Musthafa vs State Of Kerala

A. Badharudeen, J

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 2nd accused in Crime No.454/2023 of Ponnani Police Station, where the prosecution alleges commission of offences punishable under Sections 447, 341, 323, 324, 326, 307 and 427 r/w Section 149 of IPC.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor.

I have perused the relevant documents placed by the learned Public Prosecutor.

The prosecution case is that, at about 2.30 hours on 01.05.2023, accused Nos. 2 to 7, after sharing common objection, trespassed into the residence of the defacto complainant at Veliyancode and assaulted the defacto complainant with intention to commit murder. The defacto complainant sustained serious injuries with several fractures though he survived. On this grounds, prosecution alleges commission of offences punishable under Sections 452, 341, 323, 324, 326, 307 and 427 r/w 34 of Indian Penal Code.

The learned counsel appearing for the petitioner reiterated the contention raised earlier while considering the earlier anticipatory bail application along with accused Nos. 3 to 7.

The learned Public Prosecutor would submitted that arrest and custodial interrogation of the petitioner are necessary in a case where prosecution alleges commission of offences punishable under Sections 452, 341, 323, 324, 326, 307 and 427 r/w 34 of Indian Penal Code and the investigation being stalled since the petitioner has been absconding.

In fact, the earlier bail application has been dismissed as observed under:-

“The learned counsel for the petitioners submitted that going by the FIS itself, the allegation as to use of weapons and consequent injuries to the defacto complainant are the volition of the 1st and 2nd accused and there is no specific overt acts alleged against the other accused and the prosecution also has no case that the other accused did use any weapon to assault the defacto complainant. Therefore, the learned counsel for the petitioners pressed for grant of anticipatory bail to all the petitioners, with offer to co-operation with the investigation.

Whereas, the learned Public Prosecutor strongly opposed the anticipatory bail to the petitioners and submitted that the 1st accused already arrested and released on bail by this Court. It is also submitted that there is specific allegation against the 2nd accused, who used weapon and therefore, his arrest, custodial interrogation and recovery of weapon are necessary to effectuate the meaningful investigation and eventful prosecution. It is also submitted that since the accused herein assaulted the defacto complainant after sharing common object, other accused also do not deserve anticipatory bail.

On perusal of case diary along with the report of investigating officer, specific allegation is that the defacto complainant was assaulted by the 1st accused by using a knife and same caused injuries on his abdomen warranting 48 sutures. Similarly, there is allegation that the 2nd accused also beat the defacto complainant by using a reaper. Even though, there is general allegation against the involvement of accused Nos. 3 to 7 also, the records do not suggest use of any weapons by accused Nos. 3 to 7. The defacto complainant sustained fracture on the fourth metacarpal bone and a fracture on the fifth metacarpal bone and the same is the out come of the attack as assault at the instance of the 2nd accused.

Having read the complicity of the accused as espoused, I am of the view that arrest, custodial interrogation and recovery of the weapon at the instance of the 2nd accused are necessary to effectuate meaningful investigation and eventful prosecution. Since, the complicity of the other accused is without use of any weapons, they can be enlarged on anticipatory bail with a direction to concede the jurisdiction of the investigating officer for the purpose of interrogation to facilitate the investigation.

Accordingly, the petition stands partly allowed. Anticipatory bail plea as sought by the 1st petitioner/2nd accused stands dismissed. Petitioners 2 to 7/accused Nos. 3 to 7 are enlarged on bail, on conditions”

In this case, the overt acts at the instance of the 2nd accused are very serious and in such a case, arrest, custodial interrogation and recovery of weapons at the option of the accused are necessary. Therefore, anticipatory bail cannot be granted to destroy the investigation. Holding so, the earlier application at the instance of the petitioner was dismissed. It is noted with extreme displeasure that even after the dismissal of the anticipatory bail application, as per order dated 24.05.2023, the police did not arrest the petitioner so far in a very serious case, and the same shadows doubt regarding the integrity and fairness of the Investigating Officer in the matter of investigation.

Since, arrest and custodial interrogation of the petitioner are absolutely necessary in this case and this is not a case of anticipatory bail. Therefore the second application for anticipatory bail must fail. Accordingly, the same stands dismissed.

The petitioner is directed to surrender before the Investigating Officer within a period of three days from today, failing which, the Investigating Officer is directed to proceed with the arrest of the petitioner for the purpose of investigation without fail, in accordance with law.