Kerala High Court

Musthafa vs State Of Kerala on 30 October, 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
   WEDNESDAY, THE 30TH DAY OF OCTOBER 2024 / 8TH KARTHIKA, 1946
                        BAIL APPL. NO. 8627 OF 2024
     CRIME NO.1038/2024 OF KANNUR TOWN POLICE STATION, KANNUR
     AGAINST THE ORDER/JUDGMENT DATED 03.10.2024 IN CRMC NO.1556
OF 2024 OF DISTRICT COURT & SESSIONS COURT,THALASSERY

PETITIONER:

            MUSTHAFA
            AGED 61 YEARS
            S/O. MAMMU, THAVARATH CHALIL HOUSE, P.O. MOWANCHERY,
            KANNUR, PIN - 670613


            BY ADVS.
            K.K.DHEERENDRAKRISHNAN
            R.PARTHASARATHY
            N.P.ASHA




RESPONDENT:

            STATE OF KERALA
            REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,
            PIN - 682031
            SR.PP. SMT. PUSHPALATHA M.K.



     THIS     BAIL   APPLICATION   HAVING    COME   UP   FOR   ADMISSION   ON
30.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                               2024:KER:80895
BAIL APPL. NO. 8627 OF 2024

                              2



          Dated this the 30th day of October, 2024

                        ORDER

The application is filed under Section 482 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 ( for short,

BNSS), for an order of pre-arrest bail.

2. The petitioner is the second accused in Crime

No.1038/2024 of the Kannur Town Police Station, Kannur,

which is registered against first accused and four

identifiable persons for allegedly committing the offences

punishable under Sections 115, 118(1), 118(2) r/w

Section 3(5) of the Bharatiya Nyaya Sanhita, 2023.

3. The prosecution case, in brief, is that: on

20.09.2024, at around 00:00 hours, the accused, in

furtherance of their common intention, had wrongfully

restrained the first informant and one among the four

accused persons had assaulted the de facto complainant

and his three friends named Hari, Unnikrishnan and

Gafoor, and the first informant suffered a fracture on his 2024:KER:80895 BAIL APPL. NO. 8627 OF 2024

left hand. Thus, the accused have committed the above

offences.

4. Heard; Sri. K.K.Dheerendrakrishnan, the

learned counsel appearing for the petitioner and

Smt.Pushpalatha M.K. the learned Senior Public

Prosecutor.

5. The learned counsel for the petitioner

vehemently argued that the petitioner is totally innocent

of the accusations levelled against him. A reading of the

First Information Report as well as the First Information

Statement of the first informant clearly reveals that the

specific overt act is attributed against the first accused.

On the said night, the petitioner was brutally assaulted

by the first informant and his friends and the petitioner

was admitted in the District Hospital, Kannur at 00:00

hours, which is evidenced by Annexure II registration

card. Therefore, by no stretch of imagination can be said

that the petitioner was also present at the scene of

occurrence. The fact that the first informant was not 2024:KER:80895 BAIL APPL. NO. 8627 OF 2024

even identified by the petitioner shows that he was not

there. The petitioner is a law abiding citizen without any

criminal antecedents. The petitioner's custodial

interrogation is not necessary and no recovery is to be

effected. Hence, the application may be allowed.

6.The learned Public Prosecutor opposed the

application. She submitted that the investigation is only

at its nascent stage. If the petitioner is granted an order

of pre-arrest bail, it may hamper the investigation.

Hence, the application may be dismissed. She also made

available the Accident Register-cum- Wound Certificate

of the first informant dated 20.9.2024 issued by the

District Hospital, Kannur, to substantiate that the first

informant had suffered a fracture of his left hand. She

prayed that the application may be dismissed.

7. The prosecution allegation is that, first

accused along with four other persons had wrongfully

restrained the first informant and his friends and one

among them assaulted the first informant with an iron 2024:KER:80895 BAIL APPL. NO. 8627 OF 2024

rod, and he suffered a fracture of his left hand. Prima

facie, the allegations seem to be probable in view of the

Accident Register-cum-Wound Certificate referred to

above, which shows that the first informant suffered a

fracture of his left hand.

8. Undoubtedly, the first informant has not named

the petitioner as an accused. Although, they seem to

known each other and there are certain disputes pending

between them.

9. The petitioner has a case that he was assaulted

by the first informant and was treated at the District

Hospital, Kannur on the very same morning at 00:00

hours. The said assertion also stands substantiated by

Annexure II registration card, which shows that

petitioner was treated at the said hospital just prior to

the incident in the present FIR. Whether the petitioner

was at the hospital or he had attacked the first informant

is a matter to be investigated and decided at the time of

trial. Nevertheless, since the first informant has only 2024:KER:80895 BAIL APPL. NO. 8627 OF 2024

identified the first accused and the petitioner is not even

named in the FIR, I am of the view that the petitioner

has made out valid grounds to invoke the discretionary

jurisdiction of this Court under Section 482 of the BNSS.

Hence, I hold that the petitioner is entitled to an order of

pre-arrest bail; subject to the condition that the

petitioner co-operates with the Investigating Officer.

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 arrest of the petitioner, 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;