Akshay Baiju v. State of Kerala and Station House Officer, Kazhakkuttom Police Station, Thiruvananthapuram District

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` FRIDAY, THE 24[TH] DAY OF MAY 2024 / 3RD JYAISHTA, 1946 ``` ``` BAIL APPL.NO.4059 OF 2024 ``` ``` CRIME NO.548/2024 OF Kazhakkuttom Police Station, Thiruvananthapuram ``` ``` ------------- ORDER DATED 08.05.2024 IN CRMC NO.1153 OF 2024 OF ADDITIONAL SESSIONS COURT - V, THIRUVANANTHAPURAM ``` ``` -------------- ``` ## **`PETITIONER/ACCUSED No.11 :-`** ``` AKSHAY BAIJU, AGED 23 YEARS S/O.BAIJU, NISHA BHAVAN, PUTHUKURUCHY P.O, KADINAMKULAM VILLAGE, THIRUVANANTHAPURAM, PIN - 695 303 ``` ``` BY ADV M.R.SARIN ``` ## **`RESPONDENT/STATE :-`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 STATION HOUSE OFFICER KAZHAKKUTTAM POLICE STATION, TRIVANDRUM DISTRICT, PIN - 695 582`** ## **`SRI.C.S.HRITHWIK, SR.PP`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 24.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL.NO.4059 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** ## **Dated this the 24th day of May, 2024** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 _,_ for an order of pre-arrest bail. 2. The petitioner is the 11[th] accused in Crime No.548/2024 of Kazhakkuttom Police Station, Thiruvananthapuram, registered against the accused (11 in number) for allegedly committing the offences punishable under Sections 143, 147, 148, 149, 342, 294(b), 323, 324 and 307 r/w Section 149 of the Indian Penal Code. 3. The essence of the prosecution case is that; on 20.04.2024, the accused, in prosecution of their common intention, formed an unlawful assembly and the 3[rd] accused slapped the de facto complainant while the accused 2, 4 and 5 beat his brother. While the de facto complainant tried to intervene in the matter, the 1[st] accused stabbed him multiple times on his chest, back, ``` BAIL APPL.NO.4059 OF 2024 ``` ``` -: 3 :- ``` neck and hand causing deep and incised injuries. Thereafter, the 1[st] accused also struck the de facto complainant's brother with a steel dustbin and caused injuries to him. Thus, the accused have committed the above offences. 4. Heard; Sri.M.R.Sarin, the learned counsel for the petitioner and Sri.C.S.Hrithwik, the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure A1 remand report would show that there is no specific overt act alleged against the petitioner so as to attract the offence under Section 307 of the Indian Penal Code, which is the only non-bailable offence. The specific overt act is alleged only against the 1[st] accused for having inflicted grievous injuries on both de fact complainant and his brother. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Even though, the petitioner had ``` BAIL APPL.NO.4059 OF 2024 ``` ``` -: 4 :- ``` filed a similar application before the Court of Session, Thiruvananthapuram, by Annexure A2 order, the said application was dismissed on the finding that some of the accused are yet to be apprehended. The finding of the learned Sessions Judge is incorrect because there is no overt act alleged against the petitioner. Hence, the petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that if the petitioner is granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. 7. On analysing the materials on record, especially Annexure A1 FIR and the findings in Annexure A2 order passed by the learned Sessions Judge, it can be gathered that, _prima facie_ there is no allegation against the petitioner so as to attract the offence under Section 307 of the Indian Penal Code. Nonetheless, that is a matter to be investigated and decided at the time of trial. However, I ``` BAIL APPL.NO.4059 OF 2024 ``` ``` -: 5 :- ``` am of the definite view that the petitioner's custodial interrogation is not necessary and no recovery is to be effected, especially because there is no specific overt act alleged against the petitioner. Hence, I am convinced that the petitioner has made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Sec.438 of the Code. Therefore, I hold that this is a fit case to grant an order of pre-arrest bail. In the result, the application is allowed subject to the following conditions :- - (i) The petitioner is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the petitioner on bail on him executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. ``` BAIL APPL.NO.4059 OF 2024 ``` ``` -: 6 :- ``` - (iv) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioner shall surrender his passport before the jurisdictional court concerned within a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before said court within the said period; - (vi) The 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, ``` BAIL APPL.NO.4059 OF 2024 ``` ``` -: 7 :- ``` given by the petitioner even while the petitioner is 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** Jvt/24.5.2024 ``` BAIL APPL.NO.4059 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL. 4059/2024`** ## **`PETITIONER ANNEXURES :-`** ``` Annexure A1THE TRUE COPY OF THE REMAND REPORT FILED BY THE 2ND RESPONDENT AGAINST THE 6ACCUSSED Annexure A2THE TRUE COPY OF ORDER IN CRIMINAL M.C NO. 1153/ 2024 PASSED BY THE HON'BLE ADDITIONAL SESSIONS JUDGE-V, THIRUVANANTHAPURAM DATED ON 08.05.2024 ```