Ali Askar And Ors vs State Of Kerala And Anr

This is an application for anticipatory bail under Section 438 of Cr.P.C.

The applicants are accused 1 to 3 in Crime No.688/2020 of Tanur Police Station for having allegedly committed the offences punishable under

Sections 143, 147, 148, 341, 323, 324, 308 and 326 read with Section 149 of the I.P.C.

The prosecution case, in brief, is that on 22.09.2020 at about 11.00 AM due to the previous enmity with the de facto complainant, who was

allegedly running an ice plant without any proper licence and was polluting the locality, which was raised as an issue in the local body of the Tanur

Municipality. Ignoring those objections raised by the persons including the applicants, in the locality, the de facto complainant was continuing with the

renovation work. Therefore, the applicants formed an unlawful assembly and in the prosecution of the common object of the said unlawful assembly,

they committed riot, armed with dangerous weapons like an iron pipe and rod, rafters, etc. and assaulted the de facto complainant after wrongfully

restraining him with the aforesaid dangerous weapons and caused a fracture to his right shoulder, and thus, attempted to commit culpable homicide.

The applicants submit that they are all poor fishermen living in the locality and the de facto complainant was blatantly infringing the laws and

proceeded with the renovation of the ice plant against which the applicants and several others have opposed and Annexure-1 decision was also taken

by Tanur Municipality deprecating the act of the de facto complainant in violating the rules. Therefore, the applicants seek anticipatory bail.

Heard the learned Counsel for the applicants and the learned Public Prosecutor.

The learned Public Prosecutor submits that accused 1 and 2 had used an iron rod and rafter to cause injuries to the de facto complainant and his

right shoulder was fractured. The other accused had physically manhandled the de facto complainant with hands and were members of an unlawful

assembly which was involved in causing grievous injury to the de facto complainant. The 1st accused had aimed at the head of the de facto

complainant. Because he evaded it, the blow landed on his shoulder causing the fracture of the right shoulder. As admitted, all the accused, except

accused 1 and 2, were not wielding any weapons. It is also admitted that the applicants do not have any other criminal antecedents. However, the fact

that the de- facto complaint was blatantly violating the decision taken by the Tanur Municipality was a reason good enough to form the unlawful

assembly and attack the de facto complainant. Therefore, the complicity of the applicants is well established. The 5th accused was already arrested

and released on regular bail. In view of the fact that the accused 1 and 2 were instrumental in using the weapons to cause grievous injury to the de

facto complainant, which could have even proved fatal had it landed on his head. Hence, they are definitely not entitled to the exceptional remedy of

anticipatory bail. However, the 3rd accused had only assaulted with hands and because of the fact that he has no criminal antecedents, he is entitled to

a pre-arrest bail.

In the result, the bail application is allowed in part and the applicants are directed to surrender before the investigating officer within two weeks.

After interrogation and recovery, if any, in the event of their being arrested, the 3rd applicant shall be released on bail on the execution of a bond for

Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the satisfaction of the investigating officer, and on the

following conditions:

(i) He shall not influence or intimidate witnesses or tamper with evidence;

(ii) He shall appear before the investigating officer as and when called for and shall cooperate with the investigation; and

(iii) During the bail period, he shall not get involved in any similar offences.

In case of breach of the bail conditions, the prosecution shall be at liberty to apply for cancellation of the bail before the jurisdictional court.

Applicants 1 and 2 shall be produced before the jurisdictional court, where they are at liberty to apply for regular bail, which shall be considered and

disposed of preferably on the very same day.