High Court of KeralaSingle Judge2024-05-27Pre-arrest bail granted to the applicant Azad u...

Azad v. State of Kerala and Others

Case / Petition Number:BAIL APPL. NO. 3821 OF 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-05-27
Court Decision / Holding: The application is allowed; the petitioner is entitled to pre-arrest bail subject to conditions: surrender before IO within 10 days; bond of Rs.50,000 with two sureties of Rs.50,000 each; appear for interrogation as directed; not induce or tamper with witnesses; surrender passport within one week if applicable; refrain from any other offence while on bail; court may cancel bail for violation; and modifications may be sought; observations are for bail purposes only and not on merits.
Final Disposition: Pre-arrest bail granted to the applicant Azad under Section 438 CrPC with stated conditions.

Parties to the Case

Appellants / Petitioners

Azad

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
The Station House Officer, West Police Station, Kollam
Azeem, S/o Abubakkar

Legal Representation & Advocates

Counsels for Petitioners

• C. R. Jayakumar
• Nobel Raju

Counsels for Respondents

• Smt. Seetha S. (Senior Public Prosecutor)

Case Synopsis & Summary

This is a bail application under Section 438 CrPC filed by Azad, the third accused in Crime No.456/2023 of Kollam West Police Station, Kollam, involving four accused charged with offences including 294(b), 323, 324, 341 and 307 read with Section 34 IPC. The prosecution alleges that on 24.4.2024, around 6 a.m., the accused abused and quarreled with the injured Manu over a cash payment; the first accused stabbed Manu, after which the 3rd and 4th accused restrained and punched the victim. The petitioner argues total innocence and that the specific overt act alleged against him does not attract Section 307, as the overt act is attributed to the first accused. It is pointed out that the accused 1, 2 and 4 have already been arrested and enlarged on bail, and that custodial interrogation is unnecessary since no recoveries are expected. The Public Prosecutor argues that investigation is ongoing and that pre-arrest bail may hamper it, though she concedes that the first accused performed the stabbing. The court notes that the only overt act attributed to the petitioner concerns facilitating the 4th accused to punch the victim, and prima facie the 307 IPC offence may not be attracted against the petitioner; however, it is a matter for trial. The court ultimately grants pre-arrest bail, subject to conditions including surrender within 10 days, a Rs.50,000 bond with two sureties, cooperation with IO, safeguarding against tampering, surrender of passport, no new offences, and possible cancellation if conditions are violated. It clarifies the observations are for bail purposes only and not merits.

Provisions of Law Cited

Section 438 CrPCSections 294(b), 323, 324, 341, 307 read with Section 34 IPC

Legal Doctrines & Maxims

Exceptional circumstances to invoke the extraordinary jurisdiction under Section 438 CrPC
Extraordinary jurisdiction of the Court under Section 438 CrPC on bail
Principle that grant of bail can be ordered where custodial interrogation is not necessary and where investigation is not hampered

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that he is totally innocent and that the specific overt act attributed to him does not involve Section 307; the first accused alone stabbed the injured. He argues that custodial interrogation is unnecessary, no recovery is intended, and that the ongoing investigation does not require detention. He seeks pre-arrest bail on exceptional circumstances and cooperation with the investigation.

Contentions of Respondents

The prosecution asserts ongoing investigation and argues that granting pre-arrest bail could hamper the inquiry. While conceding that the first accused delivered the stab, the prosecution maintains that the petitioner’s role was limited to facilitating the fourth accused to punch the victim, and thus the merits must be determined at trial.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited to justify that recoveries can be effected by police even when an accused is on bail, as per the Supreme Court decision cited.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3821 OF 2024 ``` ## **`CRIME NO.456/2024 OF KOLLAM WEST POLICE STATION, KOLLAM PETITIONER:`** ``` AZAD, AGED 31 YEARS S/O SHOUKATH, ZIYARATHU MANZIL, PALLIKIZHAKATHIL, KAVANAD PO, KUREEPUZHA, KOLLAM, PIN – 691003 ``` ## **`BY ADVS. C.R.JAYAKUMAR NOBEL RAJU`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031`** - **`2 THE STATION HOUSE OFFICER, WEST POLICE STATION, KOLLAM, PIN – 691013`** - **`3 AZEEM, AGED 32 YEARS S/O ABUBAKKAR, KUMBALATHU THARAYIL JASMIN MANZIL, KANNIMEL CHERY, KAVANADU, SAKTHIKULANGARA PO, KOLLAM NOW RESIDING AT ANITHA BHAVAN, KUREEPUZHA, KOLLAM WEST, COLLECTORATE PO, KOLLAM, PIN – 691003`** ## **`SMT. SEETHA S.`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.3821 of 2024 _-:2:-_ Dated this the 27[th] day of May, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the third accused in Crime No.456/2023 of the Kollam West Police Station, Kollam, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 294(b), 323, 324, 341 and 307 read with Section 34 of the Indian Penal Code, 1860 ( in short, ‘IPC’). 3. The gist of the prosecution allegation is that: on 24.4.2024, at around 6 hours, the accused, in furtherance of their common intention, abused and quarreled with Manu (injured) over a cash payment. Suddenly, the first accused got angry and stabbed the injured. Then, the accused B.A.No.3821 of 2024 _-:3:-_ 3 and 4 held the injured and the 4[th] accused punched the injured on his head. Thus, the accused have committed the above offences. 4. Heard; Sri.C.R.Jayakumar, the learned counsel appearing for the petitioner and Smt.Seetha S., 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 FIR would substantiate that the offence under Section 307 of the IPC will not be attracted against the petitioner, since the specific overt act is alleged against the first accused. The accused 1, 2 and 4 were already arrested and have been enlarged on bail. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the B.A.No.3821 of 2024 _-:4:-_ application. She submitted that the investigation in the case is in progress. She also stated that if the petitioner is granted an order of pre-arrest bail, it would hamper with the investigation. Nonetheless, she conceded to the fact that it was the first accused who stabbed the injured. 7. On a analysis of the Annexure A1 FIR, and the materials on record, it can be gathered that the specific overt act is only alleged against the first accused, who stabbed the injured. The overt act alleged against the petitioner is that he facilitated the fourth accused to punch on the head of the victim. Therefore, prima facie, I am of the view that the offence under Section 307 of the IPC may not be attracted against the petitioner. Nonetheless, that is a matter to be investigated and decided at the time of trial. 8. After bestowing my anxious consideration to B.A.No.3821 of 2024 _-:5:-_ the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that there is no specific overt act alleged against the petitioner as regards the commission of the offence under Section 307 of the IPC, that the petitioner’s custodial interrogation is not necessary and no recovery is to be effected, I hold that the petitioner is entitled to an order of pre-arrest bail; subject to the condition that he co-operates with the Investigating Officer. Hence, I am convinced that the petitioner has made out exceptional circumstances to invoke the extra-ordinary jurisdiction of this Court under Section 438 of the Code. 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. ## B.A.No.3821 of 2024 _-:6:-_ - (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. - (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; B.A.No.3821 of 2024 _-:7:-_ - (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, 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]. - (x) The observations made in this order are only for B.A.No.3821 of 2024 _-:8:-_ 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** rmm/27/5/2024