Akhil and Sasidharan C K v. State of Kerala

1 BA No.1641 of 2024 ## **`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. 1641 OF 2024 ``` ``` CRIME NO.174/2024 OF Vadakkancherry Police Station, Palakkad PETITIONER/S: ``` ``` 1AKHIL, AGED 30 YEARS KUNNUMPURATH HOUSE, KALAMKULAM, VADAKKENCHERRY, PIN - 678683 2SASIDHARAN C K, AGED 60 YEARS CHERANGATT HOUSE, KURUVAI, KANAKKENTHURUTHY, VADAKKENCHERRY, PIN - 678683 ``` ``` BY ADV M.VIVEK ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 ``` ## **`OTHER PRESENT:`** ``` PP Smt Shynimol ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 BA No.1641 of 2024 ## **C.S.DIAS,J** ## **======================** ## **BA No.1641 of 2024** ## **-----------------------------------** ## **Dated this the 3[rd] day of April, 2024** ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973 (‘Code’ for short) for an order of pre-arrest bail. 2. The petitioners are the accused 1 and 5 in crime No.174/2024 of the Vadakancherry Police Station, Palakkad, registered against the accused ( six in number), for allegedly committing the offences punishable under Secs 143, 147, 148, 323, 324 and 308 read with Sec.149 of the Indian Penal Code ( for short, IPC). 3. The gravamen of the prosecution allegation is that: on 10.2.2024, at around 21.00 hours, the accused, in 3 BA No.1641 of 2024 prosecution of their common intention, formed themselves into an unlawful assembly with deadly weapons, and while the injured was passing through the road, the first accused uttered obscene words at him and broke a beer bottle and attempted to stab him. It was only because the injured warded off the attack, he sustained an injury on his right thumb. The other accused chased the injured and the second accused hit him with a plant pot, the accused 3 to 5 fisted him and the sixth accused hit him with a steel stool and caused an injury on his forehead. Thus, the accused have committed the above offences. 4. Heard; Sri.M.Vivek, the learned counsel appearing for the petitioners and Smt.Shynimol V.O, the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately 4 BA No.1641 of 2024 incorporated Sec.308 to deny bail to the petitioners. The accused 2 to 5 have already been enlarged on bail as per the orders in BA No.1719 and 1782 of 2024. The accident register cum wound certificate would show that the injured did not suffer any serious injuries as alleged by the prosecution so as to attract the offence under Sec.308 of the IPC. Therefore, 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 seriously opposed the application. She submitted that there is specific overt act alleged against the first accused, who broke a beer bottle and attempted to murder the injured. It is only because the injured warded off attack that he suffered an injury on his right hand. She made available the accident register cum wound certificate as well as the medical certificate issued by the Government Medical College, Thrissur, to substantiate the soft tissue injury 5 BA No.1641 of 2024 suffered on his right hand. She stated that the first petitioner’s custodial interrogation is necessary and recovery is to be effected. If the first petitioner is granted an order of pre-arrest bail, it would certainly hamper the investigation. Nonetheless, she conceded to the fact that there is no specific overt act alleged against the second petitioner, who is now ranked the fifth accused in the crime. She prayed that the application may be dismissed. 7. On an evaluation of the materials on record, it can be seen that there is a specific overt act alleged against the first petitioner/ first accused, who broke a beer bottle and attempted to murder the injured. It is only because the injured warded off the attack that he suffered an injury on his right hand. The medical records prima facie show that the accusations levelled against the first petitioner is probable and injury is tallying with the accusations of the prosecution. On the other hand, I do not find any specific overt act alleged against the second 6 BA No.1641 of 2024 petitioner/fifth accused so as to attract the offence under Sec.308 of the IPC. Therefore, I hold that the second petitioner is entitled to an order of pre-arrest bail. 8. On an anxious consideration of the facts, the materials placed on record and the rival submissions made across the Bar and the findings rendered above, I am of the view that the first petitioner has not made out any exceptional ground to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, the application filed by the first petitioner is dismissed. In the result, (I) The application filed by the first petitioner/ first accused is dismissed. Nonetheless, I direct that, if he surrenders before the Investigating Officer within one week from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the first accused moves an application for bail, the jurisdictional Court shall, consider 7 BA No.1641 of 2024 the bail application on its merits. If he does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the first accused as if no order has been passed in this case. II) The application filed by the second petitioner/ fifth accused is allowed subject to the following conditions: i) The second petitioner is directed to surrender before the Investigating Officer within one week from today. ii) In the event of the second petitioner’s arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the second accused on bail on him executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The second petitioner shall co-operate with the investigation and make himself available for interrogation 8 BA No.1641 of 2024 and for the purpose of investigation as and when the Investigating Officer directs; v). The second petitioner shall not intimidate witnesses or interfere with the investigation in any manner; vi). The second petitioner 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 the matter and, if necessary, to effect recoveries on the information, if any, given by the second petitioner even while he is on bail as laid down by the Hon'ble Supreme 9 BA No.1641 of 2024 Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. sd/- sks/3.4.2024 **C.S.DIAS, JUDGE**