S. Ashiq vs State Of Kerala

Dr Kauser Edappagath, J

This application is filed u/s 438 of the Code of Criminal Procedure seeking pre-arrest bail.

The applicants are the accused Nos. 2 & 7 to 10 in Crime No.891/2022 of Munambam Police Station, Ernakulam. The offences alleged are punishable under Sections 143, 147, 148, 448, 341, 323, 324, 326, 427, 354, 294(b) r/w 149 of the I.P.C.

The prosecution case, in short, is that on 01/10/2022 at about 05:00 p.m., the applicants along with the remaining accused formed themselves into an unlawful assembly and in prosecution of the common object of the assembly, trespassed into the residential house of the defacto complainant, assaulted him and when the wife of the defacto complainant intervened, the 1st accused kicked her and also caught hold of her dress with the intention to outrage her modesty.

I have heard Sri.P.V.Vibin, the learned counsel for the applicants and Sri.V.S.Sreejith, the learned Public Prosecutor. Perused the case diary.

The learned counsel for the applicants submitted that the applicants are innocent and have been falsely implicated in the present case. The counsel further submitted that no materials are on record to connect the applicants with the alleged crime; hence, they are entitled to get bail. The learned Public Prosecutor, on the other hand, submitted that the alleged incident occurred as a part of the intentional criminal acts of the applicants, and if they are released on bail at this stage, it will affect the course of the investigation.

The 5th applicant is the 2nd accused. The applicants 1 to 4 are the accused Nos. 7 to 10. I went through the F.I.S. as well as the statement of the witnesses. There are no specific allegations against the accused Nos. 7 to 10, who are the applicants 1 to 4. They have not been named in the F.I.S. also. They have no criminal antecedents either. In these circumstances, I am of the view that their custodial interrogation is not necessary and they can be granted anticipatory bail. However, specific overt act has been alleged against the 2nd accused, who is the 5th applicant. It is stated that he with an iron rod hit on the head of the defacto complainant. Considering the allegations levelled against the 5th applicant, his custodial interrogation appears to be necessary and thus, he cannot be released on anticipatory bail. For these reasons, it is a fit case where pre-arrest bail can be granted to the applicants 1 to 4.

In the result, the application is allowed in part on the following conditions:-

(i) The applicants 1 to 4 shall be released on bail in the event of their arrest on executing a bond for Rs.1,00,000/-(Rupees One lakh only) each with two solvent sureties for the like sum each to the satisfaction of the arresting officer/investigating officer, as the case may be.

(ii) The applicants 1 to 4 shall fully cooperate with the investigation, including subjecting themselves to the deemed police custody for discovery, if any, as and when demanded.

(iii) The applicants 1 to 4 shall appear before the investigating officer between 10.00 a.m. and 11.00 a.m. every Saturday until further orders. They shall also appear before the investigating officer as and when required.

(iv) The applicants 1 to 4 shall not commit any offence of a like nature while on bail.

(v) The applicants 1 to 4 shall not attempt to contact any of the prosecution witnesses, directly or through any other person, or in any other way try to tamper with the evidence or influence any witnesses or other persons related to the investigation.

(vi) The applicants 1 to 4 shall not leave the State of Kerala without the permission of the trial Court.

(vii) The application, if any, for deletion/modification of bail conditions or cancellation of bail on the grounds of violating the bail conditions shall be filed at the jurisdictional court.

(viii) The prayer for anticipatory bail sought for by the 5th applicant/2nd accused is rejected.