Akhil A and Aji v. State of Kerala and The Station House Officer, Sooranad Police Station

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-04-03
Court Decision / Holding: The petition is allowed; pre-arrest bail granted to the petitioners with conditions including surrender before the Investigating Officer within ten days, production before the jurisdictional court on arrest, bond of Rs.50,000 with two solvent sureties, surrender of passport if any, cooperation with investigation, and compliance with other conditions; the court also notes that the IO may investigate and effect recoveries even while on bail, as per the principle laid down in Sushila Aggarwal v. State (NCT of Delhi) and another.
Final Disposition: Bail Granted (Pre-arrest bail) to petitioners with specified conditions.

Parties to the Case

Appellants / Petitioners

Akhil A
Aji

Respondents

State of Kerala represented by Public Prosecution, High Court of Kerala, Ernakulam
The Station House Officer, Sooranad Police Station, Sooranad P.O., Kollam District

Legal Representation & Advocates

Counsels for Petitioners

• P. V. Dileep

Counsels for Respondents

• Smt Neema T. V. (Senior Public Prosecutor)

Case Synopsis & Summary

This is a pre-arrest bail application under Section 438 CrPC filed by two petitioners in Crime No. 363/2024 of Sooranad Police Station, Kollam, arising from allegations of offences under Sections 323, 324, 294(b) and 427 r/w Section 34 IPC, with Section 326 IPC later incorporated. The prosecution alleges that on 18.03.2024, around 10:30 PM, after an altercation in front of the first accused’s house, the first to third accused and five others restrained and assaulted the defacto complainant; the fourth accused struck the complainant with an iron rod, causing a nasal bone fracture, and the complainant’s motorcycle was damaged to the tune of Rs.50,000. The petitioners contend their innocence, noting that Annexure A1 FIR did not originally allege Section 326, which was added later based on the treatment certificate alleging nasal fracture attributed to the fourth accused; they argue no overt act by them to attract 326 and that custodial interrogation is unnecessary. The Public Prosecutor opposes bail, claiming common intention and necessity of custodial interrogation, supported by the treatment certificate. The court, after considering the materials, finds no specific overt act against the petitioners to attract 326 and holds custodial interrogation is unnecessary, granting pre-arrest bail with conditions including surrender within ten days, bond of Rs 50,000 with two sureties, passport surrender if present, cooperation with investigation, and compliance with other conditions, while citing the principle that investigation can continue during bail.

Provisions of Law Cited

Section 438 of the Code of Criminal Procedure, 1973Sections 323, 324, 294(b) and 427 read with Section 34 IPCSection 326 IPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended their innocence and submitted Annexure A1 FIR does not initially include the offence under Section 326 IPC; the 326 offence was added later based on a treatment certificate that implicates the 4th accused, not them. They argued custodial interrogation is unnecessary and no recovery is to be effected.

Contentions of Respondents

The Public Prosecutor opposed bail, asserting the accused acted in concert with common intention and that the 4th accused caused the nasal fracture; she produced the treatment certificate and urged custodial interrogation as necessary for proper investigation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited as authority that Investigating Officer can continue investigation and seek recoveries even while the accused are on bail, supporting the bail conditions and investigative powers discussed in this judgment.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946** ## **BAIL APPL. NO. 2465 OF 2024** **CRIME NO.363/2024 OF Sooranadu Police Station, Kollam** ## **PETITIONER/S:** **1 AKHIL A AGED 19 YEARS S/O AJI, ABIN BHAVANAM, ERAVICHIRA NADUVIL, PATHARAM P.O, SOORANAD SOUTH, KOLLAM DISTRICT., PIN - 690522 2 AJI AGED 20 YEARS S/O DAMODARAN, ABIN BHAVANAM, ERAVICHIRA NADUVIL, PATHARAM P.O, SOORANAD SOUTH, KOLLAM DISTRICT., PIN - 690522** **BY ADV P.V.DILEEP** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2 THE STATION HOUSE OFFICER SOORANAD POLICE STATION, SOORANAD .P.O, KOLLAM DISTRICT., PIN - 690522** ## **OTHER PRESENT:** **SR PP SMT NEEMA T V** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** BAIL APPL. NO. 2465 OF 2024 2 ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 3 in Crime No.363/2024 of the Sooranad Police Station, Kollam, registered against the accused (four in number), for allegedly committing the offences punishable under Sections 323, 324, 294(b) and 427 r/w Section 34 of the Indian Penal Code. Subsequently, the offence under Section 326 of the IPC has been incorporated. 3. The essence of the prosecution case is that: on 18.03.2024 at around 22.30 hours, while the defacto complainant and his wife were traveling on a motor cycle, when they reached in front of the house of the 1[st] accused, there occurred an altercation between the 1[st] accused and the defacto complainant. Then, the accused 1 to 3 along with five identifiable persons assembled and the 1[st] accused hurled abuses at the defacto complainant. BAIL APPL. NO. 2465 OF 2024 3 Thereafter, he pulled down the defacto complainant from the motor cycle and assaulted him with an iron rod causing an injury on his head. The accused 1 to 3 also kicked him on his rear side. The 4[th] accused hit him with an iron rod on his face and he suffered a nasal bone fracture. The accused also caused damage to the motor cycle of the defacto complainant causing a loss of Rs.50,000/-. Thus, the accused have committed the above offences. 4. Heard; Sri.Dileep P.V., the learned counsel appearing for the petitioners and Smt.Neema T.V., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations leveled against them. A reading of Annexure A1 First Information Report would substantiate that there is no allegation of the petitioners committing the offence under Section 326 of the IPC. The said offence was subsequently incorporated based on the treatment certificate of the defacto complainant, wherein it is seen that he suffered a BAIL APPL. NO. 2465 OF 2024 4 nasal bone fracture. The said injury was caused by the 4[th] accused who hit the defacto complainant with an iron rod. Therefore, the offence under Section 326 of the IPC cannot be attributed against the petitioners. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the accused, five in number, had in furtherance of their common intention had restrained the defacto complainant and assaulted him. Nonetheless, she conceded to the fact that it was the 4[th] accused who hit the defacto complainant with an iron rod and he suffered a nasal bone fracture. She made available the treatment certificate of the defacto complainant dated 01.04.2024, issued by the Government Taluk Hospital, Karunagappally, to substantiate the fact that the defacto complainant has suffered a nasal bone fracture. She submitted that the petitioners' custodial interrogation is necessary for the proper and full investigation of the BAIL APPL. NO. 2465 OF 2024 5 crime. Hence, the application may be dismissed. 7. On an analysis of the materials on record, it can be seen that in Annexure A1 FIR, the offence under Section 326 of the IPC was not initially incorporated. The allegation against the petitioners was that they assaulted the defacto complainant. However, there is no grievous injury caused to him. Subsequently, an additional report was filed by the Investigating Officer and the offence under Section 326 was incorporated, on the allegation that the 4[th] accused had hit the defacto complainant with an iron rod and he suffered a fracture to his nasal bone. 8. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, especially taking into account the fact that there is no specific overt act alleged against the petitioners, so as to prima facie attract the offence under Section 326 of the IPC, I am of the view that the petitioners' custodial interrogation is not necessary and BAIL APPL. NO. 2465 OF 2024 6 the petitioners are entitled for an order of pre-arrest bail. Hence, I am inclined to allow the application, but subject to the condition that the petitioners co-operate with the investigation. In the result: i) The petitioners are directed to surrender before the Investigating Officer within ten days from today. ii) In the event of the petitioners' arrest, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the petitioners on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; (iv) The petitioners shall surrender their passports, if any, before the court below at the time of execution of the bond. If they have no passport, they shall file an affidavit BAIL APPL. NO. 2465 OF 2024 7 to the effect before the court below on the date of execution of the bond; v) The petitioners shall co-operate with the investigation and make themselves available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; vi). The petitioners shall not intimidate the witnesses or interfere with the investigation in any manner; vii). The petitioners shall not get involved in any other offence while on bail. viii). In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the applications for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. ix). Applications for deletion/modification of the bail conditions shall also be filed before the court below. BAIL APPL. NO. 2465 OF 2024 8 (x) Needless to mention, it would be well within the powers of the Investigating Officer to investigate 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]. sd/- **C.S.DIAS JUDGE** rkc/03.04.24 BAIL APPL. NO. 2465 OF 2024 9 ## **APPENDIX OF BAIL APPL. 2465/2024** ## **PETITIONER ANNEXURES** **Annexure-1** **THE TRUE COPY OF THE F.I.R IN CRIME NO. 363/2024 OF SOORANAD POLICE STATION IN KOLLAM DISTRICT DATED 19.3.2024.** **Annexure-2 THE TRUE COPY OF THE WOUND CERTIFICATE SHOWING INJURIES SUSTAINED TO THE MOTHER OF THE 1ST ACCUSED ISSUED FROM THE THALUK HEAD QUARTERS HOSPITAL SASTHAMCOTTA DATED 18.03.2024 TIME SHOWING 10.52 P.M.** ## **Annexure-3** **THE TRUE COPY OF THE WOUND CERTIFICATE SHOWING INJURIES SUSTAINED TO THE FATHER THE 3RD ACCUSED/2ND PETITIONER ISSUED FROM THE THALUK HEAD QUARTERS HOSPITAL SASTHAMCOTTA DATED 18.03.2024 TIME SHOWING 10.53 P.M.** **Annexure-4** **THE TRUE COPY OF THE COMPLAINT GIVEN BY THE MOTHER OF 1ST ACCUSED BEFORE THE 2ND RESPONDENT POLICE STATION DATED 18.03.2024.**