BAIL APPL. NO. 5584 OF 2024

``` 2024:KER:59921 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 5584 OF 2024 1`** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 7[TH] DAY OF AUGUST 2024 / 16TH SRAVANA, 1946 BAIL APPL. NO. 5584 OF 2024** **CRIME NO.599/2024 OF KUNNICODE POLICE STATION, KOLLAM** ## **PETITIONERS** : - **`1 MANU M AGED 32 YEARS S/O. G MOHANAN PILLAI, M.M. NIVAS, VILLOOR, VETTIKAVALA, KOLLAM, KERALA, PIN - 691538`** ``` 2MANU M AGED 32 YEARS S/O G MOHANAN PILLAI, M M NIVAS, VILLOOR, VETTIKAVALA, KOLLAM, PIN - 691538 ``` ``` BY ADVS. SINU.G.NATH DEEPA DEVI C. ``` ## **RESPONDENTS** : - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031`** - **`2 STATION HOUSE OFFICER KUNNIKODE POLICE STATION, KOLLAM RURAL DISTRICT , KOTTARAKARA, PIN - 691508`** ## **OTHER PRESENT:** ``` SR PP SMT SEETHA S ``` **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.08.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ``` 2024:KER:59921 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 5584 OF 2024 2`** Dated this the 7[th] day of August,2024 ## **O R D E R** The application is 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.599/2024 of the Kunnicode Police Station, Kollam Rural, which is registered against them for allegedly committing the offences punishable under Sections 452, 294(b), 323, 326 and 506 r/w Section 34 of the Indian Penal Code. 3. The essence of the prosecution case is that: on 24.05.2024, at around 16.00 hours, the accused, in furtherance of their common intention, trespassed into the house of the de facto complainant and abused him in filthy language, and then the first accused (Manu) hit the de facto complainant on his head with a helmet **==> picture [58 x 57] intentionally omitted <==** **==> picture [102 x 9] intentionally omitted <==** **----- Start of picture text -----**<br> 2024:KER:59921<br>**----- End of picture text -----**<br> ## **`BAIL APPL. NO. 5584 OF 2024 3`** and with a brick and he suffered a nasal bone fracture. Thus, the accused have committed the above offences. 4. Heard; Sri.Sinu G. Nath, the learned counsel appearing for the petitioners and Smt. Seetha S., the learned Senior Public Prosecutor. 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, to see that the petitioners are not granted bail. A reading of the FIR would show that there are no materials to substantiate that the petitioners have committed the offence under Section 326 of the IPC. The petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to show that it was the first accused **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:59921 ``` ## **`BAIL APPL. NO. 5584 OF 2024 4`** (Manu)who assaulted the de facto complainant and he suffered a nasal bone fracture. She made available the treatment records of the de facto complainant issued by the Medical College Hospital, Thiruvananthapuram dated 25.5.2024, which prima facie establishes that the de facto complainant has suffered a nasal bone fracture as reflected in CT scan report. She stated that it is only due to the overt act of the first accused that the de facto complainant has suffered the above fracture. The first accused’s custodial interrogation is necessary and recovery is to be effected for the full fledged investigation of the crime. On the contrary, she stated that there is no specific allegation made against the second accused (Manoj) so as to attract the offence under Section 326 of the IPC. 7.In **Jai Prakash Singh v. State of Bihar and another** [(2012) 4 SCC 379], the Hon’ble Supreme Court has held that, an order of pre-arrest bail being an extra ordinary privilege, should be granted only in **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:59921 ``` ## **`BAIL APPL. NO. 5584 OF 2024 5`** exceptional cases. The judicial discretion conferred upon the Courts has to be properly exercised, after proper application of mind, to decide whether it is a fit case to grant an order of pre-arrest bail. The court has to be prima facie satisfied that the applicant has been falsely enroped in the crime and his liberty is being misused. 8. On an overall consideration of the facts, rival submissions made across the Bar and the materials placed on record, particularly after going through the treatment records of the de facto complainant, wherein it is seen that the de facto complainant suffered a nasal bone fracture and the specific overt act alleged against the first accused, who has allegedly hit the de facto complainant with a helmet and a brick and finding that the first accused’s custodial interrogation is necessary and recovery is to be effected, I am not satisfied that the first accused has made out any valid ground to invoke the extraordinary **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:59921 ``` ## **`BAIL APPL. NO. 5584 OF 2024 6`** jurisdiction of this Court under Section 438 of the Code. Hence, I hold that the first accused is not entitled for an order of pre-arrest bail. On the contrary, since there is no specific overt act alleged against the second accused, so as to attract the offence under Section 326 of the IPC, I am satisfied that he has made out cogent grounds to invoke the extraordinary jurisdiction of this Court. In the result, (a) The application filed by the first petitioner/first accused (Manu) is dismissed. Nonetheless, I direct that, if the first petitioner surrenders before the Investigating Officer within one week from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the first petitioner moves an application for bail, the jurisdictional Court shall, consider the bail application on its merits. If the first petitioner does not surrender **==> picture [58 x 57] intentionally omitted <==** ``` 2024:KER:59921 ``` ## **`BAIL APPL. NO. 5584 OF 2024 7`** before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the petitioner as if no order has been passed in this case. (b) The application filed by the second petitioner/second accused (Manoj) is allowed, subject to the following conditions: - (i)The second petitioner is directed to surrender before the Investigating Officer within ten days from today. - (ii) In the event of the second petitioner's arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself. - (iii) On such production, the jurisdictional court shall release the second 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, to the satisfaction of the jurisdictional court; - (iv)The second petitioner shall co-operate with the investigation and make himself available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; - (v) The second petitioner shall not intimidate the witnesses or interfere with the investigation in any manner; ``` 2024:KER:59921 ``` **==> picture [58 x 57] intentionally omitted <==** ## **`BAIL APPL. NO. 5584 OF 2024 8`** - (vi) The second 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 second petitioner even while the second 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** rmm/7/8/2024