Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 25TH DAY OF SEPTEMBER 2023 / 3RD ASWINA, 1945 BAIL APPL. NO. 7874 OF 2023 PETITIONER/S: ANEESH AGED 22 YEARS AS/O VIJAYAN, PUTHENVILA VADAKKATHIL, MANAMPUZHA, KUNNATHOOR, KOLLAM DISTRICT., PIN - 691553 BY ADV P.V.DILEEP RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2 THE STATION HOUSE OFFICER ENATHU POLICE STATION, ENATHU .P.O, PATHANAMTHITTA DISTRICT,, PIN - 691526 OTHER PRESENT: SR PP K DENNY DEVASSY THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 25.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ..2..
ORDER
Dated this the 25th day of September, 2023 This is the second bail application filed under Section 438 of the Code of Criminal Procedure, seeking pre-arrest bail and the petitioner is the 4th accused in crime No.987/2022 of Enath Police Station, Pathanamthitta where the prosecution alleges commission of offences punishable under Sections 143, 147, 148, 294(b), 323, 324, 326 r/w 149 of the IPC and Section 92(a),(b) of the Right to Persons with Disabilities Act, 2016.
2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.
3. The learned counsel appearing for the petitioner reiterated the arguments advanced while considering the anticipatory bail plea at the instance of accused Nos. 1, 3 to 6 in B.A No. B.A No. 943/2023, anticipatory bail application filed by accused No. 1, 3 to 6 was dismissed by a detailed order as under:- ..3.. “This is an application for anticipatory bail filed by accused Nos.1 and 3 to 6 in crime No.987/2022 of Enathu police station, Pathanamthitta.
2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor.
3. I have perused the case diary placed by the learned Public Prosecutor, including copies of wound certificates pertaining to Vishnu and Liju Jose.
4. In nutshell, the allegation of the prosecution is that at
about 00.10 hours on 21.12.2022, the accused herein formed themselves into an unlawful assembly, with knowledge that they are members of the said assembly, armed with deadly weapons, attacked the defacto complainant and his friend- Liju Jose, with intention to cause grievous hurt, after sharing common object. Pursuant to this occurrence, crime alleging commission of offences punishable under Sections 143, 147, 148, 294(b), 323, 324, 326 and 506(ii) of IPC as well as Section 92(a) and 92(b) of the Rights of Persons with Disabilities Act, 2016 was registered.
5. While pressing for grant of anticipatory bail to the ..4..
petitioners, it is submitted that the first accused alone is the person, who used a hitting bangle to assault the defacto complainant and the same caused nasal bone fracture. It is submitted that there is no serious overt acts against the other accused and therefore, they may be released on bail and they are ready to co-operate with the investigation.
6. The learned Public Prosecutor zealously opposed grant of
anticipatory bail, on the submission that the accused herein, after forming into an unlawful assembly, manhandled the defacto complainant and his friend, one Liju Jose, who is having 40% disability. It is submitted that the defacto complainant and the above said Liju sustained injuries in this occurrence and the defacto complainant sustained comminuted fracture of nasal bone, apart from other injuries noted in the wound certificate. Highlighting custodial interrogation and recovery of weapon, the learned Public Prosecutor opposed bail.
7. Going through the recitals in the First Information Statement, it could be noticed that the first accused beat on the nose of the defacto complainant by using a hitting bangle ..5..
and all other accused assaulted the defacto complainant as well as Liju, who alleged to be a disabled person, having 40% disability as stated in the FIS itself. On perusal of the wound certificate of Vishnu, comminuted nasal bone fracture is noted, justifying commission of offence punishable under Section 326 of IPC. It is relevant to note further that in the wound certificate of Liju Jose also, contusion on the left orbit of eye and blackening on the left orbit along with injury on right knee, which was subjected to an accident before 13 years back, are noted.
8. Although it is submitted by the learned counsel for the
petitioners that even though the prosecution alleges commission of offences punishable under Sections 92(a) and 92(b) of the Rights of Persons with Disabilities Act, 2016, there is no materials in this matter to see that Liju Jose is a disabled person; in the FIS itself, the defacto complainant stated that Liju is a person with 40% disability and corresponding finding could be seen in the copy of wound certificate pertaining to Liju. Therefore, it could be gathered that the accused persons herein, after forming into an ..6..
unlawful assembly, with knowledge that they are all members of the said assembly, attacked the defacto complainant and Liju Jose, a person having 40% disability and therefore, the allegations are very serious. Attack against a disabled person, who has less chance to rescue, could not be viewed lightly. Therefore, the learned Public Prosecutor is right in arguing that arrest, custodial interrogation and recovery of weapon at the instance of the first petitioner and arrest and custodial interrogation of other petitioners are absolutely necessary in this matter. Therefore, this is not a fit case to grant anticipatory bail to the petitioners. In the result, this petition stands dismissed.” In fact, nothing substantiated to revisit the order. Therefore, this application must fail.
4. On perusal of the events, subsequent dismissal of the
earlier anticipatory bail application, as per order dated 30 th March 2023, it appears that the Investigating Officer not arrested the petitioner so far, though this court already observed that arrest and custodial interrogation of the petitioner are necessary. The ..7.. attitude of the Investigating Officer is noted with extreme displeasure and the fairness of the Investigating Officer also is in doubt.
5. Therefore, there shall be direction to the petitioner to
surrender before the Investigating Officer within a period of seven days from today, as conceded by the learned counsel appearing for the petitioner, and on failure, the Investigating Officer is directed to proceed against the petitioner in accordance with law, without fail, at any rate, within a period of seven days thereafter. In the result, this bail application stands dismissed. Sd/- A. BADHARUDEEN JUDGE
RMV TRUE COPY P.A.TO JUDGE