Kerala High Court

Fasaludheen K vs State Of Kerala on 16 February, 2024

Author: C.S.Dias

Bench: C.S.Dias

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
     FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945
                      BAIL APPL. NO. 1163 OF 2024
        CRIME NO.35/2024 OF Bekal Police Station, Kasargod
 AGAINST THE ORDER/JUDGMENT Bail Appl. 841/2024 OF HIGH COURT OF
                                 KERALA
PETITIONER/S:

          FASALUDHEEN K
          AGED 32 YEARS
          S/O FAREEDS, KANATHIL HOUSE, KUNIYA, PERIYA VILLAGE,
          HOSDURGE, KASARGODE DT., PIN - 671315

          BY ADVS.
          M.MUHAMMED SHAFI
          T.RASINI
          ADHEELA NOWRIN



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
16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 BAIL APPL. NO. 1163 OF 2024
                                2

                           ORDER

This second application is filed under Section 439 of

the Code of Criminal Procedure, 1973, by the 1 st

accused in Crime No.35/2024 of the Bekal Police Station,

Kasargod, registered against the accused (five in

number), for allegedly committing the offences

punishable under Secs.143, 147,148, 341,323, 324 and

308 read with Sec.149 of the Indian Penal Code. The

petitioner was arrested on 16.01.2024.

2. The gist of the prosecution case is that: around

22.30 hours on 13.01.2024 the accused in prosecution of

their common intention formed an unlawful assembly to

cause injury to the defacto complainant. Then, the first

accused hit the defacto complainant with an iron rod and

others pelted stones at them. Since the defacto

complainant warded off the attack, his life was saved.

Thus, the accused have committed the above offences.

3. Heard; Sri.Muhammed Shafi M., learned counsel BAIL APPL. NO. 1163 OF 2024

appearing for the petitioners and Smt. Seetha S., the

learned Public Prosecutor.

4. The learned counsel for the petitioner submitted

that the petitioner is totally innocent of the accusations

levelled agaisnt him. The petitioner has been falsely

implicated in the crime. The petitioner has been in

judicial custody since 16.01.2024. The petiitoner's earlier

application was dismissed by this Court by Annexure A6

order principally on the ground that the investigation in

the case was in progress and recovery had to be

effected. Presently, the investigation has been completed

and recovery has been effected. The petitioner's further

detention is not necessary. Hence, the application may

be allowed.

5. The learned Public Prosecutor opposed the

application. She contended that it was the petitioner who

inflicted injury on the defacto complainant. Nonetheless,

she conceded to the fact that the petitioner has been in

judicial custody for the last one month, that the BAIL APPL. NO. 1163 OF 2024

investigation in the case is at its fag end and recovery

has been effected.

6. In Prasanta Kumar Sarkar v. Ashis Chatterjee

and Another [(2010) 14 SCC 496], in paragraph 9, the

Honourable Supreme Court has observed as follows:

"9. ......... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation: (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail."

7. Again, the Honourable Supreme Court in Kalyan

Chandra Sarkar v. Rajesh Ranjan alias Pappu Yadav

and another [AIR 2004 SC 1866] has held thus:

"11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non application of mind. It is also necessary for the BAIL APPL. NO. 1163 OF 2024

Court granting bail to consider among other circumstances, the following factors also before granting bail; they are, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the Court in support of the charge. See Ram Govind Upadhyay v. Sudarshan Singh and others (2002(3) SCC 598) and Puran v. Rambilas and another (2001 (6) SCC 338)"

8. After bestowing my anxious consideration to the

facts, the materials placed on record, the rival

submissions made across the Bar, particularly taking

note of the fact that the petitioner has been in judicial

custody since 16.01.2024, the investigation in the case is

practically complete and recovery has been effected, I

am of the definite view that the petitioner's further

detention is unnecessary. Hence, I am inclined to 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

satisfaction of the court having jurisdiction, which shall BAIL APPL. NO. 1163 OF 2024

be subject to the following conditions:

(i) The petitioner shall appear before the Investigating

Officer on every Saturday between 9 a.m. and 11 a.m for

a period of one month or till the final report is laid,

whichever is earlier. He shall also appear before the

Investigating Officer as and when required;

(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

him 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 shall file an affidavit to

the effect before the court below on the date of BAIL APPL. NO. 1163 OF 2024

execution of the bond;

(v) 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.

(vi) Applications for deletion/modification of the bail

conditions shall be moved and entertained by the court

below.

(vii) 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
rkc/16.02.24
 BAIL APPL. NO. 1163 OF 2024


              APPENDIX OF BAIL APPL. 1163/2024

PETITIONER ANNEXURES




Annexure A1         TRUE COPY OF THE FIR IN CRIME NO.
                    35/2024   OF BAKEL POLICE STATION,
                    KASARGODE

Annexure A2         TRUE COPY OF THE FIR IN CRIME NO.
                    40/2024   OF BAKEL POLICE STATION,
                    KASARGODE

Annexure A3         TRUE COPY OF THE ORDER DATED 20-01-2024
                    IN CMP NO. 105 /2024 OF HON'BLE JFCM
                    COURT-II, HOSDURG

Annexure A4         TRUE COPY OF THE ORDER DATED 29-01-2024
                    IN CMP NO. 200 /2024 OF HON'BLE JFCM
                    COURT-II, HOSDURG

Annexure A5         TRUE COPY OF THE ORDER DATED 30-01-2024