Ambareesh P D and Sumesh Thathuppara alias Sumesh T B v. State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5145 OF 2024 ``` ``` CRIME NO.292/2024 OF Kelakom Police Station, Kannur ``` ``` ------------ ``` ## **`PETITIONERS/ACCUSED 1 & 2 :-`** ``` 1AMBAREESH P D, AGED 40 YEARS S/O DAMODHARAN P R, PUTHUPARAMBIL HOUSE, PARATHODE, KELAKOM, CHETTIYAMPARAMBAMBA P O, KANNUR, PIN - 670 674 ``` ``` 2SUMESH THATHUPPARA ALIAS SUMESH T B, AGED 45 YEARS S/O BHASKARAN THATHUPARA, "THATHUPARA", KELAKOM, CHETTIYAMPARAMBAMBA P O, KANNUR, PIN - 670 674 ``` ``` BY ADVS. ELIZEBATH GEORGE CYRIAC KURIAN EMMANUEL CYRIAC ``` ## **`RESPONDENTS :-`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682 031`** - **`2 RONEX P GEORGE, AGED 23 YEARS S/O GEORGE, PADIYAKANDATHIL, ADAKKATHODE, MUTTUMATTI, KELAKAM, KANNUR, PIN - 670 674`** - **`3 JERIL, AGED 25 YEARS S/O GEORGE, PADIYAKANDATHIL, ADAKKATHODE, MUTTUMATTI, KELAKAM, KANNUR, PIN - 670 674`** ``` BY ADVS. RAHUL SUNIL P.V.JOSE BY SMT.NEEMA T.V., SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 05.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` BAIL APPL. NO. 5145 OF 2024 ``` ``` -: 2 :- ``` ## **O R D E R** **Dated this the 5th day of August, 2024** This is the second application 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 2 in Crime No.292/2024 of the Kelakom Police Station, Kannur, which is registered against the accused (eight in number), for allegedly committing the offences punishable under Sections 143, 147, 148, 452, 341, 324, 326 and 427 r/w Section 149 of the Indian Penal Code. 3. The crux of the prosecution allegation is that; on 05.05.2024, at around 21:00 hrs., the accused, in prosecution of their common intention, trespassed into the house of the de facto complainant and dragged him out of his house and attacked him with wooden sticks and caused him grievous injuries. Thus, the accused have committed the above offences. ``` BAIL APPL. NO. 5145 OF 2024 ``` ``` -: 3 :- ``` 4. Heard; Smt.Elizebath George Mecheril, the learned counsel for the petitioners, Smt.Neema T.V., the learned Senior Public Prosecutor and Sri.Rahul Sunil, the learned counsel appearing for respondents 2 and 3. 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 incorporated Section 326 of the IPC without any substantial materials. The petitioners are law abiding citizens without any criminal antecedents. The subject matter in dispute between the petitioners and respondents 2 and 3 have been amicably settled out of court. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor, on instructions, submitted that the Investigating Officer has ascertained from the respondents 2 and 3 and found out that the ``` BAIL APPL. NO. 5145 OF 2024 ``` ``` -: 4 :- ``` dispute between the parties has been settled. The Investigating Officer has also recorded the statements of respondents 2 and 3. Therefore, the petitioners' custodial interrogation is not necessary for the proper and full investigation of the crime. Hence, the application may be accordingly disposed of. 7. The learned counsel appearing for respondents 2 and 3 also submitted that the dispute between the parties has been settled as per Annexure A4 affidavit signed by the parties. The respondents 2 and 3 have no subsisting grievance against the petitioners. Hence, they have no objection in the application being allowed. 8. On an overall consideration of the facts, the rival submissions made across the Bar and the materials placed on record, particularly on comprehending the fact that the dispute between the parties has been settled as per Annexure A4 affidavit, the respondents 2 and 3 have no subsisting grievance against the petitioners, that the ``` BAIL APPL. NO. 5145 OF 2024 ``` ``` -: 5 :- ``` petitioners' custodial interrogation is not necessary, I am satisfied that the petitioners have made out valid grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code. Hence, I am inclined to allow that 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 10 days from today; - (ii) In the event of the petitioners' arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like amount; - (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 make any inducement, threat or procure to any person acquainted with the facts of the case so ``` BAIL APPL. NO. 5145 OF 2024 ``` ``` -: 6 :- ``` 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 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 passports, 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 they are 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 petitioners even while the ``` BAIL APPL. NO. 5145 OF 2024 ``` ``` -: 7 :- ``` 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** Jvt/5.8.2024 ``` BAIL APPL. NO. 5145 OF 2024 ``` ``` -: 8 :- ``` ## **`APPENDIX OF BAIL APPL. 5145/2024`** ## **`PETITIONER ANNEXURES :-`** |**`Annexure A1`**|**`TRUE COPY OF THE FIR NO.292 OF 2024 DATED`**| |---|---| ||**`06.05.2024 OF KELAKOM POLICE STATION`**| |**`Annexure A2`**|**`TRUE COPY OF THE ORDER IN CRL.MC 898/2024 DATED`**| ||**`17.05.2024 DISMISSING THE ANTICIPATORY BAIL OF`**| ||**`THE PETITIONERS`**| |**`Annexure A3`**|**`TRUE COPY OF THE JUDGMENT DATED 10-06-2024 IN`**| ||**`BAIL APPL.4528/2024 OF THIS HON'BLE COURT`**| |**`Annexure A4`**|**`TRUE COPY OF THE AFFIDAVIT DATED 13-05-2023`**| ||**`ENTERED BETWEEN THE PARTIES`**| |**`Annexure A5`**|**`TRUE COPY OF THE FIR NO. 290/2024 BY KELAKOM`**| ||**`POLICE STATION DATED 05-05-24`**| |**`Annexure A6`**|**`TRUE COPY OF THE FIR NO. 291/2024 BY KELAKOM`**| ||**`POLICE STATION DATED 06-05-24`**|