IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 Bail Appl..No. 6093 of 2009() ----------------------------------------- CRIME NO.294/2009 OF BEKAL POLICE STATION. .................... PETITIONERS/ACCUSED: -------------------------------------- 1. B.M.JAMAL,AGED 44 YEARS,S/O.LATE B.M. HAMEED,PERMANENT RESIDENT OF 'PATEL MANZIL' PALLIKKARA II VILLGE, POST BEKAL, HOSDURG TALUK, KASARAGOD DIST. & NOW RESIDING AT 3/961-E, VAZHAKKALA THURUTHIPARAMBA ROAD,THRIKKAKARA P.O. ERNAKULAM. 2. B.M.SADIQUE,AGED 46 YEARS,S/O.LATE B.M.HAMEED, PERMANENT RESIDENT OF 'PATEL MANZIL' PALLIKKARA II VILLAGE, POST BEKAL, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.K.SAIDALIKUTTY SRI.LAL K.JOSEPH SRI.A.A.ZIYAD RAHMAN SMT.ANITHA M.N. (EKM) RESPONDENTS/COMPLAINANT: ------------------------------------------------ 1. THE SUB INSEPCTOR OF POLICE, BEKAL POLICE STATION, KASARAGOD DIST. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM *3. K.N. MOHAMMED JIFFRY, S/O. LATE K.N.M AHAMMED, K.N. HOUSE, ANKAKALARI, KOTTIKULAM, BAKEL. SRI. TEKCHAND, PUBLIC PROSECUTOR SRI.S.RAJEEV FOR ADDL.R3 (*ADDITIONAL 3RD RESPONDENT IS IMPLEADED AS PER THE ORDER DATED 2/12/2009 IN CRL. M.A. NO. 6104/2009) THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. --------------------------- B.A. No. 6093 of 2009 ------------------------------------ Dated this the 2nd day of December, 2009 O R D E R This is an application for anticipatory bail under Section 438 of the Code of Criminal Procedure. The petitioners are the accused persons in Crime No.294/2009 of Bekal Police Station, Kasaragod. 2. The offences alleged against the petitioners are under Sections 323, 341, 448, 326 and 506(i) of the Indian Penal Code. 3. When the Bail Application came up for hearing on 23/10/2009, the following order was passed: “After having heard the learned counsel for the petitioners and the learned Public Prosecutor, I am of the view that before disposing of the Bail Application, an opportunity should be given to the petitioners to appear before the investigating officer. Accordingly, there will be a direction to the petitioners to appear before the investigating officer at 9 A.M. on 31/10/2009 and 01/11/2009. B.A. No. 6093/ 2009 2 Post on 04/11/2009. It is submitted by the learned Public Prosecutor that the petitioners will not be arrested until further orders in connection with Crime No.294 of 2009 of Bekal Police Station.” 4. It is submitted by the learned counsel for the petitioners and the learned Public Prosecutor that the petitioners have complied with the direction contained in the order dated 23/10/2009. 5. The defacto complainant has filed Crl. M.A.No.6677/2009 with a prayer to accept the counter statement and to dismiss the Bail Application. In that Application, the de facto complainant has produced the wound certificate as well as the Medical Certificate. The wound certificate shows that the de facto complainant was admitted in the Kanhangad Nursing Home on 21/8/2009 and he was discharged on 22/8/2009. Dislocation of Proximal IP Joint of 2nd Toe (R1)is noted in the wound certificate. The defacto complainant also stated that he had filed a Writ Petition. That Writ Petition is pending, wherein he raised B.A. No. 6093/ 2009 3 certain grievances against the investigating officer. 6. The learned counsel for the petitioners referred to the detailed statement of facts in the Bail Application. It is stated that the defacto complainant is a Srilankan National. He is overstaying in India. The first petitioner was practicing as a lawyer in Hosdurg. Later, he was appointed as a Chief Executive Officer officer of the Kerala Wakf Board. It is stated that the first petitioner had occasion to give some legal advice to the defacto complainant. A case was initiated against the defacto complainant before the C.B.I. Court. The first petitioner was summoned as witness. The de facto complainant tried to persuade the petitioner not to give evidence against him. The first petitioner did not agree. He gave evidence. The defacto complainant contended that the communication between him and the first petitioner was a privileged communication. He filed a Crl.M.C. before the High Court to delete the evidence from the records. This Court did not allow that application. It is submitted that the defacto complainant has enmity towards the first petitioner on account of the above incidents. B.A. No. 6093/ 2009 4 7. It is also alleged that on the date of incident, Ramzan commenced. The first petitioner had gone to the Mosque at his native place. At that time, the defacto complainant attacked the petitioners. A case was registered against the defacto complainant and it is pending as Crime No.295/2009. 8. In the matter of granting bail, the court has to exercise the discretion. Of course, the defacto complainant is entitled to point out his grievances. In the peculiar facts and circumstances of the case, an order dated 23/10/2009 was passed directing the petitioners to appear before the investigating officer. They have complied with the directions. It is not necessary to decide the disputed question of facts in the Bail Application. It would not be proper to do so in the interests of both parties. 9. Taking into account the facts and circumstances of the case, the nature of the offence and other circumstances, I am of the view that anticipatory bail can be granted to the petitioners. There will be a direction that in the event of the arrest of the petitioners, the officer in charge of the police station shall release B.A. No. 6093/ 2009 5 them on bail on their executing bond for Rs.15,000/-each with two solvent sureties for the like amount to the satisfaction of the officer concerned, subject to the following conditions: A) The petitioners shall appear before the investigating officer for interrogation as and when required; B) The petitioners shall not try to influence the prosecution witnesses or tamper with the evidence. C) The petitioners shall not commit any offence or indulge in any prejudicial activity while on bail. D) In case of breach of any of the conditions mentioned above, the bail shall be liable to be cancelled. The Bail Application is allowed to the extent indicated above. K.T. SANKARAN, JUDGE scm