Mohammed Ali Shihab Vs. State of Kerala - Court Judgment

SooperKanoon Citationsooperkanoon.com/1013666
CourtKerala High Court
Decided OnJul-03-2013
JudgeHONOURABLE MR. JUSTICE B.KEMAL PASHA
AppellantMohammed Ali Shihab
RespondentState of Kerala
Excerpt:
in the high court of kerala at ernakulam present: the honourable mr.justice s.s.satheesachandran wednesday, the 3rd day of july 2013 12th ashadha, 1935 bail appl..no. 4406 of 2013 () ------------------------------- crime no. 309/2013 of thamarassery police station ,kozhikode district ---------------------------------------------- petitioner/1st accused : --------------------------------------------- mohammed ali shihab, s/o. attakkoya thangal, aged 2 years, ottamaliyekkal house, pandikkad amsom, desom, pandikkad p.o., malappuram district-676 521. by adv. sri.k.k.jayaraj nambiar respondent/complainant : ------------------------------------------------- state of kerala, (rep. by the sub inspector of police, thamarassery police station-cr.no.309/2013 of thamarassery police station), represented by the state public prosecutor, high court of kerala, ernakulam.pin-682 031 by public prosecutor smt. r.rema this bail application having come up for admission on 03-07-2013,along with b.a.no.4408 of 2013.the court on the same day passed the following: sts s.s.satheesachandran, j.----------------------------------------- b.a.no.4406 & 4408 of 201.() ------------------------------------------ dated this the 3rd day of july, 2013 order ~~~~~~~ b.a.no.4406 of 2013 has been filed by the first accused in crime no.309 of 2013 of thamarassery police station. b.a.no.4408 of 2013 is by the 5th and 9th accused (a5 and a9) in the above crime. pending consideration of the applications, it is submitted, 5th accused (a5), one of the petitioners in b.a.no.4408 of 2013, was arrested by police and that petition therefore survives only with respect to the other accused (a9) in the crime.2. applications have been filed by the aforesaid accused seeking pre-arrest bail under section 438 of code of criminal procedure. the above crime, in which twelve accused persons are involved, is now under investigation for offences punishable under sections 365, 109, 324, 327, 343, 346, 347 and 364a of indian penal code, and, it was initially registered for offence punishable under section 365 of ipc.3. the crux of allegation is that the accused persons, 12 in number, abducted the de facto complainant, detained him at b.a.nos.4406 & 4408/2013 2 several places, for about eight days and tortured him. 10th accused in the case is alleged to have lost a sum of rs.1.60 crores when it was transported through his associates in a vehicle. occupants in that vehicle were assaulted with deadly weapons and the money was looted. such looting and assault occurred consequent to information alleged to have been supplied by de facto complaint and he too was benefited from the sum looted, is imputed as the motive for his abduction, detention and torture. during the course of investigation of crime, some among the accused (a4, a5, a8 and a12) were arrested. after undergoing detention for quite some time, they were ordered to be released on bail allowing their applications imposing some conditions. now two among accused, a1 and a9 in the crime, have moved the above applications seeking the discretionary relief of anticipatory bail setting forth a case that they are totally innocent and have been falsely implicated in the crime.4. i heard learned counsel for the above petitioners and also learned public prosecutor. case diary has also been produced before me by learned public prosecutor who opposed the applications contending that the materials gathered by b.a.nos.4406 & 4408/2013 3 investigating agency disclose complicity of the above petitioners in the offences imputed and their arrest and custodial interrogation is essential for a fair investigation. adverting to some of the annexures produced with the petition learned counsel for respective petitioner contended that the allegations imputed by de facto complainant are totally false. after going through the case diary with reference to the materials so far collected in investigation, i find considerable force in the submission made by learned public prosecutor that the petitioners are not entitled to the discretionary relief of anticipatory bail. materials gathered by investigating agency give enough room to suspect complicity of petitioners in the grave offences imputed of and, when that be so, the discretionary relief canvassed of cannot be extended to them. petitioners have to surrender before investigating officer and co-operate with the investigation. petitions are dismissed. s.s.satheesachandran judge ps/3/7
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 3RD DAY OF JULY 2013 12TH ASHADHA, 1935 Bail Appl..No. 4406 of 2013 () ------------------------------- CRIME NO. 309/2013 OF THAMARASSERY POLICE STATION ,KOZHIKODE DISTRICT ---------------------------------------------- PETITIONER/1ST ACCUSED : --------------------------------------------- MOHAMMED ALI SHIHAB, S/O. ATTAKKOYA THANGAL, AGED 2 YEARS, OTTAMALIYEKKAL HOUSE, PANDIKKAD AMSOM, DESOM, PANDIKKAD P.O., MALAPPURAM DISTRICT-676 521. BY ADV. SRI.K.K.JAYARAJ NAMBIAR RESPONDENT/COMPLAINANT : ------------------------------------------------- STATE OF KERALA, (REP. BY THE SUB INSPECTOR OF POLICE, THAMARASSERY POLICE STATION-CR.NO.309/2013 OF THAMARASSERY POLICE STATION), REPRESENTED BY THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.PIN-682 031 BY PUBLIC PROSECUTOR SMT. R.REMA THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03-07-2013,ALONG WITH B.A.NO.4408 OF 2013.THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts S.S.SATHEESACHANDRAN, J.

----------------------------------------- B.A.No.4406 & 4408 OF 201.() ------------------------------------------ Dated this the 3rd day of July, 2013 ORDER

~~~~~~~ B.A.No.4406 of 2013 has been filed by the first accused in Crime No.309 of 2013 of Thamarassery Police Station. B.A.No.4408 of 2013 is by the 5th and 9th accused (A5 and A9) in the above crime. Pending consideration of the applications, it is submitted, 5th accused (A5), one of the petitioners in B.A.No.4408 of 2013, was arrested by police and that petition therefore survives only with respect to the other accused (A9) in the crime.

2. Applications have been filed by the aforesaid accused seeking pre-arrest bail under Section 438 of Code of Criminal Procedure. The above crime, in which twelve accused persons are involved, is now under investigation for offences punishable under Sections 365, 109, 324, 327, 343, 346, 347 and 364A of Indian Penal Code, and, it was initially registered for offence punishable under Section 365 of IPC.

3. The crux of allegation is that the accused persons, 12 in number, abducted the de facto complainant, detained him at B.A.Nos.4406 & 4408/2013 2 several places, for about eight days and tortured him. 10th accused in the case is alleged to have lost a sum of Rs.1.60 crores when it was transported through his associates in a vehicle. Occupants in that vehicle were assaulted with deadly weapons and the money was looted. Such looting and assault occurred consequent to information alleged to have been supplied by de facto complaint and he too was benefited from the sum looted, is imputed as the motive for his abduction, detention and torture. During the course of investigation of crime, some among the accused (A4, A5, A8 and A12) were arrested. After undergoing detention for quite some time, they were ordered to be released on bail allowing their applications imposing some conditions. Now two among accused, A1 and A9 in the crime, have moved the above applications seeking the discretionary relief of anticipatory bail setting forth a case that they are totally innocent and have been falsely implicated in the crime.

4. I heard learned counsel for the above petitioners and also learned Public Prosecutor. Case Diary has also been produced before me by learned Public Prosecutor who opposed the applications contending that the materials gathered by B.A.Nos.4406 & 4408/2013 3 investigating agency disclose complicity of the above petitioners in the offences imputed and their arrest and custodial interrogation is essential for a fair investigation. Adverting to some of the annexures produced with the petition learned counsel for respective petitioner contended that the allegations imputed by de facto complainant are totally false. After going through the Case Diary with reference to the materials so far collected in investigation, I find considerable force in the submission made by learned Public Prosecutor that the petitioners are not entitled to the discretionary relief of anticipatory bail. Materials gathered by investigating agency give enough room to suspect complicity of petitioners in the grave offences imputed of and, when that be so, the discretionary relief canvassed of cannot be extended to them. Petitioners have to surrender before investigating officer and co-operate with the investigation. Petitions are dismissed. S.S.SATHEESACHANDRAN JUDGE ps/3/7