Ker HC | Bail granted in absence of allegations of an overt act against the accused who was a member of unlawful assembly

Kerala High Court: Raja Vijayaraghavan V., J. allowed this bail application registered under Section 439 of the Code of Criminal Procedure, 1973. 

The applicant of this application is the accused 7 of the Crime No. 445 of 2019 of the Shornur Police Station registered under Sections 143, 144, 147, 148, 324, 326, 307 and 447 read with Section 149 of the Penal Code. 

The facts of the case are that on 22-11-2019, all the 7 accused’s who were named in the First Information Report along with 3 others, attacked the complainant and his friend Abdul Rahman with swords and weapons, causing him serious injuries. 

The counsel for the applicant/accused, Nireesh Mathew, contended that the accused 7 did not hurt the complainant. The counsel contended that the injuries were made by the rest of the accused. He contended that the accused is only liable for being a member of unlawful assembly and as such guilty under Section 149 of the Penal Code.

Section 149 of the IPC states that if an offence is committed by any member of an unlawful assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. in. The counsel would contend that the injuries were inflicted by the rest of the accused and the applicant herein was roped in with the aid of Section 149 IPC.

The counsel for the complainant/respondent, Remesh Chand, Public Prosecutor, contended that the wound certificate shows serious injuries of the informant and his friend. 

The Court, after listening to the counsels of both the parties, held that the first informant has no case and that the applicant was not armed with a weapon or anything. Neither did the applicant induced any serious injury to the complainant. On this basis, the Court allowed this application of bail on executing a personal bond of Rs 1,00,000 with two other solvent sureties each for the sum as per the satisfaction of the Court having jurisdiction. Some other conditions were also imposed-

  1. the applicant has to appear before the Investigating Officer on all the Mondays between 10 a.m. and 1 p.m. for a period of three months or till the final report is laid; whichever was earlier.
  2. the accused should not intimidate or attempt to influence the witnesses, nor should he tamper with the evidences
  3. while the accused is on bail, he should not commit any offence.

In case of violation, the jurisdictional Court shall be empowered to consider the application for cancellation.[Vishnu Prasad v. State of Kerala,  2019 SCC OnLine Ker 5349, decided on 12-12-2019]

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