Nijam and Shafeek v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 15[TH] DAY OF DECEMBER 2022 / 24TH AGRAHAYANA, 1944 BAIL APPL. NO. 5641 OF 2022** ## **PETITIONERS/ACCUSED NOS.1 & 2:** 1 NIJAM AGED 39 YEARS S/O ISMAIL, NADUCHAL VEEDU, KOTTOOR, MANNOORKKARA,, PIN - 695574 2 SHAFEEK AGED 20 YEARS S/O SIDDIK, KOCHUKONATH VEEDU, KOTTOOR, MANNOORKKARA VILLAGE, NEDUMANGAD TALUK , THIRUVANANTHAPURAM, PIN - 695574 BY ADVS. M.R.SASITH RAJITHA V.K R.K.CHIRUTHA NEELANJANA NAIR ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM,, PIN - 682031 ## **OTHER PRESENT:** PP - M.C.ASHI THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 15.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **B.A. No.5641 of 2022 2** ## **VIJU ABRAHAM, J.** **-------------------** ## **B.A. No.5641 of 2022** **------------------------------** **Dated this the 15[th] day of December, 2022** ## **ORDER** Application for anticipatory bail. 2. The petitioners are the 1[st] and 2[nd] accused in Crime No. 354 of 2022 of Neyyar Dam Police Station alleging offences punishable under Sections 55(a), 55D, 58 & 56(b) of the Abkari Act. 3. The prosecution allegation is that the accused having some vengeance towards the de-facto complainant, with an intention to cause bodily harm to the de-facto complainant, on 18.06.2022 at about 05.45 PM, the 1st accused telephoned the de-facto complainant and asked him to come near Kottoor telephone exchange and the 2nd accused gave a hit on the right-hand side of the hip from the back of the de-facto complainant who was urinating in the public place, threatening him by asking whether the defacto complainant would repeat the same. At that ## **B.A. No.5641 of 2022 3** point the 1st accused using the tail of the knife caused swelling and black spot in the left eye of the de-facto complainant and the de-facto complainant's right hand palm was injured when he tried to defend the attack of the 1st accused. The de-facto complainant also fell down causing bleeding in his nose and when the people who watched the incident when tried to keep away the accused, the 1st accused hit at the de-facto complainant's mouth with his wrist and the de-facto complainant was also hit on his right cheeks when the de-facto complainant's brother questioned the act of the accused by saying that they will do it again. 4. After registration of FIR the accused had moved a bail application before the Judicial Magistrate of the First Class at Kattakada for bail and the bail was granted to the accused. Subsequently, the police filed a petition under Section 437(5) of the Criminal Procedure Code for cancellation of the bail granted to the accused. The contentions of the police was that originally the crime was registered ## **B.A. No.5641 of 2022 4** under section 323, 324 r/w 34 of the Indian penal Code. Subsequently, an offence under Section 326 was added pursuant to an additional statement given by the informant subsequent to the order of the court below allowing bail to the accused. Further, it was contended that for the purpose of investigation it is necessary to get a police custody since recovery of the weapon is pending. After hearing the petition and objection, the court below cancelled the bail granted to the accused by virtue of order dated 01.07.2022. It is submitted that the petitioner has not been arrested yet and the petitioner apprehends arrest any time. 5. It is also submitted that the injuries caused are not serious in nature and does not attract any offence punishable under Section 326. Additional offence is appended only to harass the petitioners herein. All the weapons can be recovered avoiding an arrest and investigation can be carried out with full cooperation of the accused. 6. In fact, the de-facto complainant itself is a ## **B.A. No.5641 of 2022 5** habitual offender involved in several crimes and he has criminal antecedents. The petitioners would cooperate with the investigation and further custodial interrogation is unnecessary. 7. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 8. Learned public prosecutor opposed the application for bail mainly contending that earlier only bailable offences were charged and therefore the petitioner was released on bail as per Annexure 3 order and later on investigation, non bailable offences were added. Learned Public Prosecutor further submitted that the weapon used in the alleged crime is to be recovered and therefore custodial interrogation of the petitioners is necessary and that if the petitioners are released, there is every chance to threaten the witnesses. 9. Learned Amicus curiae, Adv. M.T. Suresh would submit that going by the various decisions of the Apex Court including _**Bharat Chowdhary v. State of Bihar, (2003) 8 SCC 77**_ , Section 438 CrPC should be ## **B.A. No.5641 of 2022 6** read and interpreted in the light of Article 21 of the Constitution of India and the court has the necessary power to grant anticipatory bail in nonbailable offences even in cases where cognizance is taken or charge sheet is filed. Learned Amicus curiae further submitted that even though this court in _**Biju v. State of Kerala, 2000 (2) KLT 495**_ has held that once the accused has been released on bail under Section 436 CrPC even if non-bailable offence is added subsequently, the bail granted cannot be cancelled, another bench of this court in _**Ahamed Basheer @ Bachu and another v. S.I of Police Kasargod, 2013 (4) KLT 87**_ , relying on the judgment of the Apex Court in _**Prahlad Singh v. NCT Delhi**_ , **2001 KHC 545** has held that even when a person is released on bail when proceeded with for a bailable offence alone, adding of aggravated non-bailale offence against him in the crime disentitle him to the liberty granted in respect of the minor offence and in such a case, no question of revoking or cancelling of the bail granted earlier for the minor ## **B.A. No.5641 of 2022 7** bailable offence is called for. In view of the above, even without cancellation of the earlier bail granted petitioner is liable to be arrested when non bailable offences are added subsequently. 10. It is a fact that the petitioners have been granted bail earlier in the present case and now they apprehend arrest for the reason that offence punishable under Section 306 IPC is also added. Considering the facts and circumstances of the case and the nature of the allegations, I am inclined to grant bail to the petitioners, but the same shall only be on stringent conditions. The above bail application is allowed with the following directions. The petitioners shall surrender before the investigating officer on 23.12.2022 and make themselves available for interrogation on that day or on any other day/days and time as directed by the investigating officer. The petitioners shall cooperate with the investigation. In the event of arrest of the petitioner in Crime No.354 of 2022 of Neyyar Dam Police Station, they shall be produced ## **B.A. No.5641 of 2022 8** before the jurisdictional Court on the same day and be released on bail on the following conditions: _(i) The petitioners shall execute a bond for sum of Rs.50,000/- (Rupees fifty thousand only) each with two solvent sureties each for the like sum to the satisfaction of the jurisdictional Court;_ _(ii) The petitioners shall appear before the investigating officer in Crime No.354 of 2022 of Neyyar Dam Police Station, on every Saturday at 11 am, till the filing of charge sheet;_ _(iii) The petitioners shall not tamper with any evidence;_ _(iv) The petitioners shall not directly or indirectly make any inducement, threat or promise to any witness acquainted with them from disclosing such facts to the court or to any police officer;_ _(v) The petitioners shall not enter the jurisdictional limit of Neyyar Dam Police Station for a period of two months except for the purpose of complying with condition No.(ii) or to attend any court proceedings;_ _(vi) The petitioners shall not involve in any other crime while on bail._ If any of the aforesaid conditions are violated, the Investigating Officer in Crime No.48 of 2022 of Abkari Range Office, Aluva Circle may file an application before the jurisdictional court for cancellation of bail. ## **B.A. No.5641 of 2022 9** It is made clear that it is within the power of the police to investigate the matter and if necessary to effect recoveries on the information if any given by any of the petitioners even when the petitioners are on bail as per the judgment of the Apex Court in _**Sushila Aggarwal and others v. State (NCT of Delhi) and another (2020 (1) KHC 663)**_ . I place on appreciation to the valuable assistance rendered by the amicus curie Sri.M.T.Suresh Kumar. sd/- **VIJU ABRAHAM,JUDGE** pm