Adhipan Raj and Jothish Joy v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 26[TH] DAY OF JULY 2024 / 4TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5639 OF 2024 ``` ``` CRIME NO.457/2024 OF VANCHIYOOR POLICE STATION, ``` ## **`THIRUVANANTHAPURAM`** ``` AGAINST THE ORDER DATED 02.07.2024 IN CRMC NO.1547 OF 2024 OF ADDITIONAL SESSIONS COURT - II, THIRUVANANTHAPURAM PETITIONER( S )/ACCUSED 5: ``` - **`1 ADHIPAN RAJ, AGED 32 YEARS S/O VALSALA, TC.21/2101 (B1-16), MANNADI LANE, AMBALAMUKKU, PEROORKADA P.O, THIRUVANANTHAPURAM, PIN – 695 005`** ``` 2JOTHISH JOY, AGED 26 YEARS S/O JOY, TC.35/2825, BINDU CILASOM. SREEKRISHNA NAGAR, THIRUMALA P.O, THIRUVANANTHAPURAM, PIN – 695 006 ``` ``` BY ADVS. G.RANJU MOHAN M.SANTHI (K/868/2011) THEERTHA NAIR A.P. SREEHARI M.B. DEV NATH A. ``` ## **`RESPONDENT(S)/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031 ``` ``` BY ADVS. SMT.NEEMA T.V (SENIOR PUBLIC PROSECUTOR) ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 26.07.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.5639 of 2024 -:2:- ## **O R D E R** Dated this the 26[th] day of July, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioners are the accused 5 and 7 in Crime No.457/2024 of the Vanchiyoor Police Station, Thiruvananthapuram, which is registered against them for allegedly committing the offences punishable under Sections 294(b), 341, 323, 324, 506(i), 308, 212 r/w Section 34 of the Indian Penal Code. 3. The gist of the prosecution case is that: on 16.05.2024, at around 23:45 hours, the accused, in furtherance of the common intention, had wrongfully restrained the de facto complainant and his friend and the 1[st] accused attempted to stab on the de facto complainant with a knife. However, since he warded off B.A.No.5639 of 2024 -:3:- the attack, he did not lose his life. The 2[nd] accused fisted on his right eye and the 3[rd] accused fisted him on his face. The accused 4 and 5 beat and fisted the 1[st] informant. Due to the attempt made by the 1[st] accused, the de facto complainant suffered a stab injury on his right eye. Thus, the accused have committed the above offences. 4. Heard; Sri.G.Ranju Mohan, the learned counsel appearing for the petitioners, Smt.Neema T.V, the learned Senior Public Prosecutor appearing for the second respondent. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure A1 FIR would establish that the specific overt act of allegedly committing the offence under Section 308 IPC is attributed against accused 1 and 2. The only allegation against the petitioners is that, they facilitated B.A.No.5639 of 2024 -:4:- the accused 1 and 2 to commit the above offences. The petitioners do not have any criminal antecedents. Therefore, the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that there are specific overt acts alleged against the petitioners, who have also assaulted the de facto complainant and his friend, who have suffered injuries. She made available the accident register-cum-wound certificate of the de facto complainant issued by the Medical College Hospital, Thiruvananthapuram dated 17.05.2024, to substantiate the injury suffered by the de facto complainant. She submitted that the petitioners’ custodial interrogation is necessary and recovery is to be effected. Hence, the application may be dismissed. B.A.No.5639 of 2024 -:5:- 7. On an evaluation of Annexure-A1 FIR, it can be gathered that the specific overt act of assaulting the de facto complainant is attributed against 1[st] accused, who used a knife. Although, the 1[st] accused attempted to murder the de facto complainant with a knife, he warded off the attack and suffered a stab injury on his right eye. Similarly, accused 2 and 3, who fisted on the de facto complainant’s face and corresponding injuries are reported in the wound certificate also. The allegations against the petitioners is that they had assaulted the de facto complainant with their hands. 8. On an overall consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly on considering the fact that there is no specific overt act alleged against the petitioners so as to attract the offence under Section 308 IPC, though this is a matter to be investigated and ultimately decided at the time of trial, I am of the firm B.A.No.5639 of 2024 -:6:- view that the petitioners custodial interrogation is not necessary and no recovery is to be effected. Therefore, I am satisfied that the petitioners have made out valid grounds to invoke the extraordinary jurisdiction of this Court under Section 438 of the Code. Hence, I am inclined to allow the application. In the result, the application is allowed subject to the following conditions: (i) The petitioners are directed to surrender before the Investigating Officer within two weeks from today. - (ii) In the event of the arrest of the petitioners, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/(Rupees Fifty Thousand only) each with two solvent sureties for the like amount each; - (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioners shall not directly or indirectly B.A.No.5639 of 2024 -:7:- make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passport, they shall file affidavits to the effect before the said court within the said period; - (vi)The petitioners shall not get involved in any other offence while on bail; - (vii) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (viii)Applications for deletion/modification of the bail conditions shall also be filed before the court below. - (ix) Needless to mention, it would be well within the powers of the Investigating Officer to investigate B.A.No.5639 of 2024 -:8:- the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners are on bail as laid down by the Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) And another** [2020 (1) KHC 663]. - (x) The observations made in this order are only for the purpose of considering the application and the same shall not be construed as an expression on the merits of the case to be decided by competent Courts. Sd/- ## **C.S.DIAS,JUDGE** JJ B.A.No.5639 of 2024 -:9:- ## **`APPENDIX OF BAIL APPL. 5639/2024`** ``` PETITIONER’S ANNEXURES Annexure A1THE TRUE COPY OF THE FIR N0. 457/2024 DATED 17-05-2024 OF VANCHIYOOR POLICE STATION ``` ``` Annexure A2TRUE COPY OF THE ORDER PASSED BY ADDITIONALSESSIONSJUDGE-II, THIRUVANANTHAPURAM DATED 02-07-2024 Annexure A3TRUE COPY OF THE ORDER PRODUCED BY COURT OF SESSION JUDGE, THIRUVANANTHAPURAM DATED 03-06-2024 Annexure A4THE TRUE COPY OF THE FIR NO. 459/2024 DATED 17-05-2024 OF VANCHIYOOR POLICE STATION Annexure A5TRUE COPY OF THE FIR NO. 456/2024 DATED 17-05-2024 IN VANCHIYOOR POLICE STATION ``` ``` //TRUE COPY// PA TO JUDGE ```