Anoop Nambiar and Aswanth P Sunil v. State of Kerala and Varandarappilly Police Station

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2722 OF 2024 ``` ``` CRIME NO.192/2024 OF Varandarappally Police Station, Thrissur DATED 25.03.2024 IN CRMP NO.2480 OF 2024 OF JUDICIAL MAGISTRATE ``` ## **`OF FIRST CLASS ,IRINJALAKUDA`** ## **`PETITIONERS/ACCUSED NOS.1 AND 3:`** - **`1 ANOOJ NAMBIAR AGED 20 YEARS`** - **`S/O SIVADASAN, NEDUMBILLY HOUSE, MATTUMALA-NANDIPULAM DESOM, VARANDARAPPILLY VILLAGE, THRISSUR DISTRICT, PIN - 680312`** - **`2 ASWANTH P SUNIL AGED 24 YEARS S/O SUNILKUMAR, PUNNATHARA HOUSE , MATTUMALA-NANDIPULAM DESOM, VARANDARAPPILLY VILLAGE, THRISSUR DISTRICT, PIN - 680312`** ## **`BY ADV RAJESH CHAKYAT`** ## **`RESPONDENTS/COMPLAINANT/STATE:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 THE STATION HOUSE OFFICER VARANDARAPPILLY POLICE STATION, THRISSUR DISTRICT, PIN - 680303`** ## **`SMT.SEETHA S.S SR.PP`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 2722 OF 2024 2 ``` ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 and 3 in Crime No.300/2024 of Varandarappally Police Station, Thrissur, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 341, 323, 324, 308 and 506 r/w 34 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioners were arrested on 22.3.2024. 2. The essence of the prosecution case is that: on 20.3.2024, at around 22.15 hours, the accused, in furtherance of their common intention, wrongfully restrained the de-facto complainant and the 1[st] accused stabbed him on his chest which was blocked by him. But he suffered an injury on the left side of his abdomen. The 2[nd] accused placed a knife on his neck and intimidated him. Whereas, the 3[rd] accused kicked him. Thus, the accused have committed the above offences. ``` BAIL APPL. NO. 2722 OF 2024 3 ``` 3. Heard; Sri. Rajesh Chakyat, the learned counsel appearing for the petitioners and Smt. Seetha S, the learned Public Prosecutor appearing for the respondent. 4. 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 308 of the IPC to deny bail to the petitioners. In any given case, the petitioners have been in judicial custody since 22.03.2024, the investigation in the case is complete and the recovery has been effected. Therefore, the petitioners further detention is not necessary. Hence, the petitioners may be released on bail. 5. The learned Public Prosecutor opposed the application. She submitted that the 1[st] accused had inflicted grievous injury on the abdomen of the de facto complainant. She made available the accident register cum wound certificate of the injured issued by the Taluk Hospital, Pudukkad dated 20.3.2024. She submitted that the investigation is in progress. The 1[st] petitioner/1st ``` BAIL APPL. NO. 2722 OF 2024 4 ``` accused is released on bail, it would hamper with the investigation. She did not dispute the fact that the overt act alleged against the 3[rd] respondent was that he kicked the de facto complainant. She prayed that the application be dismissed. 6. An evaluation of the materials on record, it can be gathered that the specific overt act alleged against the 1[st] accused is that he inflicted a stab injury on the abdomen of the de facto complainant, which prima facie stands corroborated with the accident register cum wound certificate dated 20.3.2024. Therefore there is prima facie intend to show the involvement of the 1[st] petitioner/1st accused in the crime. It is submitted that the investigation is not complete. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.** [(2010) 14 SCC 496], the Honourable Supreme Court has observed as follows: “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; ``` BAIL APPL. NO. 2722 OF 2024 5 ``` (ii) nature and gravity of the accusation: (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail.” ## 8. Subsequently, in **Kalyan Chandra Sarkar v.** **Rajesh Ranjan Alias Pappu Yadav and another** [(2005) 2 SCC 42], the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the evidence or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the ``` BAIL APPL. NO. 2722 OF 2024 6 ``` trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering with the evidence by the accused. ## 9. In **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], the Hon'ble Supreme Court has held thus: “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been ``` BAIL APPL. NO. 2722 OF 2024 7 ``` granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” 10. On an anxious consideration of the facts, the rival submissions made across the Bar, the materials placed on record, the proclamation of law in the aforesaid decisions and on comprehending the specific overt act alleged against the 1[st] petitioner/1[st] accused in inflicting a stab injury on the abdomen of the de facto complainant, the fact that the investigation is in progress and the apprehension projected by the learned Public Prosecutor that if the 1[st] petitioner is released on bail, it may hamper the investigation, I hold that the 1[st] accused/1st petitioner is not entitled to be released on bail. However, considering the fact that there is no overt act alleged against the 2nd petitioner, I am satisfied that he can be released on bail. In the result, the application filed by the 1[st] petitioner/1st accused is dismissed. The application filed by 2[nd] petitioner/3rd accused is allowed, by directing the 2[nd] petitioner to be released on bail on him executing a ``` BAIL APPL. NO. 2722 OF 2024 8 ``` bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which shall be subject to the following conditions: - (i) The 2[nd] petitioner shall appear before the on - Investigating Officer every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required; - (ii) The 2[nd] 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; - (iii) The 2[nd] petitioner shall not commit any offence while he is on bail; - (iv) The 2[nd] petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, they shall file an affidavit to the effect before the court below on the date of ``` BAIL APPL. NO. 2722 OF 2024 9 ``` ## execution of the bond; - (v) 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. - (vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. - (vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if to recoveries on the - necessary, effect information, if any, given by the petitioner 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`** Sru ``` BAIL APPL. NO. 2722 OF 2024 10 ``` ## **`APPENDIX OF BAIL APPL. 2722/2024`** ``` PETITIONER ANNEXURES Annexure 1 ``` ``` A COPY OF THE ORDER DATED 25.03.2024 IN CRL.M.P.NO.2480/2024 ON THE FILE OF JUDICIAL FIRST-CLASS MAGISTRATE COURT, IRINJALAKUDA ```