Sabith N vs State Of Kerala

A. Badharudeen, J.

This is the second application for anticipatory bail filed by the 7th accused in Crime No.627 of 2022 of Thamarassery Police Station, Kozhikode.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the relevant materials form part of the case diary, placed by the learned Public Prosecutor.

The prosecution case is that while the defacto complainant was going to his house after closing his shop at Mukkam at about 9.45 p.m on 22.10.2022, on his scooter bearing Registration No.KL 57 R 5239 and when he reached Vezhupura, a TATA Sumo bearing Registration No.KL-11-AM-9578 came from behind restrained the scooter. Thereafter, 4 persons forcefully kidnapped him and took him into the TATA Sumo car. Inside the TATA Sumo car, one more person also was sitting on the back seat. Another Swift car also followed the Sumo car along with some persons. After moving the vehicle for a while, the defacto complainant was taken in a Thar Jeep by one Ali Ubairan, who is familiar to the defacto complainant along with 3 other persons, who were not known to the petitioner. Thereafter he was taken inside the Thar Jeep, after covering his eye, to a distant place. After running for about 6 hours, he was taken to a house and removed the covering on his eyes. Thereafter they manhandled him and demanded to tell one Lijas to give money. Later it was understood that Ali Ubairan kidnapped him with intention to get money from Lijas. The further allegation is that he was dropped at a place not known to the defacto complainant after robbing Rs.7,000/- from his purse and also after taking his mobile phone worth Rs.70,000/-. This is the base on which the prosecution alleges commission of offences punishable under Sections 364(A), 395, 341, 342, 323, 120 (B) r/w 34 of the Indian Penal Code.

While pressing for anticipatory bail to the 7th accused, the learned counsel for the 7th accused argued that the 7th accused has no role in this occurrence and no specific overt act at his instance also to be read out from the prosecution records. He also submitted that in the facts of the instant case, custodial interrogation of the 7th accused is not necessary and therefore, the 7th accused is liable to be released on anticipatory bail and he is ready to abide by any condition as a pre-requisite for grant of anticipatory bail.

It is argued by the learned counsel for the petitioner that as of now there is no necessity to have custodial interrogation of the petitioner in view of the advanced stage of investigation and, therefore, the petitioner deserves anticipatory bail. Advanced stage of investigation is the change in circumstances pointed out to sustain this second application for anticipatory bail.

Whereas the learned Public Prosecutor zealously opposed the application contending that it is not in dispute that the defacto complainant was forcefully taken from Mukkam in a Sumo Jeep by accused 7 to 9. Therefore, the role of the petitioner along with other accused in this crime is well established and hence he doesn’t deserve anticipatory bail since arrest and custodial interrogation are absolutely necessary to unearth the prosecution allegation. The learned Public Prosecutor also relied on the wound certificate relating to the defacto complainant, showing multiple injuries, as the outcome of manhandling at the instance of the petitioner.

Highlighting the above facts, the learned Public Prosecutor submitted that there is no change in circumstances to consider the anticipatory bail plea at the instance of the petitioner again.

In fact, the earlier bail applications filed by accused 7 to 9 and 10 were dismissed by this Court by a well considered order in B.A.Nos.9317/2022 and and 10023/2022. In paragraphs 7 and 8 of the earlier order, this Court discussed the reasons for dismissal of anticipatory bail and the same is as under:

“ 7. On perusal of the wound certificate, 6 injuries ranging from 6X2 cm as a result of assault at the instance of 4 to 5 persons could be gathered. The prosecution allegation is that those injuries were caused by the accused in this case, after keeping the defacto complainant in illegal custody to be gathered. In the copy of 164 statement given by the defacto complainant, all these matters dealt in detail, inclusive of the role of accused Nos.7 to 10 in tune with the prosecution allegation as submitted by the learned Public Prosecutor.

The 4th accused, while he was in custody, also given statement in support of the statement of the defacto complainant identifying the petitioners herein and their role specifically. In such a case, grant of anticipatory bail cannot be considered because of the fact that the crime is very serious, where arrest, custodial interrogation and the details regarding the money and mobile phone snatched away by the accused are absolutely necessary. Therefore, these petitions cannot be allowed.”

In fact, the learned counsel for the petitioner miserably failed to point out any change in circumstances to entertain a second anticipatory bail application and advanced stage of investigation, which is objected by the learned Public Prosecutor cannot be considered as a change in circumstances. Therefore, the second application, moved without any change in circumstances, is liable to be dismissed.

It is interesting in note that the petitioner’s complicity in this matter, is well established, prima facie. Since it is alleged by the prosecution that the 7th accused Sabith.N, the 8th accused Muhammed kutty, the 9th accused Sabith Thirunilath, are the persons, who forcefully taken the defacto complainant from Mukkam in a Sumo Jeep and at this juncture the 10th accused telephoned the 4th accused to enquire where the Thar Jeep reached from his Mobile No.8714711552. Thereafter when the Thar Jeep reached near the 10th accused, the 10th accused along with 2 other persons took the defacto complainant to a house and subjected him to torture with intention to accomplish their motive. Therefore, the role of the petitioner in this crime is well established and he doesn’t deserve anticipatory bail. That is the reason why this Court initially dismissed his anticipatory bail plea, holding that his arrest, custodial interrogation and details regarding the money and mobile phone snatched away by him are absolutely necessary. Therefore, there is no reason to hold a different view and as such, the repeated anticipatory bail plea, at the instance of the petitioner will not stand and the same stands dismissed.

The petitioner is directed to surrender before the Investigating Officer, within a period of 7 days and concede the jurisdiction and on failure to do so, the police shall arrest the petitioner and proceed against him, under law, without fail.

The hesitance of the police in not arresting the petitioner, though his anticipatory bail filed earlier was dismissed on 16.03.2023, is a matter seriously noted by this Court with extreme anxiety.