Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 22ND DAY OF AUGUST 2023 / 31ST SRAVANA, 1945 BAIL APPL. NO. 3863 OF 2023 CRIME NO.1015/2022 OF INFOPARK POLICE STATION, ERNAKULAM PETITIONER/10TH ACCUSED: RISHAD.K.M AGED 38 YEARS S/O MOHAMMED SHAREEF, RAZARISH VILLA, ELATHUNAGR, PALLURUTHY, ERNAKULAM, PIN - 682 006. BY ADVS. R.ROHITH HARISHMA P. THAMPI
RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 22.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A. No. 3863/2023 :2:
A. BADHARUDEEN, J.
--------------------------------------------------------- B.A. No. 3863 of 2023 --------------------------------------------------------- Dated this the 22nd day of August, 2023.
ORDER
This is the second application for anticipatory bail filed by the 10th accused in Crime No. 1015 of 2022 of Infopark Police Station, Ernakulam District, for offences punishable under Sections 452, 324, 384, 395, 427 and 506 of IPC.
2. Earlier, this Court, as per Annexure A3 common order in B.A
Nos. 928, 1004, 1140 and 1161 of 2023 dated 17.03.2023, dismissed the application for anticipatory bail filed by the petitioner as under: “In these petitions, the following accused seek the relief of pre-arrest bail.
1. B.A.No.928 of 2023-A1,
2. B.A.No.1004 of 203-A2,
3. B.A.No.1140 of 2023 - A3, A12, A10 and A5,
4. B.A.No.1161 of 2023 -A9 The petitioners herein are accused as referred herein above in crime No.1015/2020 of Infopark Police Station, Ernakulam.
2. Heard the learned counsel for the respective petitioners, the learned counsel for the defacto complainant and the learned Public Prosecutor.
3. I have perused the case diary as such and the B.A. No. 3863/2023 :3: documents placed by the learned counsel for the respective petitioners and the defacto complainant.
4. Shown off unnecessary averments, the prosecution
allegation is that, at about 1.15 pm on 23.12.2022, the accused herein criminally trespassed upon the office of the defacto complainant where ‘Brawny Brute' Family Studio Health and Bautique Clinic' has been functioning and thereafter, the first accused beat the defacto complainant and his staff by using a hammer and a wooden stick and thereby the first accused forcefully obtained a cheque signed by the defacto complainant. The further allegation is that the accused herein robbed away the files, laptop, treatment equipment, i20 car bearing registration No.KL- 40-L 3141, ATM card, gold, dress, speaker to the tune of Rs.14,80,000/-. The further allegation is that they have poured salt at the office of the defacto complainant so as to make it appear the same as MDMA along with injections and narcotic drugs and thereafter taken the photographs of the defacto complainant along with those items with intimidation that those photographs would be used to show the defacto complainant as a person engaged in sale of the Narcotic Drugs and Psychotropic Substances. It is alleged further that they beat the defacto complainant and thereby the defacto complainant sustained injuries on his face and eyes. According to the defacto complainant/prosecution, the accused herein was there at the office at 6 pm and all the accused jointly involved in this crime. Pursuant to forwarding of a complaint lodged by the defacto complainant before the Deputy Commissioner of Police as
B.A. No. 3863/2023 :4: on 24.12.2022, crime was registered at 11.35 pm on 23.12.2022 alleging that the accused herein committed offences punishable under Sections 452, 324, 328, 395, 427 and 506(ii) read with Section 212 of IPC.
5. Adv. P.Vijaya Bhanu, the learned Senior counsel
appearing for the 1st accused would submit that the petitioner/1st accused is innocent and the entire allegations are false. According to the learned counsel, the defacto complainant owed amount to the petitioner and for which he had issued Annexure A3 cheque bearing date 05.01.2023 for Rs.8,00,000/- on 15.07.2022 and thereafter, a false case is foisted to contend that the said cheque was robbed away by the petitioner/1st accused herein, after threatening and intimidating him with a view to avoid payment covered by the cheque. It is also argued that even though the prosecution alleges presence of 30 persons at a prime locality in Kakkanadu Seaport-Airport road where ‘Brawny Brute' Family Studio Health and Bautique Clinic' has been functioning, the police could not even find a CCTV footage of the gathering and involvement of 30 persons in this occurrence and the same shows the falsity of the case. It is submitted by the learned counsel for the petitioner further that the second petitioner Salahudeen is a political leader and the Local Committee member of CPI(M) Party and he intervened in this matter as a mediator to settle the financial dispute in between the first accused and the defacto complainant and the occurrence as alleged by the prosecution is absolute falsity, for which no materials could be gathered. On this premise, the
B.A. No. 3863/2023 :5: learned counsel for the petitioner/1st accused would submit that the petitioner is liable to be released on anticipatory bail and he is ready to be abide by any conditions and the recovery, if any, can be effected while he will be on deemed custody of the Police after his surrender, if such a direction is given.
6. Adv. S.Rajeev, the learned counsel appearing for
the second accused, Sri.Salahudheen, also highlighted the absolute innocence of the second accused in this matter. According to the learned counsel, the second accused is a person with good track records as a politician and he never involved in this crime and his role is that of a mediator to settle the financial dispute in between the defacto complainant and the first accused, and the entire allegations are false. The learned counsel also offered co- operation in the matter of investigation in tune with the argument advanced by the learned Sr. counsel Adv.P.Vijaya Bhanu.
7. Adv.Rajasimhan appearing for the other petitioners herein also shared the same argument.
8. It is submitted by Adv.S.Rajeev further that the
defacto complainant is a person engaged in many illegal activities and he is in the habit of obtaining money by illegal means. He has placed reliance on Annexure A5, copy of complaint lodged by one A.R.Rekha and Sarath, Alinkal House, Vaduthala dated 28.11.2022 before the Assistant Police Commissioner, Thrikkakara, acknowledged by the Assistant Commissioner as per receipt dated 28.11.2022 at 5:02:23 pm to substantiate the said fact. The
B.A. No. 3863/2023 :6:
learned counsel narrated the complaint pointing out the nature of deals at the instance of the petitioner and demand of money from A.R.Rekha and Sarath by coercion. The learned counsel pointed out this aspect to contend that the petitioner is a person, who would go to any extent to achieve ulterior motives and therefore, the prosecution case at his instance that was lodged on the second day of occurrence, after narrating the same as an accident, after initial stage, cannot be believed.
9. The learned counsel appearing for the defacto
complainant filed a detailed objection supported by certain documents. In the said objection, the defacto complainant precisely narrated the events, including procurement of cheque by the first accused from the defacto complainant to the tune of Rs.8,00,000/-. The learned counsel also placed receipt showing lodging of complaint as on 24.12.2022 at 09:05:46 pm before the City Police which led to registration of this FIR. The learned counsel also placed GPS route map picture to contend that i120 car bearing registration No.KL-40- L 3141 was recovered from accused No.4 by the Investigating Officer.
10. The learned Public Prosecutor also supported the
prosecution case based on the materials available in the case diary. The learned Public Prosecutor given heavy reliance on the additional statement given by the defacto complainant reiterating the occurrence and in the said statement, he disclosed that the gold robbed away by the accused would come to 10 ¾ and the amount involved would come to Rs.43,00,000/-. The learned Public
B.A. No. 3863/2023 :7:
Prosecutor also highlighted Gunda activities in the city and involvement of accused Nos.7 and 8 in crime No.83/2023 of Thrikkakara police station involving offences punishable under Sections 143, 147, 148, 323, 324 and 326 read with Section 149 of IPC. But no criminal antecedents reported in so far as the other accused persons are concerned.
11. While allaying the controversy by addressing the
arguments advanced by the respective counsel, including the learned Public Prosecutor, in this case, the occurrence was at 1.15 pm on 23.12.2022 and the place of occurrence is ‘Brawny Brute' Family Studio Health and Bautique Clinic' run by the defacto complainant.
12. It is zealously argued by the learned counsel for
the defacto complainant and the learned Public Prosecutor that the defacto complainant sustained serious injuries, as a result of attack at the instance of the petitioners and for which they have given emphasis to the medical documents forming part of the case diary.
13. On perusal of the wound certificate prepared at
Sunrise Hospital, Kakkanadu at 6.26 pm on 23.12.2022, the one and only injury noted by clinical examination is injury peri orbital area. As per the observation in this wound certificate, even though CT scan examination was advised, the defacto complainant did not heed the same and accordingly, it was stated in the wound certificate that “CT Head (not willing)”. It is to be noted that thereafter, the defacto complainant met Doctor at MAJ Hospital, Edapally on 25.12.2022 in the morning and CT Scan examination in the face of defacto complainant was done.
B.A. No. 3863/2023 :8: The impression in the CT Scan report are as under:
1. Possible undisplaced fractures noted in roofmedial wall of right orbit.
2. Pneumo-orbit noted on right
3. Polypoidal mucosal thickening noted in bilateral maxillary sinus Based on the CT Scan study, undisplaced fractures noted in roof-medial wall of right orbit was diagnosed.
14. The learned counsel for the defacto complainant
would submit that the defacto complainant sustained serious injuries including fracture as noted in the wound certificate and CT Scan taken on 25.12.2022. The learned counsel for the defacto complainant placed photographs alleging that of the defacto complainant showing blood on the left ear and left eye of the defacto complainant to show the seriousness of the injuries sustained to the defacto complainant. The learned counsel for the defacto complainant also argued that since the articles taken away are required to be recovered in the matter, arrest, custodial interrogation and recovery of weapon are essential part of the investigation and in such a case, grant of anticipatory bail would spoil the investigation.
15. Here, the prosecution allegation is that at about
1.15 pm on 23.12.2022, the accused herein criminally trespassed upon the office of the defacto complainant where ‘Brawny Brute' Family Studio Health and Bautique Clinic' has been functioning and thereafter, the first accused beat the defacto complainant and his staff by using a hammer and a wooden stick and thereby forcefully
B.A. No. 3863/2023 :9:
obtained a cheque signed by the defacto complainant. The further allegation is that the accused herein robbed away the files, laptop, treatment equipment, i20 car bearing registration No.KL-40-L 3141, ATM card, gold, dress, speaker to the tune of Rs.14,80,000/-. The further allegation is that they have poured salt at the office of the defacto complainant so as to make it appear the same as MDMA along with injections and narcotic drugs and thereafter taken the photographs of the defacto complainant along with those items with intimidation that those photographs will be used to show the defacto complainant as a person engaged in the sale of the Narcotic Drugs and Psychotropic Substances. It is alleged further that they beat the defacto complainant and thereby the defacto complainant sustained injuries on his face and eyes. According to the defacto complainant/prosecution, the accused herein was there at the office at 6 pm and all the accused jointly involved in this crime. Pursuant to forwarding of a complaint lodged by the defacto complainant before the Deputy Commissioner of Police as on 24.12.2022, crime was registered at 11.35 pm on 23.12.2022 alleging that the accused herein committed offences punishable under Sections 452, 324, 328, 395, 427 and 506(ii) read with Section 212 of IPC.
16. It is true that as per the ratio in A.I.R. 2020 S.C.
831 [Sushila Aggarwal & others v. State (NCT of Delhi) and ors.] and AIR 1980 SC 1632 [Gurbaksh Singh Sibbia & Others v. State of Punjab], 'deemed custody' for the purpose of investigation is permissible. In the case at hand, B.A. No. 3863/2023 : 10 :
such a course of action found to be insufficient to effect recovery since the prosecution allegation is to the effect that many articles herein above referred were taken away on the date of occurrence. If so, anticipatory bail plea at the instance of the petitioners cannot be considered. Therefore, they shall concede the jurisdiction of the Investigating Officer. In the result, these bail applications stand dismissed.”
3. While pressing the relief of anticipatory bail for the second
time after disposal of the anticipatory bail application as early as on 17.03.2023, it is argued by the learned counsel for the petitioner that there are change in circumstances to canvass anticipatory bail and he pressed ground No. 9 in this application stating thus:
“9. The substantial change in the case after the dismissal of earlier bail application is that all the accused in this case granted regular bail after their arrest. Till that time, no identification parade was conducted by the police. Therefore, the allegation of forty identifiable persons were involved in this case is a cooked-up story put forwarded by the de facto complainant and the police.”
4. As far as the legal position highlighted by the learned counsel
for the petitioner as to the maintainability of second bail application in changed circumstances, there is no dispute. However, the change in circumstances argued by the learned counsel for the petitioner in fact B.A. No. 3863/2023 : 11 : is not change in circumstances, since arrest and subsequent release of other accused after keeping their custody for the purpose of investigation is not a change in circumstances to consider the anticipatory bail application for the second time. This Court dismissed the earlier bail application on a finding that the arrest and custodial interrogation of the petitioner are necessary to effectuate meaningful investigation. Since the allegations are very serious, this application is found to be meritless and the same is dismissed.
5. However, the attitude of the police in not arresting the
petitioner even after the dismissal of the bail application as early as on 17.03.2023 is noted with extreme displeasure and the integrity of the Investigating Officer in this regard is doubtful. Therefore, the petitioner is directed to surrender before the Investigating Officer within a period of seven days from today, failing which the police is directed to proceed with the arrest of the petitioner for the purpose of investigation forthwith, without fail. sd/- A. BADHARUDEEN, JUDGE Rv