Disposed

Dr. P.a.Fazal Gafoor v. State of Kerala

Kerala HC1 Jun 2023Bail Appl./923/2021

Case brief

AI extract

What is this about?

The Court disposed of three connected bail applications filed under Section 438 Cr.P.C. The judge ordered disposal based on the Public Prosecutor's submission that custodial interrogation is unnecessary and that the investigating officers opine no offence is made out in certain cases. Legal contentions were left open.

What did the court decide?

Bail applications disposed of; interim order 2021 against arrest retained unless notice under Sec. 41A Cr.P.C. is served.

Dr. P.a.Fazal Gafoor Vs State of Kerala — Anticipatory Bail | Kerala HC (2023)

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BAIL APPL. Nos.908,918,923 OF 2021 1

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 1^ST DAY OF JUNE 2023 / 10TH JYAISHTA, 1945 BAIL APPL. NO. 908 OF 2021

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CRIME NO.1539/2020 OF Nadakkavu Police Station, Kozhikode

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PETITIONER/S:

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1 DR. P.A.FAZAL GAFOOR AGED 62 YEARS MANAPPAD HOUSE, PO NADAKKAVU, CALICUT, PIN - 673011 2 ABDUL RAHIM FAZAL AGED 31 YEARS MANAPPAD HOUSE, PO NADAKKAVU, CALICUT, PIN - 673011 3 PROF. P.O.J.LEBBA AGED 83 YEARS YAKKEEN HOUSE, ASRAMAM, KOLLAM DISTRICT, PIN - 691002 BY ADVS. POOJA PANKAJ SRI.P.M.RAFIQ SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.VIPIN NARAYAN SRI.V.C.SARATH SRUTHY N. BHAT

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 DR. C.V.SALIM AGED 52 YEARS

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BAIL APPL. Nos.908,918,923 OF 2021 2

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VIBGYOR, THUMBAPPADAM NILAM, WEST COAST ROAD, KANNATTIKULAM, KOLATHARA, KOZHIKODE., PIN - 673655

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BY ADVS. PUBLIC PROSECUTOR SRI.K.RAMAKUMAR (SR.) DIRECTOR GENERAL OF PROSECUTION SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.T.H.ARAVIND

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OTHER PRESENT:

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SMT.MAYA.M.N, PP

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.05.2023, ALONG WITH Bail Appl..923/2021, 918/2021, THE COURT ON 01.06.2023 DELIVERED THE FOLLOWING:

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BAIL APPL. Nos.908,918,923 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 1^ST DAY OF JUNE 2023 / 10TH JYAISHTA, 1945

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BAIL APPL. NO. 923 OF 2021

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CRIME NO.1208/2020 OF Tirur Police Station, Malappuram

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PETITIONER/S:

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1 DR. P.A.FAZAL GAFOOR AGED 62 YEARS MANAPPAD HOUSE, PO NADAKKAVU, CALICUT, PIN - 673011 2 ABDUL RAHIM FAZAL AGED 31 YEARS MANAPPAD HOUSE, PO NADAKKAVU, CALICUT, PIN - 673011 3 PROF. P.O.J LEBBA AGED 83 YEARS YAKKEEN HOUSE, ASRAMAM, KOLLAM DISTRICT, PIN - 691002 BY ADVS. POOJA PANKAJ SRI.P.M.RAFIQ SRI.P.VIJAYA BHANU (SR.) SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.VIPIN NARAYAN SRI.V.C.SARATH SRUTHY N. BHAT

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 DR. ABDUL NASAR. K

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BAIL APPL. Nos.908,918,923 OF 2021 4

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AGED 62 YEARS ANUPAMA HOUSE, POONGOTTUKULAM, TIRUR, MALAPPURAM BY ADVS. PUBLIC PROSECUTOR,SMT.MAYA M N SRI.K.RAMAKUMAR (SR.) DIRECTOR GENERAL OF PROSECUTION SRI.T.RAMPRASAD UNNI SRI.S.M.PRASANTH SRI.T.H.ARAVIND

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.05.2023, ALONG WITH Bail Appl..908/2021 AND CONNECTED CASES, THE COURT ON 01.06.2023 DELIVERED THE FOLLOWING:

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BAIL APPL. Nos.908,918,923 OF 2021

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN THURSDAY, THE 1^ST DAY OF JUNE 2023 / 10TH JYAISHTA, 1945 BAIL APPL. NO. 918 OF 2021

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CRIME NO.1453/2020 OF Nadakkavu Police Station, Kozhikode

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PETITIONER/S:

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1 DR. P.A.FAZAL GAFOOR AGED 62 YEARS MANAPPAD HOUSE, PO NADAKKAVU, CALICUT, PIN - 673011 2 PROF. P.O.J LEBBA AGED 83 YEARS YAKKEEN HOUSE, ASRAMAM, KOLLAM BY ADVS. POOJA PANKAJ SRI.P.VIJAYA BHANU (SR.) SRI.P.M.RAFIQ SRI.M.REVIKRISHNAN SRI.AJEESH K.SASI SRI.VIPIN NARAYAN SRI.V.C.SARATH SRUTHY N. BHAT

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RESPONDENT/S:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA ERNAKULAM, PIN - 682031 2 N.K.NAVAS AGED 48 YEARS NEDIYAPARAMBIL VEEDU, ERIYAADU, KODUNGALLOOR, THRISSUR BY ADVS. PUBLIC PROSECUTOR, SMT.MAYA M N

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BAIL APPL. Nos.908,918,923 OF 2021 6

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SRI.S.RAJEEV DIRECTOR GENERAL OF PROSECUTION SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.K.ANAND (A-1921)

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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.05.2023, ALONG WITH Bail Appl..908/2021 AND CONNECTED CASES, THE COURT ON 01.06.2023 DELIVERED THE FOLLOWING:

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BAIL APPL. Nos.908,918,923 OF 2021

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P.V.KUNHIKRISHNAN, J

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--------------------------------------B.A. Nos. 908, 918 & 923 of 2021

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-----------------------------------------Dated this the 1^st day of June, 2023

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O R D E R

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These three bail applications are connected and therefore, I am disposing of these bail applications by a common order.

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The petitioners in the bail application Nos. 908/2021

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and 923/2021 are same persons and the petitioners in B.A. No. 918/2021 are the 1^st and 2^nd petitioners in the above bail applications.

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B.A. No. 923/2021 is filed under Sec. 438 Cr.P.C. apprehending arrest in Crime No. 1208/2020 of Tirur Police Station, which is registered alleging offences punishable under Sec.420 IPC. B.A. No. 908/2021 is filed apprehending arrest in Crime No. 1539/2020 of Nadakkavu Police Station. B.A.No. 918/2021 is filed apprehending arrest in Crime No. 1453/2020 of Nadakkavu Police Station.

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BAIL APPL. Nos.908,918,923 OF 2021 8

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These bail applications are filed in the year 2021 and are pending before this Court for the last about 2 years. The allegations against the accused in these cases are almost similar. The petitioner Nos. 1 and 2 in these bail applications are the President and the General Secretary of an establishment by name MES, during the period 2011-2012. It is alleged that, without the consent of the General Body of the Society, they diverted huge amount to M/s. Tarz Developers Private Limited, Thiruvannur. It is also alleged that an amount of Rs.11,62,500/- was diverted to another company by name Fairdeal Heleness Solutions Private Limited and as such, the accused had secured wrongful gain resulting in a wrongful loss to the society. Almost similar allegations are raised in all the cases.

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Heard the learned counsel for the petitioners in these bail applications. I also heard Sr.Counsel, Sri.K.Ramkumar who appeared for the defacto complainant in B.A. No.908/2021 and 923/2021. Adv.S.Rajeev appeared and argued for the defacto complainant in Crime No.1453/2020 who is the 2^nd respondent in B.A. No.918/2021.

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BAIL APPL. Nos.908,918,923 OF 2021 9

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The Public Prosecutor after getting instructions submitted that the custodial interrogation of the petitioners in these bail applications is not necessary. The Public Prosecutor submitted that the investigating officer is of the opinion that no criminal offence is made out in Crime No. 1453/2020 and in Crime No. 1539/2020 of Nadakkavu Police Station. The Public Prosecutor submitted that, a refer report is filed in Crime No. 1208/2020 of Tirur police station and the refer report was not accepted by the Jurisdictional Court. It is submitted that, court ordered further investigation. The same was challenged before this Court by filing a petition under Sec.482 Cr.P.C. and this Court stayed the further proceedings is the submission.

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The counsel appearing for the 2^nd respondent-defacto complainant in B.A. No. 918/2021 submitted that serious allegations are there against the petitioners. The counsel takes me through the objection filed by the 2^nd respondent in this bail application. The counsel also takes me through Ext.R2(a) report submitted before the Judicial First Class Magistrate Court-IV, Kozhikode by the Asst. Commissioner of Police, Kozhikode.

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Senior counsel, Sri. K.Ramkumar submitted that the

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BAIL APPL. Nos.908,918,923 OF 2021 10

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petitioners approached the Sessions Court, Kozhikode with an application under Sec.438 Cr.P.C. The Senior Counsel submitted that the Sessions Court after considering the contentions of the petitioners dismissed the bail application. Thereafter, when the petitioners approach this Court, it is the duty of the petitioners to point out the reason why the orders passed by the Sessions Court is wrong. The Senior Counsel submitted that, even though there is concurrent jurisdiction to the Sessions Court and this Court under Sec. 438 Cr.P.C, it is the duty of the petitioners to point out the reason why this Court should invoke the jurisdiction under Sec. 438 Cr.P.C, when the Sessions Court rejected that prayer.

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This Court considered the contentions of the petitioners and the respondents. I am of the considered opinion that these bail applications need not be retained for the simple reason that the investigating officer in these cases submitted that the custodial interrogation of the petitioners is not necessary. It is submitted by the Public Prosecutor that the investigating officer decided to submit refer report in these cases. It is also submitted by the Public Prosecutor that, as far

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BAIL APPL. Nos.908,918,923 OF 2021 11

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as B.A. No. 923/2021 which is filed apprehending arrest in Crime No.1208/2020 of Tirur police station, a refer report is already filed and the same is not accepted by the Jurisdictional Magistrate. Hence, further investigation is ordered. But, it is conceded that, that order is stayed by this Court.

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The senior counsel Adv.K Ramkumar submitted that the petitioners may be directed to surrender before the police. When these bail applications came up for consideration earlier, this Court passed an interim order to the effect that the petitioners shall not be arrested until served with notice under Sec. 41A Cr.P.C. That order is in force from the year 2021 onwards. In such circumstances, there is no purpose in directing the petitioners to surrender before the investigating officer, especially when the investigating officer is of the opinion that the custodial interrogation of the petitioners is not necessary and they prima facie concluded that, no criminal offence is made out. In such circumstances, I am of the opinion that, these bail applications can be disposed of recording the submission of the Public Prosecutor. All the legal contentions raised by the counsel appearing for the defacto complainant in

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BAIL APPL. Nos.908,918,923 OF 2021

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these cases are left open.

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Therefore, these bail applications are disposed of recording the submission of the Public Prosecutor that the custodial interrogation of the petitioners is not necessary in connection with the above cases. If the presence of the petitioners are necessary in future in connection with Crime No. 1208/2020 of Tirur police station and Crime Nos. 1453/2020 & 1539/2020 of Nadakavu police station, a notice under Sec.41A Cr.P.C. should be issued to the petitioners

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With the above observation, these bail applications are disposed of.

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Sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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SKS

Dr. P.a.Fazal Gafoor v. State of Kerala

Case brief

What is this about?

What did the court decide?

Dr. P.a.Fazal Gafoor v. State of Kerala

Case brief

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