Thahir P.K. v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 1[ST] DAY OF JUNE 2023 / 11TH JYAISHTA, 1945** **BAIL APPL. NO. 4102 OF 2023** **CRIME NO,221/2023 OF PAYYOLI POLICE STATION, KOZHIKODE AGAINST THE ORDER/JUDGMENT IN MC 758/2023 OF DISTRICT COURT &** ## **SESSIONS COURT,KOZHIKODE** ## **PETITIONER/ACCUSED NO.1:** **THAHIR P.K AGED 37 YEARS S/O MAMMU, POOVATHUMPADY HOUSE, THIKKODI P.O, PAYYOLI, KOZHIKKODE, PIN - 673529** ## **BY ADV SALAHUDEEN AYOOBI T.A.** ## **RESPONDENTS/STATE & COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031** **ADDL R2 ASLAM P.V, RESIDING AT PUTHIYA VALAPPIL (H), THIKKODI (POST) 673522, KOZHKKODE DISTRICT** **IS IMPLEADED AS ADDITIONAL R2 AS PER ORDER DATED 01.06.2023 IN CROL.M.A.NO.1/2023** **BY ADVS. M.P.SHAMEEM AHAMED P.P.HASHICK AKHIL PHILIP MANITHOTTIYIL** **SRI.P G MANU, SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO.4102 OF 2023** **2** ## **ORDER** Dated this the 1[st] day of June, 2023 Anticipatory bail plea moved by the first accused in crime No.221/2023 of Payyoli police station, Kozhikode is the crux of this petition filed under Section 438 of the Code of Criminal Procedure. 2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor in detail and perused the relevant documents form part of the case diary placed by the learned Public Prosecutor. 3. The prosecution allegation is that at about 11.30 pm on 27.04.2023, accused Nos.1 to 4 criminally trespassed upon the residence of the defacto complainant and the first accused, who is the brother of the wife of the defacto complainant, beat on the head of the defacto complainant by using an iron rod with intention to commit culpable homicide **BAIL APPL. NO.4102 OF 2023** **3** not amounting to murder. The other accused assisted the first accused in committing the crime. On this premise, the prosecution alleges commission of offences punishable under Sections 323, 324, 452 and 427 read with Section 34 of IPC. Thereafter, offence under Section 308 of IPC also was incorporated. 4. The learned counsel for the petitioner would submit that the parties are close relatives and there occurred a difference of opinion in the matter of dispute prevailing over the business dealings between them. It is pointed out that even though offence under Section 308 of IPC also is alleged, only minor injuries sustained to the defacto complainant and therefore, the petitioner may be released on bail and he is ready to co-operate with the investigation in the matter of interrogation and recovery of weapon. 5. Adv. PP Hashick, appearing for the defacto complainant, strongly opposed bail and pointed out that this is **BAIL APPL. NO.4102 OF 2023** **4** the second time, the petitioner herein trespassed upon the residence of the defacto complainant and assaulted him. It is submitted further that in the earlier crime, vide crime No.34/2023 of Payyoli police station, also, the overt acts would show commission of offence punishable under Section 452 of IPC even though the police registered the case only alleging bailable offences. The learned counsel for the defacto complainant also submitted that the petitioner has been repeatedly assaulting the defacto complainant and if he would be released on bail, he would repeat the assault against the defacto complainant. Therefore, in such case, grat of anticipatory bail would stall the investigation and also would be hazardous to the life of the defacto complainant. 6. The learned Public Prosecutor also shared the argument advanced by the learned counsel for the defacto complainant and it is also submitted that recovery is essential in this matter since there is allegation that the petitioner herein **BAIL APPL. NO.4102 OF 2023** **5** used an iron rod to beat the defacto complainant. 7. On perusal of the materials available, the prosecution case could be gathered and the copy of wound certificate initially issued from Taluk Head Quarters, Koilandy dated 28.04.2023 would show that the petitioner sustained lacerated wound 1x0.5x 0.1 cm on right side of forehead, two multiple contusions on left side of forehead and swelling over nose. It is seen that he was advised to have ENT consultation and he was referred to Medical College Hospital, for further treatment. 8. It is pertinent to note that the learned counsel for the defacto complainant placed Annnexure R2(c) document showing the treatment underwent by the defacto complainant at Medical College, Kozhikode. The learned counsel for the defacto complainant submitted that the defacto complainant sustained ' _sutured wound of 2.5 cm over upper forehead and two contusion of 4x4 cm over nose_ ' as could be read from **BAIL APPL. NO.4102 OF 2023** **6** Annexure R2(c). 9. On perusal of copy of wound certificate as well as Annexure R2(c), any fatal or serious injuries could be gathered _prima facie_ and I leave the same to be investigated and to be opined by the Doctor during investigation and trial. However, it is true that the petitioner earlier attacked the defacto complainant and for which crime No.34/2023 was registered alleging commission of offences punishable under Sections 448 and 427 of IPC and this is the second crime registered against the petitioner alleging assault against the defacto complainant. 10. _Prima facie,_ it appears that the petitioner assaulted the defacto complainant for the second time and the petitioner is in the habit of assaulting the defacto complainant repeatedly. Since the materials available do not justify denial of anticipatory bail, the anxiety expressed by the learned counsel for the defacto complainant should be addressed to **BAIL APPL. NO.4102 OF 2023** **7** avoid further assault against the defacto complainant at the instance of the petitioner. Therefore, the petitioner can be enlarged on anticipatory bail, on conditions, with specific direction to him to subject himself for interrogation for two days in between 10 am and 1 pm to aid the investigation and to recover the weapon at his instance. Further, all necessary conditions also can be imposed and one among the conditions is that the petitioner shall not enter into the house of the defacto complainant or cause any bodily injury or other hazards or disturbances to the defacto complainant in any manner and any such event, if reported or came to the notice of this Court, the same alone shall be a reason to cancel the bail hereby granted. In the result, this petition stands allowed. The petitioner is enlarged on anticipatory bail on conditions: - i. The petitioner shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating **BAIL APPL. NO.4102 OF 2023** **8** Officer can question the petitioner for two days in between 10.00 am 1.00 pm, and recover the iron rod. In the event of his arrest, the Investigating Officer shall produce the petitioner before the Jurisdictional Court on the date of arrest itself. ii. On such production, Jurisdictional Court shall release the petitioner on bail, on executing bond for Rs.30,000/- (Rupees Thirty thousand) each, by himself and by two sureties, each for the like sum to the satisfaction of the Jurisdictional Court. iii. The petitioner shall co-operate with the investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. Further the petitioner shall meet the investigating officer on all Mondays in between 10.00 a.m and 04.00 p.m., without fail, for a period of two months from the date of his release on bail to aid the investigation. iv. The petitioner shall not intimidate the witnesses or interfere with the investigation in any **BAIL APPL. NO.4102 OF 2023** **9** ## manner. v. The petitioner shall not enter into the house of the defacto complainant or cause any bodily injury or other hazards or disturbances to the defacto complainant in any manner and any such event, if reported or came to the notice of this Court, the same alone shall be a reason to cancel the bail hereby granted. vi. The petitioner shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted. **Sd/-** **A. BADHARUDEEN** **JUDGE** nkr