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2025 DIGILAW 1501 (KER)

Naseer  S/o Abdul Rahman Kunju v. State of Kerala

2025-05-28

BECHU KURIAN THOMAS

body2025
ORDER : 1. Petitioner is the fifth accused in Crime No.193 of 2025 of Thrikkunnapuzha Police Station, Alappuzha. The offences alleged against the petitioner are those under sections 189(2), 191(2), 191(3), 190, 115(2), 117(2), 118(1), 118(2), 296(b) and 109 of the Bharatiya Nyaya Sanhita , 2023 (for short ' BNS '). 2. According to the FIR, accused 1 to 7 formed themselves into an unlawful assembly armed with dangerous weapons like iron rods and sword sticks, and attacked the defacto complainant with the intention to murder him, due to the enmity for not withdrawing the case against accused 1 and 5. On 23.03.2025 at around 7.10 P.M., first accused after exhorting to murder the defacto complainant, hit him on his left ribs and when he fell down, the other accused stamped him on various parts of body and the second accused hit him with a sword on the head while the first accused abused him and again hit him with the iron rod on the head and the defacto complainant sustained fracture of the ribs and nasal bone and suffered grievous injuries and thereby the accused committed the offences alleged. 3. Sri. S. Sanal Kumar, learned Senior Counsel instructed by Adv. Amrita Arun learned Counsel for the petitioner submitted that the prosecution allegations are totally false and the petitioner has been roped in as an accused without any basis. It was also submitted that petitioner was arrested on 30.03.2025 and therefore the continued detention is unnecessary considering the nature of allegations. It was further pointed out that the petitioner's wrist has been partially amputated and also that he is suffering from various illnesses and hence he may be released on bail. 4. Sri. K.A. Noushad, the learned Public Prosecutor on the other hand submitted that the petitioner is involved in a serious crime and that considering the nature of allegations, bail ought not to be granted. 5. Sri. B. Pramod, the learned counsel for the defacto complainant, who got himself impleaded in the case, submitted that the defacto complainant was brutally assaulted for having filed a case against petitioner's father and that he had suffered serious injuries. It was also pointed out that petitioner had, immediately on his arrest, got himself admitted as an inpatient in the Medical College Hospital without any basis and continued there till recently and has managed to avoid detention under one pretext or the other. It was also pointed out that petitioner had, immediately on his arrest, got himself admitted as an inpatient in the Medical College Hospital without any basis and continued there till recently and has managed to avoid detention under one pretext or the other. 6. I have considered the rival contentions. 7. When the matter came up for consideration, it was submitted that petitioner was in the hospital from the date of his remand without any basis. Hence this Court by an order dated 22.05.2024 directed a report to be submitted regarding the reason why the petitioner remained in the hospital for long despite his remand to judicial custody. Reference was made to the decision in Anand Kumar K.N. v. State of Kerala, 2025 KHC OnLine 433 . 8. Pursuant to the above direction, a report has been handed over across the Bar by the learned Public Prosecutor. A perusal of the report reveals that on 19.05.2025 the Medical Board was constituted and since it was found that the petitioner has to be discharged, he was discharged and sent to jail. Thus it is evident that despite the petitioner having been remanded on 30.03.2025, he eluded jail until 19.05.2025. In effect, petitioner has been in custody only for the last 7 days. 9. The petitioner and other accused are alleged to have brutally assaulted the defacto complainant. The complaint filed by the defacto complainant specifically refers to the involvement of the petitioner. Serious injuries have been inflicted on the injured who sustained two fractures on his ribs as well as a fracture on the nasal bone, indicating that he was assaulted brutally and as alleged in the FIR. Petitioner's presence at the scene of occurrence is specifically noted in the complaint. The report of the police handed over by the Prosecutor indicates that the injury on the nasal bone was inflicted by the petitioner. The injuries inflicted are grievous in nature. 10. Having regard to the seriousness of the allegations and the severity of the punishment and the nature of injuries inflicted, I am of the view that this is not a fit case where the petitioner could be released on bail at this juncture. 11. The injuries inflicted are grievous in nature. 10. Having regard to the seriousness of the allegations and the severity of the punishment and the nature of injuries inflicted, I am of the view that this is not a fit case where the petitioner could be released on bail at this juncture. 11. In this context it is apposite to mention that though the learned Senior Counsel contended that the petitioner was also injured as evident from a crime registered as FIR No.194 of 2025, no serious injuries are noted and that is a matter to be investigated. wherein the defacto complainant in that case is alleged to have assaulted the petitioner therein and others, and the case and counter case ought to enable this Court to release the petitioner on bail. 12. At this juncture, this Court is compelled to observe that the accused got himself admitted in a hospital from the date of remand and continued there till 19- 05-2025 i.e. for about 49 days. No serious medical condition is identified from the medical report. Such practices are to be deprecated and hospitals or medical doctors ought not be a part of such deliberate attempts of accused to hoodwink the rule of law. 13. In fact in the decision in Anand Kumar K.N. v. State of Kerala, 2025 (2) KLT 826 , a learned Single Judge of this Court had specifically observed that once a person is produced before a court after arrest, he should be sent to jail first in all circumstances except in cases where the accused is completely bedridden. The following observations from the above referred judgment are relevant: “...........Similarly, once a person is produced before a court after arrest, he should be sent to jail first in all circumstances except cases in which that person is completely bedridden. In other cases, the court which remands the accused should send the person to the jail and the jail authorities including the medical officer concerned of the jail can do the needful as far as the illness is concerned. The courts should make every endeavour to see that the prisoners are in jail and not in hospital during their remand period or when they are undergoing imprisonment. The courts should make every endeavour to see that the prisoners are in jail and not in hospital during their remand period or when they are undergoing imprisonment. Whether there is any illness or whether there is any expert medical facility is necessary, are all to be decided by the medical officer of the jail and the court need not decide the illness of an under - trial prisoner or prisoner. The court has no expertise in medical jurisprudence. There are rules and procedures, if there is any serious illness to a prisoner which cannot be treated in jail. Therefore, I make it clear that the Court while remanding the accused should send the person directly to the jail in all circumstances except the cases in which he cannot reach up to the jail because of his ailment...........” 14. The petitioner has successfully avoided being in detention at least until 19.05.2025. There is nothing on record to indicate that the doctor at the jail had ever evaluated the petitioner’s condition at any point in time or even opined that treatment cannot be provided at the jail itself for the kind of illness alleged. Though the nature of injuries and illness reflected from the medical report handed over across the Bar by the learned Public Prosecutor do not indicate any serious injury or illness, warranting treatment as an inpatient for 49 days, still petitioner successfully evaded being in jail for a long period. The said conduct reflects upon the attempts of the petitioner to evade the legal process. Further, feigning illness to remain out of jail has become a regular practice of many accused and Courts cannot be oblivious of these circumstances. 15. In the decision in Bhagavan Singh v. Dilip Kumar Alias Deepak and Another, 2023 SCC OnLine SC 1059 , the Supreme Court has observed that the severity of the crime, the nature of allegations and the apprehension of witnesses being tampered with, apart from justice being thwarted are matters that ought to be taken into reckoning, while considering the question of grant of bail. 16. In the instant case, this Court is of the view that the petitioner may, if released at this juncture, interfere or may influence the witnesses and cause prejudice to the investigation. Hence, I do not find this to be a fit case to release the petitioner on bail. 17. 16. In the instant case, this Court is of the view that the petitioner may, if released at this juncture, interfere or may influence the witnesses and cause prejudice to the investigation. Hence, I do not find this to be a fit case to release the petitioner on bail. 17. Accordingly this bail application is dismissed.