Kerala High Court
Shahanavas Madiyan Kunnu vs State Of Kerala on 26 March, 2021
Author: Ashok Menon
Bench: Ashok Menon
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ASHOK MENON
FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943
Bail Appl..No.2458 OF 2021
CRIME NO.217/2021 OF Hosdurg Police Station , Kasargod
PETITIONER/S:
SHAHANAVAS MADIYAN KUNNU
AGED 38 YEARS
SON OF ABDUL RAHMAN MANIKOTH,
RESIDING AT THAVAKKAL MANZIL,
MADIYAN, AJANUR VILLAGE AND POST,
KASARAGOD DISTRICT.
671316
BY ADVS.
SRI.T.MADHU
SMT.C.R.SARADAMANI
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA
682031
2 THE STATION HOUSE OFFICER
HOSDURG POLICE STATION,
KASARAGOD DISTRICT.
671315
R1 BY PUBLIC PROSECUTOR
OTHER PRESENT:
SMT.V.SREEJA-PP
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
26.03.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Bail Appl..No.2458 OF 2021 2
O R D E R
Dated this the 26th day of March 2021 Application for anticipatory bail under Section 438 of Cr.P.C. The applicant is the first accused in Crime No.217/2021 of Hosdurg Police Station, Kasargod for having allegedly committed an offence punishable under Section 326 r/w Section 34 of IPC.
2. The prosecution case, in brief, is that on 1.3.2021 at about 9.30 p.m. while the de facto complainant was travelling on his motorcycle bearing registration No. KL 60D 3573 along the Manikoth-Kotta road in Ajanur Village, accused Nos.2 to 5 under abetment of the applicant and as a result of the conspiracy that was hatched by the applicant and other accused in furtherance of common intention due to political reasons abetted the rest of the accused to pelt stones and mud on the de facto complainant as a result of which, he lost his control and fell down from the motorcycle and sustained grievous hurt on his leg.
3. The applicant states that the allegations are all untrue. He was not present at the scene of occurrence and that he did not induce others to pelt stones on the de facto complainant as alleged. Therefore, he seeks pre-arrest bail. Bail Appl..No.2458 OF 2021 3
4. Heard the learned counsel for the applicant and the learned Public Prosecutor.
5. Even though there is an allegation that the applicant had abetted the other accused to commit the offence and that a conspiracy was hatched, neither offence under Section 109 nor under Section 120B IPC have been incorporated. The offence alleged in the FIR is only under Section 326 r/w Section 34 of IPC. Since the applicant was not present at the scene of occurrence, an offence under Section 34 cannot be attracted. Moreover, there is no incorporation of abetment or conspiracy in the FIR.
6. The learned Public Prosecutor submits that applicant has criminal antecedents. He was involved in two other crimes in the year 2006 and 2017 for offences punishable under Sections 341, 353 and 308 of IPC. Since the applicant's presence has not been stated in the FI statement and moreover, the offences of abetment and conspiracy are not alleged in the FIR and moreover no deadly weapon sufficient to cause the death of the de facto complainant has been used by the assailants. It is doubtful whether an offence under Section 326 itself would lie in this crime. However, I am not concluding the prosecution case ad leave it for the trial court to decide. But the applicant is Bail Appl..No.2458 OF 2021 4 definitely entitled to the remedy of pre-arrest bail. The application is therefore allowed. In the event of his arrest, he shall be released on bail on the execution of a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like amount to the satisfaction of the arresting officer and subject to the condition under Section 438(2) of Cr.P.C.
SD/-
ASHOK MENON
rmm JUDGE