple. Though the B.A.No.6531 of 2016 & Crl.M.C. No. 6321 of 2016 -6- allegation is that the petitioners have assaulted two persons, the wound certificate of Ashraf, the injured witness would reveal that he had sustained injury on account of a road traffic accident and not as a result of assault by any of the accused. The long delay in registering the crime and also the emphatic assertion by the injured in the would certificate cannot be ignored. - 9.Further more, the bail was cancelled and the petitioners were rearrested on 22.8.2016 and they are languishing in prison since then. Having regard to the facts and circumstances, I am of the view that the petitioners can be enlarged on bail at this stage by imposing stringent conditions to safeguard the interest of the prosecution as well. - i. Petitioners will be released on bail on their executing a bond for Rs.One lakh each, with two solvent sureties each for the like sum to the satisfaction of the court below. B.A.No.6531 of 2016 & Crl.M.C. No. 6321 of 2016 -7- ii. They shall appear before the investigating officer between 10.30 am and 11.30 am on every Friday for three months or till the final report is filed, which ever is earlier. iii. They shall not enter the local limits of Bekal Police Station till the conclusion of the investigation except for complying with the directions in the order or with the previous permission for the learned Magistrate concerned. iv. They shall not intimidate or attempt to influence the prosecution witnesses, nor shall they get themselves involved in any other criminal case. v. The passport, if any, surrendered as per order dated 7.8.2015 in B.A. No.4692 of 2015 shall be retained by the court. vi. They shall not leave India without the previous permission of the court of enquiry or trial court as the case may be. B.A.No.6531 of 2016 & Crl.M.C. No. 6321 of 2016 -8- In case of violation of any of the above conditions, the lower court concerned is empowered to cancel the bail in accordance with law. Bail application and Crl.M.C. are disposed off. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/-18.10.16