Kerala High Court
Mishal Mubarak vs State Of Kerala on 4 January, 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
THURSDAY, THE 4TH DAY OF JANUARY 2024 / 14TH POUSHA, 1945
BAIL APPL. NO. 11436 OF 2023
CRIME NO.2496/2023 OF ERNAKULAM SOUTH POLICE STATION, ERNAKULAM
AGAINST THE ORDER/JUDGMENT CRMC 3305/2023 OF DISTRICT COURT & SESSIONS
COURT, ERNAKULAM
PETITIONER/ACCUSED NO.2:
MISHAL MUBARAK
AGED 21 YEARS
S/O., ABDUL SHUKOOR K.P, BAYAN PALACE KOVUKKAL KADAVU,
KALLAMALA, AZHIYUR CHOMBALA, KOZHIKKODE, PIN - 673308
BY ADVS.
M.K.MUFEED
MUHAMMED YASIL
M.A.AHAMMAD SAHEER
E.A.HARIS
RESPONDENTS/STATE & COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN -
682031
2 STATION HOUSE OFFICER
ERNAKULAM TOWN SOUTH POLICE STATION ERNAKULAM, PIN - 682015
OTHER PRESENT:
PP SRI M P PRASANTH
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 04.01.2024, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO.11436 OF 2023
2
O R D E R
The application is filed under Section 438 of the Code of
Criminal Procedure, 1973, (for short, the Code) for an order of
pre-arrest bail.
2. The petitioner is the second accused in Crime
No.2496/2023 of the Ernakulam Town South Police Station,
Ernakulam, registered against the accused for the offences
punishable under Sections 341, 325, 308 r/w. 34 of the Indian
Penal Code.
3. The prosecution case, in brief, is that: on 24.10.2023 at
about 8.50 p.m, while the accused were in an intoxicated state in
a bar, a friend of the defacto complainant stared at the women,
who were along with the accused. The first accused immediately
pushed the friend of the defacto complainant. When the defacto
complainant tried to intervene in the matter, the first accused
slapped him on his face and the second accused kicked him on
his face. The defacto complainant sustained a nasal bone
BAIL APPL. NO.11436 OF 2023
fracture. The accused in furtherance of their common intention
inflicted the above injuries with the knowledge that death would
be caused to the defacto complainant. Thus, the accused have
committed the above offences.
4. Heard Sri.M.K.Mufeed, learned counsel appearing for
the petitioner and Sri.MP.Prasanth, the learned Public Prosecutor
appearing for the respondent.
5. The learned counsel appearing for the petitioner
submitted that the petitioner is totally innocent of the
accusations levelled against him. It was the first accused, who
had caused the injury to the defacto complainant. The petitioner
was only accompanying the first accused. He has been falsely
implicated in the crime. The petitioner is willing to abide by any
stringent condition imposed by this Court. Hence, the application
may be allowed.
6. The application is opposed by the learned Public
Prosecutor. He submitted that both the petitioner and the first
accused have jointly caused the injuries to the defacto
complainant. The defacto complainant has sustained a nasal
fracture. The custodial interrogation of the petitioner is
absolutely necessary. The investigation is in progress. Hence, the
BAIL APPL. NO.11436 OF 2023
application may be dismissed.
7. On a consideration of the materials on record, it is
apparent that there is a specific overt act alleged against the
petitioner. The investigation is only at a nascent stage.
Moreover, the offences alleged are serious in nature. Therefore,
the custodial interrogation of the petitioner is necessary.
8. Viewed in the above background, I am of the definite
view that this is not a fit case to exercise the discretionary
powers of this Court under Section 438 of the Code and pass an
order of pre-arrest bail. The application is meritless and is only
liable to be dismissed. Nonetheless, taking into consideration the
peculiar facts and circumstances of the case, I am inclined to
issue the following directions:
(i) Notwithstanding the dismissal of the application,
in case the petitioner surrenders before the
Investigating Officer within one week from
today, he shall be interrogated and, thereafter,
be produced before the jurisdictional Magistrate
on the date of surrender itself. If the petitioner
moves an application for bail, the jurisdictional
Magistrate shall, untrammelled by any of the
BAIL APPL. NO.11436 OF 2023
observations made in this order, consider the
bail application on its merits and as expeditiously
as possible;
(ii) If the petitioner does not surrender before the
Investigating Officer, as directed above, the
Investigating Officer will be free to arrest the
petitioner as if no order has been passed in this
case.
Sd/-
C.S.DIAS
JUDGE
shg
