Sayyid Muhammed Aboobacker Aidroose v. State of Kerala and Perinthalmanna Police Station

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5944 OF 2024 ``` ``` CRIME NO.815/2024 OF Perinthalmanna Police Station, Malappuram ``` ``` ------------ ``` ## **`PETITIONER/3RD ACCUSED :-`** ``` SAYYID MUHAMMED ABOOBACKER AIDROOSE, AGED 28 YEARS S/O,.POOKKOYA THANGAL KOZHIYIL, MANATHAL HOUSE, KALATHILPEEDIKA, NELLIPARAMBU, MATTARAKKAL POST, ARAKKUPARAMBU, MALAPPURAM DISTRICT, PIN - 679 322 ``` ``` BY ADVS. K.ANAND BENNY ANTONY PAREL HUSSAIN KOYA VALIYAVEEDAKATH AMEER SALIM ``` ## **`RESPONDENT/STATE AND COMPLAINANT :-`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 THE STATION HOUSE OFFICER PERINTHALMANNA POLICE STATION, MALAPPURAM DISTRICT, PIN - 678 541`** ``` BY ADVS. SRI.GRASHIOUS KURIAKOSE, ADGP SRI.C.K.SURESH, SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 29.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BAIL APPL. NO. 5944 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 29th day of July, 2024** This is the second application filed under Section 439 of the Code of Criminal Procedure, 1973, by the third accused in Crime No.815/2024 of the Perinthalmanna Police Station, Malappuram, which is registered against the accused, for allegedly committing the offences punishable under Sections 143, 147 and 302 r/w Section 149 of the Indian Penal Code. The petitioner was arrested and remanded to judicial custody on 30.04.2024. 2. The gravamen of the prosecution case is that; on 28.04.2024, at around 20:45 hours, the accused, in prosecution of their common intention, formed themselves into an unlawful assembly and they pulled out one Nisamudheen (deceased) from the shop of one Muhammed Musthafa and they brutally attacked him with weapons. The deceased suffered grievous injuries, and succumbed to ``` BAIL APPL. NO. 5944 OF 2024 ``` ``` -: 3 :- ``` the same night at 22:30 hours. Thus, the accused have committed the above offences. 3. Heard; Sri.K.Anand, the learned counsel appearing for the petitioner and Sri.C.K.Suresh, the learned Special Public Prosecutor. 4. The learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. He has been falsely implicated in the crime. There is no material to substantiate the petitioner's involvement in the case. In any given case, the petitioner has been in judicial custody since 30.04.2024, the investigation in the case is not complete and the final report has not been laid. Therefore, the petitioner is entitled to statutory bail as contemplated under Section 167(2) of the Cr.P.C. Therefore, the application may be allowed. 5. The learned Public Prosecutor seriously opposed the application. He submitted that the investigation is in ``` BAIL APPL. NO. 5944 OF 2024 ``` ``` -: 4 :- ``` progress. He also stated that if the petitioner is enlarged on bail, there is every likelihood of him tampering with the evidence and intimidating the witnesses. Nonetheless, he did not dispute the fact that the petitioner was arrested and remanded to judicial custody on 30.04.2024, the investigation in the case is not complete and the final report has not been laid even after the lapse of 90 days. 6. On an appreciation of the materials on record, it can be seen that the petitioner was arrested and remanded to judicial custody on 30.04.2024, that is, the petitioner has been in judicial custody for more than 90 days. Indisputably, the investigation in the case is not complete and the final report has not been laid. 7. Subsections (1) and (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:- 167. Procedure when investigation cannot be completed in twenty-four hours.—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in ``` BAIL APPL. NO. 5944 OF 2024 ``` ``` -: 5 :- ``` charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding— (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;] 8. A three-Judge Bench of the Honourable Supreme Court in **Uday Mohanlal Acharya** v. **State of** **Maharashtra** [(2001) 5 SCC 453], reiterated the legal ``` BAIL APPL. NO. 5944 OF 2024 ``` ``` -: 6 :- ``` ## proposition in **Sanjay Dutt** v. **State through C.B.I., Bombay** (supra). In paragraph 13 (3) it was opined thus: "13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added) 9. In the instant case, as the petitioner has been in judicial custody for the last 90 days, the investigation in the case is not complete and the final report has not been laid, I am satisfied that the petitioner is entitled to be released on statutory bail since it is his indefeasible right under Section 167(2) of the Code. Hence, I allow the bail application. In the result, the application 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 ``` BAIL APPL. NO. 5944 OF 2024 ``` ``` -: 7 :- ``` satisfaction of the court having jurisdiction, which shall be subject to the following conditions :- - (i) The petitioner shall appear before the on - Investigating Officer every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer on every third Saturday till the conclusion of the trial in Crime No.815/2024; - (ii) The petitioner 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (iii) The petitioner shall not commit any offence while he is on bail; - (iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he ``` BAIL APPL. NO. 5944 OF 2024 ``` ``` -: 8 :- ``` shall file an affidavit to the effect before the court below on the date of execution of the bond; - (v) The petitioner shall furnish his permanent and present addresses and mobile number to the Investigating Officer and file a memo before the jurisdictional court; - (vi) The petitioner shall not leave the territorial jurisdiction of the Court of Session, Manjeri without the previous permission of the jurisdictional court. - (vii) 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. - (viii) Applications for deletion/modification of the bail conditions shall be filed and entertained before the court below. ``` BAIL APPL. NO. 5944 OF 2024 ``` ``` -: 9 :- ``` (ix) 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 petitioner even while the petitioner 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/C.S. DIAS, JUDGE** Jvt/29.7.2024 ``` BAIL APPL. NO. 5944 OF 2024 ``` ``` -: 10 :- ``` ## **`APPENDIX OF BAIL APPL. 5944/2024`** ## **`PETITIONER ANNEXURES:-`** |**`Annexure A`**|**`TRUE COPY OF FIR NO: 815/2024 DATED 29.04.2024 OF`**| |---|---| ||**`PERINTHALMANNA`**<br>**`POLICE`**<br>**`STATION,`**<br>**`MALAPPURAM`**| ||**`DISTRICT`**| |**`Annexure B`**|**`TRUE COPY OF THE ORDER IN CRL. M C NO: 668/2024`**| ||**`DATED 20.05.2024 OF THE HON'BLE COURT OF SESSION,`**| ||**`MANJERI DIVISION`**| |**`Annexure C`**|**`TRUE COPY OF THE ORDER OF THIS HON'BLE COURT IN B`**| ||**`A NO: 4362/2024 DATED 04.07.2024`**| |**`Annexure D`**|**`TRUE COPY OF THE TREATMENT CERTIFICATE FROM THE`**| ||**`"MOULANA`**<br>**`HOSPITAL,`**<br>**`PERINTHALMANNA"`**<br>**`DATED`**| ||**`11.07.2024`**|