Shafana Shafi vs State Of Kerala

A. Badharudeen, J

This is an application for anticipatory bail filed by the petitioners who got arrayed as accused Nos. 1 to 4 in Crime No. 581/2023 of Kodungallur Police Station, Thrissur.

Heard the learned counsel for the petitioners 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 20.30 hrs on 13.04.2023, when the defacto complainant demanded accused Nos. 1 and 2, who are transgenders, accused Nos. 1 and 2 called accused Nos. 3 and 4 to the place of occurance, and attacked the defacto complainant. The specific allegation is that the 4th accused beat on the little finger of the right hand of the defacto complainant by using an iron rod and same caused fracture. On this premises, prosecution alleges commission of offences punishable under Sections 341, 323, 324, 326 and 294(b) r/w 34 of Indian Penal Code.

The learned counsel for the petitioners argued at length convince this Court that the petitioners are innocent and the defacto complainant and other person attacked transgenders and there occurred a scuffle. It is also submitted that as per Annexure – A2 FIR, counter case also has been registered against the defacto complainant. It is submitted further that the petitioners are ready to cooperate with the investigation and therefore, they may be enlarged on bail.

The learned Public Prosecutor produced the case diary along with report and opposed bail highlighting the seriousness of the offence.

On perusal of the available materials, case and counter seen registered. In the counter case only bailable offences are alleged, whereas, non bailable offence under Section 326 is alleged in this crime.

Going by the allegations, assault against the defacto complainant by two transgenders and two other persons reached the place of occurance on call by them, could be gathered. Minimizing the complicity of the other accused, the overt acts alleged against the 4th accused is that, he beat on the right little finger of the defacto complainant by using an iron rod and the same caused fracture. In the copy of the wound certificate, fracture of base of 5th meta carpal noted along with injuries on little finger and right frontal region, etc.

Since, the fracture is the contribution of the 4th accused, who alleged to have used an iron rod to beat the defacto complainant, his arrest, custodial interrogation and recovery of iron rod are absolutely necessary, to effectuate meaningful investigation and eventful prosecution. However, there is no allegation for prosecution that the other accused did use any weapons to attack the defacto complainant. In view of the above, investigation against accused Nos. 1 to 3 is possible even without custodial interrogation.

Holding so, pre-arrest bail plea at the instance of the 4th petitioner/4th accused liable to be dismissed. In the result, the petition allowed in part.

The anticipatory bail plea at the instance of the 4th petitioner/4th accused stands dismissed. The accused Nos. 1 to 3/ petitioners 1 to 3 are released on anticipatory bail on conditions. The interim bail in the matter of this matter in favour of the accused including the 4th accused stands vacated.

i. The accused Nos. 1 to 3 / petitioners 1 to 3 shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the accused Nos. 1 to 3 / petitioners 1 to 3. In the event of her arrest, the Investigating Officer shall produce the accused Nos. 1 to 3 / petitioners 1 to 3 before the jurisdictional court on the date of arrest itself.

ii. On such production, the jurisdictional court shall release the accused Nos. 1 to 3 / petitioners 1 to 3 on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only) each by themselves and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court.

iii. The accused Nos. 1 to 3 / petitioners 1 to 3 shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so.

iv. The accused Nos. 1 to 3 / petitioners 1 to 3, shall not, intimidate the witnesses or interfere with the investigation in any manner.

v. The accused Nos. 1 to 3 / petitioners 1 to 3 shall meet the Investigating Officer on all Mondays in between 10.00 am to 1.00 pm for a period of six weeks.

vi. The accused Nos. 1 to 3 / petitioners 1 to 3 shall not commit any offence during currency of this bail and any such involvement alone is a reason to cancel the bail hereby granted.