Arun M and others v. State of Kerala and Public Prosecutor SMT Shynimole V.O.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 7[TH] DAY OF MARCH 2024 / 17TH PHALGUNA, 1945 BAIL APPL. NO. 1451 OF 2024 CRIME NO.124/2024 OF ALATHUR POLICE STATION, PALAKKAD AGAINST THE ORDER DATED IN CRMC NO.927 OF 2024 OF DISTRICT COURT & SESSIONS COURT, PALAKKAD ARISING OUT OF THE ORDER/JUDGMENT DATED IN CRMP NO.349 OF 2024 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,ALATHUR ``` ## **`PETITIONERS/ACCUSED 1 TO 5:`** ``` 1 ARUN M, AGED 37 YEARS S/O MANI, AMBADI HOUSE, KANNODE KANJIKKODE POST, PUDHUSSERY CENTRAL VILLAGE, PALAKKAD, PIN - 678621 ``` ``` 2 AJITHKUMAR K.P, AGED 44 YEARS S/O K.P. KUNCHELAN, PARAPETTIKALAM HOUSE, NOCHUR POST, THARUR I VILLAGE, ALATHUR TALUK, PALAKKAD, PIN - 678501 ``` ``` 3 MANU M, AGED 32 YEARS S/O MANI, AMBADI HOUSE, KANNODE KANJIKKODE POST, PUDHUSSERY CENTRAL VILLAGE, PALAKKAD, PIN - 678621 ``` ``` 4 MANOJ K, AGED 33 YEARS S/O KUPPAN, PANDIYATHUPADAM HOUSE, KANJIKKODE POST, PUDHUSSERY CENTRAL VILLAGE, PALAKKAD, PIN - 678621 ``` ``` 5 FRANCIS, AGED 39 YEARS S/O AROGYARAJ, KANNODE HOUSE, KANJIKKODE POST, PUDHUSSERY CENTRAL VILLAGE, ``` ``` 2 ``` ## **B.A. No.1451 of 2024** ``` PALAKKAD, PIN - 678621 ``` ``` BY ADVS. THAREEQ ANVER K. P.K.MOHANAN(PALAKKAD) K.SALMA JENNATH ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## **`PP SMT SHYNIMOLE V O`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **B.A. No.1451 of 2024** ``` 3 ``` ## **Dated this the 7[th] day of March, 2024** ## **O R D E R** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 to 5 in Crime No.124/2024 of the Alathur Police Station, Palakkad, registered against the accused for allegedly committing the offences under Sections 143, 147, 148, 506(ii), 341, 323 and 307 r/w Section 149 of the Indian Penal Code. The petitioners were arrested on 29.01.2024. 2. The gravemen of the prosecution case, is that; on 28.01.2024, the accused 2 and 7, along with a person named Sundaran, went to Chithrapuri Bar, Kallepully, and ordered food. As there was some delay in serving the food, they had a confrontation with the waiters in the bar. Immediately, the second accused informed the first **B.A. No.1451 of 2024** ``` 4 ``` accused about the incident, and he, along with the accused 3 to 6, went over to the bar with an air gun. The first accused, at around 22.45 hours, opened fire with the air gun on one Raghunandan/the first informant, who sustained a punctured wound on his chest and he had to undergo surgery. The accused also formed themselves into an unlawful assembly and assaulted the employees of the bar. Thus, the accused have committed the above offences. 3. Heard Sri. Thareeq Anver.K, the learned counsel appearing for the petitioners and Smt. Shiny. V.O, the learned Senior 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 307 of the IPC to deny bail to the petitioners. The petitioners have been in judicial custody since 29.01.2024. The **B.A. No.1451 of 2024** ``` 5 ``` investigation in the case is practically complete, and the recovery has been effected. A reading of Annexure A1 FIR would substantiate the overt act alleged against the first petitioner/first accused. The other accused had only accompanied the first accused. The petitioners’ further detention is unnecessary. Hence, they may be released on bail. 5. The learned Public Prosecutor seriously opposed the application. She contended that, the accused, in prosecution of their common intention, had assembled at the place of occurrence, and the first accused had opened fire on the first informant, who suffered a serious injury. It is because of emergent surgery, that his life was saved. The investigation in the case is still in progress. If the petitioners are released on bail, they would be sabotage the investigation and intimidate the witnesses. Hence, the application may be dismissed. 6. On an evaluation of the materials placed on **B.A. No.1451 of 2024** ``` 6 ``` record, it can be gathered that the accused 1 to 7, in prosecution of their common intention, had assembled at the place of occurrence, and the first had opened fire on the first informant. The discharge summary issued by Valluvanad Hospital Complex Limited, dated 31.01.2024, substantiate that the first informant underwent surgery for removal of the pellet. He suffered a 0.5 x 3 cm punctured wound just above the manbrium sterni. The sutures were removed only after ten days. This aspect by itself shows the gravity and seriousness of the accusations levelled against the petitioners. However, on a consideration of the FIR and the other materials placed on record, it can be gathered that it was the first accused who used the firearm and shot at the first informant. The allegations against petitioners 2 to 5 prima facie do not attract the offence under Section 307, though Section 149 of the IPC has also been incorporated. Thus, I am of the view that the application in respect of the first petitioner/first accused is to be **B.A. No.1451 of 2024** ``` 7 ``` dismissed, and the application in respect of petitioners 2 to 5, is to be allowed. ## 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; - (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 ``` 8 ``` ## **B.A. No.1451 of 2024** 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 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. On a comprehensive consideration of the facts, the materials placed on record, the rival submissions made across the Bar and particularly taking note of the ## **B.A. No.1451 of 2024** ## **`9`** nature, seriousness, and gravity of the accusations levelled against the first petitioner/first accused, I am convinced that the first petitioner/first accused cannot be released at this stage. Nonetheless, I am inclined to allow the application of the petitioners 2 to 5. In the result; (i) The application filed by the first petitioner/first accused is dismissed. (ii) The application filed by the petitioners 2 to 5 / accused 2 to 5 is allowed, by directing the petitioner to be released on bail on them executing a bond for Rs.1,00,000/- (Rupees One Lakh only) each 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 petitioners shall appear before the Investigating Officer on every Tuesday and Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer **B.A. No.1451 of 2024** ``` 10 ``` once a month till the conclusion of the proceedings. (ii) The petitioners 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 her from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (iii) The petitioners shall not commit any offence while they are on bail; (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 passports, they shall file affidavit to the effect before the court below on the date of execution of the bond; (v) The petitioners shall furnish their present address and their mobile phone number and the place where they propose to stay till the final report is laid; (vi) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be ``` 11 ``` ## **B.A. No.1451 of 2024** empowered to consider the application for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. (vii) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below. (viii) 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].** mtk/07.03.24 **C.S.DIAS, JUDGE** **B.A. No.1451 of 2024** ``` 12 ``` ## **`APPENDIX OF BAIL APPL. 1451/2024`** ## **`PETITIONER ANNEXURES`** ``` ANNEXURE 1A TRUE COPY OF THE FIRST INFORMATION REPORT IN ALATHUR POLICE STATION CRIME NO.124/2024 DATED 29/01/2024 OBTAINED FROM THE INTERNET ``` - **`ANNEXURE 2 A TRUE COPY OF THE ORDER DATED 01/02/2024 IN CRL.M.P. 349/2024 IN CRIME NO.124/2024 OF ALATHUR POLICE STATION ON THE FILES OF JUDICIAL MAGISTRATE OF FIRST CLASS-1, ALATHUR`** - **`ANNEXURE 3 ORDER DATED 16-02-2024 IN CRMC 927/2024 ON DISTRICT COURT & SESSIONS COURT, PALAKKAD`** - **`ANNEXURE 4 A TRUE COPY OF THE FIR DATED 29/01/2024 IN ALATHUR POLICE STATION CRIME NO.125/2024 REGISTERED AGAINST THE DEFACTO COMPLAINANT AND HIS MEN OBTAINED FROM INTERNET`** - **`ANNEXURE 5 A TRUE COPY OF THE AFFIDAVIT DATED 13/02/2024 SWORN BY THE DE-FACTO COMPLAINANT RAGHUNANDANAN`**