UNAIF v. STATE OF KERALA and THE STATION HOUSE OFFICER, PANAMARAM POLICE STATION

1 Bail Application No.2252 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` THURSDAY, THE 23[RD] DAY OF MAY 2024 / 2ND JYAISHTA, 1946 BAIL APPL. NO. 2252 OF 2024 ``` ``` CRIME NO.18/2024 OF PANAMARAM POLICE STATION, Wayanad ``` ``` PETITIONER/S: ``` ``` UNAIF, AGED 38 YEARS S/O. ANTHRU, PADYAN HOUSE, ANCHUKUNNU POST, ANCHUKUNNU VILLAGE, MANANTHAVADY TALUK, WAYANAD DISTRICT, PIN - 670645 ``` ``` BY ADVS. KRISHNA PRASAD. S SINDHU S KAMATH SWAPNA S.K. ROHINI NAIR SURAJ KUMAR D. SUNILKUMAR K.K. NAYANAMBIKA P.S. A.KARTHIKA SIVAN ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER , PANAMARAM POLICE STATION , PANAMARAM P.O , WAYANAD, PIN - 670721`** S ``` Sr PP Smt Seetha S ``` ## **`THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON`** ``` 23.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.2252 of 2024 ## **C.S.DIAS,J** **======================** ## **Bail Application No.2252 of 2024** **-----------------------------------** ## **Dated this the 23[rd] day of May, 2024** ## **O R D E R** This is the second application filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioner is the second accused in Crime No.18/2024 of the Panamaram Police Station, Wayanad, registered against the accused (eight in number) for allegedly committing the offences punishable under Sections 341, 324, 326, 427 and 294(b) read with Section 34 of the Indian Penal Code. 3. The essence of the prosecution case is that: On 8.1.2024 at around 21.30 hours, the accused, in furtherance of 3 Bail Application No.2252 of 2024 their common intention and out of their previous animosity towards the de facto complainant, wrongfully restrained and pulled him out of his car and voluntarily caused hurt to him, by hitting him with a helmet and a stone and he suffered a nasal bone fracture. The accused also abused the de facto complainant in obscene language, and damaged vehicle and caused a loss of Rs.5,000/-. Thus, the accused have committed the above offences. 4. Heard; Sri. Krishna Prasad.S, the learned counsel appearing for the petitioner and Smt. Seetha.S., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that even though this Court had dismissed the petitioner’s earlier application for an order of pre-arrest bail by Annexure A2 order, the petitioner has filed the present application in view of the change of circumstances because it was on a mistake 4 Bail Application No.2252 of 2024 committed by the Investigating Officer in reporting the rank of the petitioner that this Court observed that it was the petitioner who caused the injury to the de facto complainant. In fact, it was one Rasheed, who has now been named as the first accused, who hit the de facto complainant with a helmet and the third accused who hit the de facto complainant with a stone and he suffered a nasal bone fracture. The only overt act alleged against the petitioner, who is now named as the second accused is that he hit the de facto complainant with his hand and attempted to strangulate him. Therefore, the offence under Sec.326 will not be attracted. Hence, the findings of this Court in Annexure A2 order as regards the overt act of the petitioner is incorrect. Thus, the petitioner is entitled to an order of prearrest bail. 6. The learned Public Prosecutor has filed a memo dated 11.4.2024 with the statement of the Investigating 5 Bail Application No.2252 of 2024 Officer. The Investigating Officer has in his statement categorically stated that the FIR was registered against Unaif (petitioner) as Accused No.1 and Rasheed as Accused No.2 as stated by the de facto complainant in the FI statement. However, in the investigation, it has been unveiled that it was Rasheed who has played the main role in the crime. Accordingly, the Investigating Officer has filed a report before the Judicial First Class Magistrate Court-I, Mananthavady and rearranged the rank of the accused. Consequently, Rasheed has been made the first accused and the petitioner/Unaif has been made the second accused. As per the report, it was the first accused/Rasheed, who hit the de facto complainant on his head with a helmet and who broke the wind shield of de facto complainant’s vehicle. Likewise, it was the third accused who hit the de facto complainant on his nose with a stone and he suffered a nasal bone fracture. 6 Bail Application No.2252 of 2024 7. On an anxious consideration of the facts, the materials placed on record and the submissions made across the Bar, especially the statement filed by the Investigating Officer, inter alia, stating that it is the present accused 1 and 3 who had assaulted the de facto complainant and due to the overt act of the third accused that the de facto complainant suffered a nasal bone fracture and prima facie there is no other material to substantiate the fact that the petitioner has committed the offence under Sec.326 of the IPC, though that is matter to be investigated and decided at the time of trial, I am of the definite view that the petitioner is entitled to an order of pre-arrest bail because his custodial interrogation is not necessary and no recovery is to be effected. Hence, I am convinced that the petitioner has made out exceptional circumstances to invoke the extra-ordinary jurisdiction of this Court under Section 438 of the Code. 7 Bail Application No.2252 of 2024 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 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; 8 Bail Application No.2252 of 2024 (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 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, 9 Bail Application No.2252 of 2024 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/- sks/23.5.2024 **C.S.DIAS, JUDGE**