Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 29TH DAY OF JULY 2024 / 7TH SRAVANA, 1946 BAIL APPL. NO. 3658 OF 2023 CRIME NO.158/2023 OF KUNNICODE POLICE STATION, KOLLAM AGAINST THE ORDER DATED 04.03.2023 IN CRMC NO.357 OF 2023 OF DISTRICT COURT & SESSIONS COURT,KOLLAM PETITIONERS/ACCUSED NO.1 & 5: 1 RIYAS N, AGED 30 YEARS S/O.NOUSHAD, THASKAND MANZIL, AAVANEESWARAM RAILWAY STATION, KUNNICODU P.O., KOLLAM - ., PIN - 691508 2 ANAZ.A., AGED 42 YEARS S/O.ABDUL RAHIM, ANISA MANZIL, KUNNICODU P.O., KOLLAM, PIN - 691508 BY ADV K.P.MADHU RESPONDENT/STATE: STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN, PIN - 682031 BY SR.PUBLIC PROSECUTOR SRI.RENJIT GEORGE THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BAIL APPL. NO. 3658 OF 2023 2
ORDER
Dated this the 29th day of July, 2024 This is the second application for anticipatory bail, filed under Section 438 of the Code of Criminal Procedure, by the petitioners herein, who are accused Nos.1 and 5 in Crime No.158/2023 of Kunnicode police station, Kollam.
2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor.
3. I have perused the relevant documents form part of the case diary, placed by the learned Public Prosecutor.
4. The prosecution case is that, at about 1.50 hours on
30.01.2023, accused Nos.1 to 5 formed themselves into an unlawful assembly, with knowledge that they are all members of the said assembly, armed with deadly weapons, in prosecution of their common object to commit culpable homicide not amounting to murder, and then, assaulted the de facto complainant. The specific allegation is that the first accused beat on the head of the de facto BAIL APPL. NO. 3658 OF 2023 3 complainant by using a sword and when the same was restrained, the same caused injury on the left hand of the de facto complainant. The second accused caused stab injuries on the chest and abdomen of the de facto complainant by using a sword stick. Accused Nos.3 and 4 destroyed the doors as well as the windows of the house of the de facto complainant and thereby, caused loss of Rs.8,000/-. It is on this premise, the prosecution alleges commission of offences punishable under Sections 143, 147, 148, 452, 294(b), 324, 307, 427 and 149 of IPC.
5. The learned counsel for the petitioners reiterated the contentions to canvass anticipatory bail.
6. Earlier, the anticipatory bail application filed by accused Nos.1, 2, 3 and 5, was dismissed by this Court, as per Annexure A3
order in B.A.No.2354/2023, dated on 13.4.2023, holding the view
that, arrest, custodial interrogation and recovery of weapons, at the instance of the petitioners therein, are absolutely necessary. Paragraph Nos.7 and 8 of Annexure A3 order in B.A.No.2354/2023, are extracted hereunder: BAIL APPL. NO. 3658 OF 2023 4
7. On perusal of the entire records, it is true
that Annexure A5-FIR was registered alleging commission of bailable offences at 9 pm on 29.01.2023. However, in this occurrence, the allegation is that the accused, being members of an unlawful assembly, trespassed upon the residence of the defacto complainant and assaulted him with intention to commit murder. The further allegation is that they have destroyed the doors and the windows of the house of the defacto complainant and caused damages to the tune of Rs.8,000/-. Justifying the overt acts, the scene mahazar shows destruction of windows and doors, and the wound certificate shows injuries, viz.,
1. CLW over Right hand (dorsum)
2. CLW over chest
3. Abrasion over right side of abdomen
4. CLW over right palm (tendon exposed)
8. On perusal of the case records, the
allegation of house trespass at 1.50 pm by the accused could not be justified for any reason. Even if, there may an occurrence, as alleged in Annexure A5, involving bailable offences, the same is not a justification for the accused herein to commit very serious offences alleged herein. That apart, it is relevant to note that the first petitioner/fifth
BAIL APPL. NO. 3658 OF 2023 5 accused is a person having criminal antecedents and the following antecedents were reported:
1. Crime No.141/2021 of Kunnicode police station under Sections 452, 323, 324, 354, 506(ii) read with Section 34 of IPC
2. Crime No.427/2007 of Kunnicode police station under Sections 341, 328, 324 and 34 of IPC.
3. Crime No.152/2023 of Kunnicode police station under Sections 341, 323, 294(b), 506 and 34 of IPC.
7. In fact, in this second anticipatory bail application, at the
instance of the petitioners herein/accused Nos.1 and 5, as of now also, no change in circumstances pointed out, to take a different view. Therefore, this anticipatory application also must fail and the same is dismissed accordingly.
8. It is shocking to note that, even after dismissal of the
earlier anticipatory bail application filed by the petitioners herein along with accused Nos.2 and 3, as on 13.4.2023, the Investigating Officer failed to arrest the petitioners herein. The attitude of the BAIL APPL. NO. 3658 OF 2023 6 Investigating Officer, in this regard, is noted with extreme displeasure. It shows that the Investigating Officer is not properly investigating the matter. Therefore, there shall be a direction to the Investigating Officer, to effectuate investigation, as per law, without fail. Registry is directed to inform this matter to the Director General of Police, Thiruvananthapuram, for information and further steps. Sd/- A. BADHARUDEEN JUDGE Bb