Sadik.K.K vs State Of Kerala

C.S.Dias, J

The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the first accused in Crime No.1334/2023 of the Tanur Police Station, Malappuram, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 341, 323, 324 and 308 r/w Section 34 of the Indian Penal Code ( IPC).

The essence of the prosecution case, is that: on 22.12.2023 at around 19 hours, while the de facto complainant was working as a rescue guard in an enforcement boat, the accused in furtherance of their common intention along with some identifiable persons, wrongfully restrained the de facto complainant and his friends and the first accused voluntarily caused hurt to the de facto complainant by beating him on his face with an iron rod and, thereafter, attempted to hit on his head. Since the de facto complainant had evaded the attack, he did not lose his life. Thus, the accused have committed the above offences.

Heard Sri. J.R. Prem Navaz, learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public  Prosecutor appearing  for the respondent.

Learned counsel appearing for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. He has been falsely implicated in the crime. Section 308 of IPC has been deliberately incorporated for the purpose of denying bail to the petitioner. Even though the petitioner moved an application before the Court of Session, the same has been rejected by Annexure A2 order. The petitioner has been in judicial custody since 17.1.2024. The investigation in the case is practically complete and recovery has been effected. Hence, the application may be allowed.

The learned Public Prosecutor opposed the application. She contended that there is a specific overt act alleged against the petitioner. The petitioner is a person with criminal antecedents. He is involved in criminal cases for committing offences under the IPC and NDPS Act. She made available the Accident Register-cum-wound Certificate of the victim dated 22.12.2023 issued by the District Hospital, Tirur. She submitted that the investigation is still in progress. Therefore, the application may be dismissed.

On going through the materials, it is seen that the predicate offence is under Section 308 of IPC. On an appreciation of the Accident Register-cum- Wound Certificate issued by the District Taluk Hospital, Tirur, of the victim, it is seen that the victim had only suffered a minor abrasion and edema on the right side of his face. The petitioner has been in judicial custody since 17.1.2024. The learned Sessions Judge, Majeri, has dismissed the application, principally on the ground that the investigation in the case was at the preliminary stage and recovery was not effected.

On going through the case diary, it is seen that the petitioner is an accused in Crime No.1226/2021 for allegedly committing the predicate offence under Section 326 of the IPC and Crime No.1231/2022 for allegedly committing an offence under Section 27(b) of the NDPS Act.

It is well settled that merely because an applicant has some antecedents, the same shall not be treated as a ground to deny him bail. Moreover, the second crime is for possession of a small quantity of contraband.

On a consideration of the facts, the materials placed on record, the rival submissions made across the Bar, and the findings rendered above, especially taking into account the fact that the petitioner has been in judicial custody since 17.1.2024, the investigation in the case is at its fag end, and recovery has been effected,  I am of the definite view that the petitioner’s continued detention is unnecessary.

In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions:

(i) The petitioner shall 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 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.

(vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.