RINSHAD and MUHAMMED v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` WEDNESDAY, THE 31[ST] DAY OF JULY 2024 / 9TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 6034 OF 2024 ``` ``` CRIME NO.401/2024 OF GURUVAYOOR POLICE STATION, THRISSUR ``` ## **`PETITIONERS/ACCUSED 2 AND 5:`** ``` 1RINSHAD AGED 23 YEARS S/O RAHIM, MADATHIPARAMBIL HOUSE, NEAR VALLABHATTA KALARI, VANCHIKADAVU DESOM,MANATHALA VILLAGE, CHAVAKKAD - 680506 ``` ``` 2MUHAMMED AGED 29 YEARS S/O VAHAB, CHANDANA PARAMBIL HOUSE, NEAR VALLABHATTA KALARI, VANCHIKADAVU DESOM,MANATHALA VILLAGE, CHAVAKKAD, PIN - 680506 ``` ``` BY ADVS. M.R.SASITH R.K.CHIRUTHA NEELANJANA NAIR ANJANA SURESH.E REETHU JACOB RIYA KOCHUMMAN NANMA.B.B LIDHIYA GEORGE ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SMT SEETHA S SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 31.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` BA No.6034 of 2024 2 ## **Dated this the 31[st] day of July, 2024 O R D E R** The application is filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita ( ‘the BNSS’ for short) 2023, by the accused 2 and 5 in Crime No. 401/2024 of the Guruvayoor Temple Police Station, Thrissur, which is registered against them for allegedly committing the offences punishable under Sections 189(2), 191(2), 191(3), 329(3), 126(2), 118(1), 118(2) and 190 of the Bharatiya Nyaya Sanhita, 2023 (in short, ‘the BNS'). The petitioners were arrested and remanded to judicial custody on 10.07.2024. 2. The essence of the prosecution case is that: on 05.07.2024, at around 22.45 hours, the accused, in furtherance of their common intention, had formed an unlawful assembly, and the accused 1 and 2 armed with wooden sticks and the third accused with an iron pipe BA No.6034 of 2024 3 trespassed into the compound of the Polakulath Sree Krishna Regency Bar Hotel, where the defacto complainant was working as a supervisor. Then, the accused 1 to 3 attacked the defacto complainant with sticks and an iron pipe, and he suffered grievous injuries. Thereafter, the fifth accused facilitated the accused 1 to 3 to escape from the scene of occurrence in his autorickshaw bearing No. KL-46-C-2507. Thus, the accused have committed the above offences. 3. Heard; Sri. M.R.Sasith., the learned counsel appearing for the petitioners and Smt. Seetha.S, the learned Senior Public Prosecutor. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately incorporated Section 118(2) of the BNS to see that the petitioners are incarcerated. There is no material to substantiate that the defacto complainant has suffered any grievous injury. In any BA No.6034 of 2024 4 given case, the petitioners have been in judicial custody for more than 20 days, the investigation in this case is practically complete, and recovery has been effected. Hence, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. She submitted that there is a specific overt act alleged against the first petitioner/second accused, who assaulted the defacto complainant with a stick and he suffered grievous injuries. She stated that the investigation in the case, so far as the first petitioner is concerned, is in progress and the recovery is to be effected. If the first petitioner is enlarged on bail, it would certainly hamper the investigation. On the contrary, she submitted that the allegation against the second petitioner/fifth accused is that he harboured the accused 1 to 4. Hence, the application may be dismissed. 6. On an evaluation of the materials on record, it can be seen that the specific overt act alleged against the accused 1 to 3, who assaulted the defacto BA No.6034 of 2024 5 complainant with sticks and an iron pipe, and he suffered grievous injuries. The allegation against the second petitioner is that he harboured the accused 1 to 4 from the scene of occurrence. Indisputably, the petitioners have been in judicial custody since 10.07.2024. No recovery is to be effected in respect of the second petitioner. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee** [(2010) 14 SCC 496], the Honourable Supreme Court has laid down the following broad parameters while considering a bail application, namely: “9…………………..However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. 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) likelihood of the offence being repeated (vii) BA No.6034 of 2024 6 reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail”. 8. On an overall consideration of the facts, the materials placed on record and the rival submissions made across the Bar, especially on comprehending the nature, seriousness, and gravity of the accusations attributed against the first petitioner, that there are prima facie materials to substantiate the involvement of the first petitioner, though that is a matter is to be investigated and decided at the time of trial, and further that the recovery is to be effected, at the same time there is no overt act alleged against the second petitioner/fifth accused, so as to attract the offence under Section 118(2) of the BNS, I am of the view that the first petitioner/second accused is not entitled to be released on bail, and the second petitioner/fifth accused is entitled to be released on bail. BA No.6034 of 2024 7 In the result: (i) The application filed by the first petitioner/second accused is dismissed (ii) The application filed by the second petitioner/fifth accused is allowed, by directing the 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 second petitioner/fifth accused shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required; (ii) The second petitioner/fifth accused 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 him from BA No.6034 of 2024 8 disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The second petitioner/fifth accused shall not commit any offence while he is on bail; (iv) The second petitioner/fifth accused 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 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 moved and entertained by 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 BA No.6034 of 2024 9 second petitioner/fifth accused even while the second petitioner/fifth accused 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/- mtk/31.07.2024. **C.S.DIAS, JUDGE**