Fahad vs State Of Kerala

Mohammed Nias C.P.J

Apprehending arrest in Crime No.21 of 2020 of Pavaratty Police Station, Thrissur, registered for offences under Section 143, 147, 148, 341, 323, 324, 326, 506(ii), 302 r/w 149 of the Indian Penal Code, the accused has filed this petition seeking pre-arrest bail.

The prosecution case is that, on 18.01.2020 at about 7.30 p.m., the accused formed themselves into an unlawful assembly armed with deadly weapons like sepiumstick, in the prosecution of their common object, criminally trespassed into the deceased's wife's house situated at Mecheripady and thereafter to wreak their personal vengeance against him with respect to some property disputes, they caused hurt as well as grievous hurt to him by beating him on the head. While the defacto complainant was undergoing treatment, he succumbed to death on 24.01.2020. Pavaratty police initially registered Crime No.21/2020 against the accused persons, including the petitioner herein, for the offences under Section 143, 147, 148, 341, 323, 324, 326, 506(ii), r/w 149 of the IPC.

The learned counsel appearing for the petitioner and the learned Public Prosecutor, who opposed the bail application, were heard.

The learned counsel for the petitioner submits that the petitioner is liable to be granted an anticipatory bail since the petitioner was very much available at the time when the investigation of the case was going on and an absconding charge was filed implying that the investigation even as against the petitioner is concluded and in such circumstances, the learned counsel submits that the petitioner is entitled to an order of anticipatory bail. In support of his contention, he relied on the judgments in Siddharth v. State of Uttarpradesh [LAWS(SC)2021 8 39] and the order in Criminal Appeal No.729 of 2021 (arising out of SLP(Crl)No.5234 of 2021). He also argues on the basis of Annexure A3 order of this Court in Crl. M.C.No.1661 of 2021 dated 20.9.2021, in a case where the 6th accused, who had responded to a summons issued, was enlarged on bail. A request was made on the prosecution's side to cancel his bail on the grounds that a further investigation is warranted. The trial court had cancelled the bail, which was reversed in Annexure A3 order. Petitioner claims parity with the said accused. Learned counsel also raised an apprehension that the petitioner would be remanded to judicial custody as a non-bailable warrant was already issued.

The learned Public Prosecutor, while opposing the bail application, submits that the accused had absconded and was involved in a heinous crime, and therefore, he will adversely influence the trial if enlarged on bail.

Learned counsel for the petitioner would assert that the petitioner was very much available at the time of the investigation. However, this is disputed by the learned Public Prosecutor, contending that he was absconding and, therefore, cannot claim parity with the accused whose case was considered in Annexure A3 order as he had responded to the summons issued by the Court. The Court concerned is best equipped to decide these disputes. As regards the apprehension that since the petitioner was issued a non-bailable warrant, he will be remanded to judicial custody, I am not in a position to assume that the learned Judge who considers the bail application is unaware of the dictum laid down by this Court in Vineeth Somarajan@ Ambadi v. State of Kerala and another [2009(3) KHC 471] while dealing with a similar apprehension.

Under the above circumstances, I deem it appropriate to direct the petitioner to approach the court concerned seeking for recalling of the warrant and bail within three weeks from today by giving advance notice to the Public Prosecutor, in which even the Court below will pass appropriate orders taking into account the facts and circumstances of the case narrated. To enable the petitioner to do the same, no coercive steps shall be taken against the petitioner until he moves the court below with the abovementioned applications within the time granted. Needless to say, all contentions available to the petitioner are left open.