IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 12^TH DAY OF APRIL 2023 / 22ND CHAITHRA, 1945 BAIL APPL. NO. 2504 OF 2023 CRIME NO.07/2023 OF FORT COCHIN POLICE STATION PETITIONERS/ACCUSED NOS.2 TO 5:

1 NISHAD AGED 43 YEARS, S/O. HUSSAIN, H. NO 2/1074, THURUTHY, FORT KOCHI, PIN - 682001

2 NIZAMUDHEEN.K.B AGED 40 YEARS, S/O. K.H. BASHEER, H. NO. 2/58 A, NEAR CUSTOMS JETTY, CALVATHY ROAD, KOCHI, PIN - 682001

3 ASHKAR AGED 50 YEARS, S/O. HUSSAIN, H. NO. 2/1074, THURUTHY, FORT KOCHI, PIN - 682001

4 HARIS AGED 47 YEARS, S/O. HUSSAIN, H. 2/1074, THURUTHY, FORT KOCHI, PIN - 682001 BY ADVS.

K.S.MADHUSOODANAN M.M.VINOD KUMAR P.K.RAKESH KUMAR K.S.MIZVER M.J.KIRANKUMAR RESPONDENTS/COMPLAINANT & FORMAL PARTY:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031

2 STATION HOUSE OFFICER FORT COCHIN POLICE STATION, FORT COCHIN, PIN - 682001 SR PP - P G MANU THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON

12.04.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

ORDER

Dated this the 12^th day of April, 2023 This is a petition filed under Section 438 of the Code of Criminal Procedure, seeking pre-arrest bail and the petitioners are accused Nos. 2 to 5 in crime No.7/2023 of Fort Cochin Police Station, Ernakulam.

2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. Perused the relevant documents including the documents placed by the learned counsel for the petitioners, excluding news paper cutting.

3. The prosecution case is that, at about 7.00 pm on

29.12.2022, the accused herein formed themselves into an unlawful assembly with knowledge that they are all members of the said assembly, armed with deadly weapons, in prosecution of their common object, assaulted the defacto complainant with intention to cause grievous hurt and also to commit dacoity. The specific allegation is that, the 4^th accused caught hold on the hands of the defacto complainant and restrained him wrongfully facilitating accused Nos. 1, 2 and 5 to assault the defacto complainant. The further allegation is that, the 2^nd accused used a wooden log and beat on the ribs of the defacto complainant. The 3^rd accused snatched away Vivo V 23E mobile phone worth Rs. 22,000/- belonged to the defacto complainant and Rs.20,000/- from his pocket. The allegation against the 5^th accused is that, he also beat on the face, chest and back of the defacto complainant after joining hands with other accused. This is the base on which the prosecution alleges commission of offences punishable under Sections 143, 147, 283, 323, 324, 326, 394 r/w 149 of IPC.

4. While pressing for grant of pre-arrest bail to the petitioners who are accused Nos. 2 to 5, the learned counsel for the petitioners would submit that, serious overt acts are alleged against the 1^st accused and he surrendered before the Police. He was subsequently released on bail. It is submitted further that, the defacto complainant who is having drug business is in enimical terms with the petitioners. In this connection, the learned counsel placed reliance on the mahazar prepared in NDPS crime No. 76/2022 by the Excise Range Office, Mattancherry, in connection with the recovery of contraband from one Shihaab. He would submit that, the defacto complainant and his friends are members of a gang who are engaged in sale of drugs and psychotropic substances and they are in enimical terms with the petitioners, since they used to oppose their drug deals. The learned counsel for the petitioners also submitted that, no serious overt acts alleged against the petitioners and they may be released on anticipatory bail.

5. Whereas the learned Public Prosecutor opposed grant of anticipatory bail on the submission that, immediately after the occurrence, the defacto complainant sought medical assistance from Gautham Hospital, Kochi and thereafter he was treated at Medical Trust Hospital, Cochin. In the discharge summery of the d