IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 4^TH DAY OF SEPTEMBER 2024 / 13TH BHADRA, 1946 BAIL APPL. NO. 6128 OF 2024 CRIME NO.392/2024 OF MEPPAYUR POLICE STATION, KOZHIKODE PETITIONERS/ACCUSED:

1 KUNHABDULLA, AGED 42 YEARS S/O MUHAMMED, KIZHAKKAYIL, THIRUVALLUR, CHANIYAM KADAVU, KOZHIKODE, PIN - 673541

2 SABITH, AGED 31 YEARS S/O ASHARAF, KAVUMTHRIKKAYIL, THIRUVALLUR, CHANIYAM KADAVU, KOZHIKODE., PIN - 673541

3 AFNAS, AGED 34 YEARS S/O ABDUL KAREEM, MEPPARAMBATH, CHANIYAM KADAVU, THIRUVALLUR, KOZHIKODE, PIN - 673541

4 FAIZAL, AGED 37 YEARS S/O MOIDU, KODAKKATT, CHANIYAMKADAVU, THIRUVALLUR, KOZHIKODE, PIN - 673541

5 ABDUL SALAM. K, AGED 29 YEARS KUNDATTIL,CHANIYAM KADAVU, THIRUVALLUR, KOZHIKODE, PIN - 673541 BY ADV M.P.PRIYESHKUMAR RESPONDENT:

STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

04.09.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

Dated this the 4^th day of September, 2024

O R D E R

The application is filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ( for short, BNSS), for an order of pre-arrest bail.

2. The petitioners are the accused 1 to 5 in Crime No.392/2024 of the Meppayur Police Station, Kozhikode, which is registered against them for allegedly committing the offences punishable under Sections 110, 118 (1), 189 (2), 190, 191 (2), 191 (3) and 351 (2) of the Bharatiya Nyaya Sanhita ( for short, BNS).

3. The gist of the prosecution case is that:

on 11.07.2024, at around 20:15 hours, the accused 1 to 5, had formed themselves into an unlawful assembly, and wrongfully restrained the de facto complainant. Then, they attacked the de facto complainant with a jakki lever with an intention to cause his death. It is only because he evaded the attack, he did not lose his life. Thus, the accused have committed the above offences.

4.Heard; Sri.M.P.Priyeshkumar, the learned counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor.

5. The learned counsel for the petitioners submitted that during the pendency of the bail application, the petitioners 1, 2 and 5/accused 1, 2 and 5 were arrested and have been enlarged on bail. Therefore, the petitioners are confining the bail application only to the petitioners 3 and 4. The materials on record would show that the predicate offence under Section 110 of the BNS cannot be attributed against the petitioners. There is no cogent material to show that the petitioners have committed the offence under Section 110 of the BNS. The petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed.

6. The learned Public Prosecutor opposed the application. He submitted that during the pendency of the bail application, the petitioners 1, 2 and 5 have already been arrested. He made available the Accident Register-cum-Wound Certificate of the injured dated 01.07.2024 issued by the Medical College Hospital, Kozhikode, which shows that the injured had suffered a soft tissue injury. He stated that the petitioners’ custodial interrogation is necessary and recovery is to be effected.

7. On an evaluation of the materials on record, it can be seen that the specific overt act of committing the offence under Section 110 of the BNS is attributed against the first accused. The allegation against the petitioners 3 and 4 is that, they assisted the first accused in committing the above offences. Even otherwise, on a prima facie perusal of the treatment records of the injured, it is seen that the injured suffered a soft tissue injury. Therefore, I am of the firm view that the custodial interrogation of the petitioners 3 and 4 is not required for the full fledged investigation of the crime. Hence, I hold that the petitioners 3 and 4 are entitled to an order of pre-arrest bail;subject to the condition that the petition