Subair v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946** **BAIL APPL. NO. 3864 OF 2024** **CRIME NO.163/2024 OF Nadapuram Police Station, Kozhikode PETITIONER/S:** **SUBAIR, AGED 48 YEARS S/O. KUNHABDULLA HAJIO, KOMBIYULLATHIL THAZHEKUNIYIL HOUSE, CHEMBRAMKANDY, KUMMAMKODE, KOZHIKODE., PIN - 689547** **BY ADVS. M.B.SHYNI RAJESH KUMAR R. V.R.ANILKUMAR SARAFUDHEEN T. AJITH P.C. ELDHOSE JOY** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** ## **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 3864 OF 2024 2 ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the 1[st] accused in Crime No.163/2024 of the Nadapuram Police Station, Kozhikode, registered against the accused (two in number), for allegedly committing the offences punishable under Sections 341, 353 and 332 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). 3. The gist of the prosecution case is that: on 27.02.2024, at around 12.30 hours, when the Police officials of the Nadapuram Police Station attempted to arrest the 1[st] accused in connection with Crime No.57/2024 of the Thondarnadu Police Station, Wayanad, the accused, in furtherance of their common intention, assaulted the Grade Sub Inspector and two Civil Police Officers and prevented them from discharging their official duties. Thus, the accused have committed the above offences. BAIL APPL. NO. 3864 OF 2024 3 4. Heard; Smt.M.B.Shyni, the learned counsel appearing for the petitioner and Smt.Seetha S., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. The Investigating Officer has deliberately incorporated the above offences to arrest the petitioner because his father had filed a complaint before the Kerala State Minority Commission and the Police were directed to pay compensation to the mother of the petitioner for the atrocities committed by them. The 2[nd] accused had filed Crl.M.C.No.443/2024 before the Court of Session, Kozhikode under Section 438 of the Code, which was allowed by Annexure-IV order by the Sessions Court on finding that there is no physical injury caused to the Police officials and the said petitioner's custodial interrogation was not necessary. The petitioner claims parity with the 2[nd] accused. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. BAIL APPL. NO. 3864 OF 2024 4 6. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report, inter alia, contending that the petitioner along with the other accused had pushed the Police personnel and prevented them from discharging their official duties. Moreover, the petitioner has criminal antecedents since he is involved in three other crimes of similar nature of the Nadapuram Police Station. If the petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Hence, the application may be dismissed. 7. The prosecution allegation against the accused is that, on 27.02.2024, while the Investigating Officer was attempting to arrest the petitioner in connection with another crime of another Police Station, the accused pushed away the Investigating Officer and two Civil Police Officers and prevented them from discharging their official duties. Indisputably, the 2[nd] accused had filed Crl.M.C.No.443/2024 before the Court of Session, Kozhikode and by Annexure -IV order, the learned BAIL APPL. NO. 3864 OF 2024 5 Sessions Judge after finding that the Police officials did not suffer any physical injury and that the custodial interrogation of the 2[nd] accused was not necessary, granted an order of pre-arrest bail. I find that the petitioner is at par with the 2[nd] accused. Therefore, the petitioner is also entitled to a similar order. Hence, I hold that the petitioner has made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. In the result, the application is allowed subject to the following conditions: - (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by BAIL APPL. NO. 3864 OF 2024 6 the Investigating Officer. - (iv) 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 him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before said court within the said period; - (vi) The petitioner shall not get involved in any other offence while on bail; - (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 BAIL APPL. NO. 3864 OF 2024 7 conditions shall also be filed before the court below. - (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]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- - rkc/04.06.2024 **C.S.DIAS, JUDGE** BAIL APPL. NO. 3864 OF 2024 8 ## **APPENDIX OF BAIL APPL. 3864/2024** ## **PETITIONER ANNEXURES** **Annexure 1 TRUE COPY OF THE FIR IN CRIME NO.163/2024 OF NADAPURAM POLICE STATION** **Annexure 2 TRUE COPY OF THE ORDER PASSED BY THE KERALA STATE BACKWARD COMMISSION DATED 8/6/2016** **Annexure 3 TRUE COPY OF THE JUDGMENT DATED 07/11/2016 IN WPC NO- 34440/2016 Annexure 4 TRUE COPY OF THE ORDER DATED 23/3/2024 IN CRL.M.C. NO- 443/2024 OF SESSIONS COURT ,KOZHIKODE**