Misbah vs The State Of Kerala
2021 Latest Caselaw 21870 Ker

B.A.No.6449 of 2021                         1




                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                       PRESENT
                      THE HONOURABLE MRS. JUSTICE SHIRCY V.
  WEDNESDAY, THE 3RD DAY OF NOVEMBER 2021 / 12TH KARTHIKA, 1943
                           BAIL APPL. NO. 6449 OF 2021
AGAINST THE ORDER/JUDGMENT IN CRMC 1251/2021 OF DISTRICT COURT &
                          SESSIONS COURT,KOLLAM, KOLLAM
PETITIONER/S:

      1        MISBAH
               AGED 31 YEARS
               S/O.SHIHABUDEEN, FATHIMA MANZIL, SHILPA NAGAR,
               VADAKKEVILA AYATHIL P.O., KOLLAM.
      2        NASSIM
               AGED 28 YEARS
               S/O.YONUS, DAIVAVILA VEEDU, KILIKOLLOOR P.O., KOLLAM.
      3        MIDHILAJ
               AGED 28 YEARS
               S/O.SHIHABUDEEN, FATHIMA MANZIL, SHILPA NAGAR,
               VADAKKEVILA AYATHIL P.O., KOLLAM.
      4        HALLAJI
               AGED 25 YEARS
               S/O.SHIHABUDEEN, FATHIMA MANZIL, SHILPA NAGAR,
               VADAKKEVILA AYATHIL P.O., KOLLAM.
               BY ADV PRIYA SHANAVAS


RESPONDENT/S:

      1        THE STATE OF KERALA
               REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
               KERALA, ERNAKULAM - 682 031.
      2        THE STATION HOUSE OFFICER
               KILIKOLLOOR POLICE STATION, KOLLAM DISTRICT - 691
               004.

       THIS    BAIL      APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
03.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 B.A.No.6449 of 2021                    2




                                  ORDER

Apprehending arrest in connection with Crime No.707 of 2021 of

Kilikolloor police station registered for the offences punishable under

Sections 143, 146, 147, 148, 341, 323, 324, 308 and 149 of the IPC,

the petitioners have preferred this application under Section 438 of

the Code of Criminal Procedure.

2. The case as revealed from the prosecution records is that on

18.7.2021 at about 10 pm while the defacto complainant and his

friends were proceeding in their bike to the house of a relative , the

accused intercepted the vehicle and wrongfully confined them after

forming an unlawful assembly armed with deadly weapons and

attacked them with the intention to commit culpable homicide not

amounting to murder and thereby caused fatal injuries to him

including fracture. His friends also sustained injuries in the attack by

them.Thereby the accused have committed the aforesaid offences.

3. Smt.Priya Shanavas, the learned counsel appearing for the

petitioners submitted that they are absolutely innocent and the

allegation that they have attacked the defacto complainant and his

friends with deadly weapons with the intention to commit culpable

homicide not amounting to murder are absolutely false and baseless.

In fact, the defacto complainant and his men have trespassed into the

residential house of the sister of the 1 st petitioner/1st accused and

attacked her and outraged her modesty. They have not even spared

her minor child. For the illegal activities committed by them Crime

No.706 of 2021 was registered by the very same police and in order

to save them from that case, they were falsely implicated in this case.

In fact no offence as alleged against them have been committed by

them .It is also pointed out that the essential ingredients to attract

an offence under Sec.308 has not been made out in this case.

4. On the other hand, the learned Public Prosecutor produced

the wound certificate of the defacto complainant and his friends who

sustained injuries in the attack by these petitioners. According to the

learned Public Prosecutor specific overtact is there against all these

petitioners as they have together attacked the defacto complainant

and his friends with deadly weapons such as sword, iron rod and

chopper and the weapons used by them to cause injuries have to be

recovered.

5. Heard the rival contentions raised by both sides.

6. The alleged incident was at about 10.00 p.m and the place of

occurrence is also the public road. The allegation raised against this

petitioner is that they have intercepted the motor cycle driven by the

defacto and his friends and attacked them with deadly weapons such

as sword, iron rod and chopper . The definite allegation is that they

have voluntarily caused hurt to them after wrongfully restraining

them. The wound certificate available on record would indicate that

the Al-Ameen the friend of the defacto complainant had sustained

grievous injuries though the other two had sustained only minor

injuries. The CT scan of brain and facial bone inter alia indicates that

he had sustained the following injuries:

1) minimally displaced fracture involving right nasal process of

maxilla.

2) minimally displaced fracture involving the floor and medial

wall of right orbit.

3) Mucosal thickening is noted in right maxillary sinus.

He was suggested follow up treatment also.

7. So prima facie it appears that Al-Ameen the friend of the

defecto complainant had sustained fatal injuries in the attack by the

petitioners. According to the learned counsel for the petitioners as no

injury has been sustained to the vital part of his body, no offence

under Section 308 IPC is attracted in this case. Whether the elements

to attract an offence under Section 308IPC is there or not is a matter

to be decided at the time of trial. Since the application is one for pre-

arrest bail alone, the question to be looked into is whether there is a

prima facie case and whether the petitioners are entitled for pre-

arrest bail as prayed for. The CT Scan report indicates the severity of

the fracture sustained by Al Ameen, which needs several weeks to

heal. He is not an accused in Crime No.706 of 2021 .The injuries

were caused at the time of occurrence. So the case of the petitioners

that as a counter blast to Crime No.706 of 2021, this case has been

registered is not prima facie, correct.

8. It is well settled that no straight jacket formula exists for the

courts to assess an application for grant or rejection of bail. Grant of

bail is involved on various factors such as the nature and gravity of

the accusations, severity of the punishment in the event of conviction,

likelihood of the offence being repeated, danger of flee from justice, if

released on bail, prima facie case against the accused etc. The

discretion of the court in granting bail has to be exercised judiciously

considering the relevant factors involved. On going through the

records available before me, especially the fact that the injured had

sustained serious injuries in the attack by the assailants during night,

the manner in which they were attacked that is by intercepting them

on their way, definitely does not justify in granting of pre-arrest bail.

So also materials are not available to indicate that they were falsely

implicated in the case. As referred above the records would indicate

that they have used deadly weapons to inflict injuries on the injured

and others. So those weapons are also to be recovered by the

investigating agency. That be so, granting of bail is detrimental to the

prosecution in proceeding with the investigation of the case. Still I

think that the petitioners can be directed to surrender before the

investigating officer taking into account of the facts and circumstances

of the case. So they shall surrender before the investigating officer on

8.11.2021 between 10.00 a.m and 12.00 noon. The investigating

officer after recording their arrest and interrogation, can effect

recovery of material objects if any, and then produce them before the

Jurisdictional Court. If an application for bail is moved by them, the

Jurisdictional Magistrate shall consider the same without any delay

and dispose of the same, on merits.

This application is, accordingly disposed of.

Sd/-

SHIRCY V

JUDGE

smm