BAIL APPLICATION NO. 1719 OF 2023 (Varkey, Deepak A. Varghese and Dilna A. Varghese v. State of Kerala and Thamarassery Police Station)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 7[TH] DAY OF MARCH 2023 / 16TH PHALGUNA, 1944 ``` ``` BAIL APPL. NO. 1719 OF 2023 CRIME NO.117/2023 OF THAMARASSERY POLICE STATION, ``` ## **`KOZHIKODE`** ## **`PETITIONER/S:`** - **`1 VARKEY AGED 63 YEARS KUZHUVANAL, KATTIPPARA AMSOM, DESOM, THAMARASSERY TALUK, KOZHIKODE DISTRICT, PIN - 675573`** - **`2 DEEPAK A. VARGHESE AGED 29 YEARS KUZHUVANAL, KATTIPPARA AMSOM, DESOM, THAMARASSERY TALUK, KOZHIKODE DISTRICT, PIN - 675573`** - **`3 DILNA A. VARGHESE AGED 23 YEARS KUZHUVANAL, KATTIPPARA AMSOM, DESOM, THAMARASSERY TALUK, KOZHIKODE DISTRICT, PIN - 675573 BY ADV SHEJI P.ABRAHAM`** ## **`RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031`** - **`2 STATION HOUSE OFFICER THAMARASSERY POLICE STATION KOZHIKODE, PIN - 673573`** - **`*ADDL R3 SUNNY JOSEPH S/O. JOSEPH, MULAVELIKKUNNEL, KELANMOOLA, CHAMAL, KOZHIKODE DISTRICT *ADDL R3 IMPLEADED AS PER ORDER DATED 07.03.2023 IN CRL.M.A.NO.1 OF 2023`** BA No. 1719 of 2023 2 ``` BY ADVS. MATHEW KURIAKOSE K.R.ARUN T.G.SUNIL (PERUMBAVOOR) J.KRISHNAKUMAR (ADOOR) C.N.PRAKASH MONI GEORGE SHAJI P.K. ``` ``` BY ADV.T V NEEMA SR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` BA No. 1719 of 2023 3 ## **A.BADHARUDEEN, J.** ## **----------------------------------------------BAIL APPL. No.1719 of 2023 ----------------------------------------------Dated this the 7[th] day of March, 2023.** ## **O R D E R** Anticipatory bail plea at the instance of petitioners 1 to 3 who apprehend arrest in Crime No.117/2023 of Thamarassery Police Station is the matter in consideration in this petition filed under Section 438 of Cr.PC. 2. Heard. Perused the records placed by the learned counsel for the petitioners, the learned counsel for the defacto complainant as well as the case diary along with the wound certificate and the treatment records. 3. The prosecution allegation is that at about 16.40 hrs on 18.02.2023, accused Nos.1 and 2 after sharing common intention caused hurt to defacto complainant with the intention BA No. 1719 of 2023 4 to commit culpable homicide not amounting to murder. On this occurrence, the defacto complainant sustained serious injuries, though he survived. The learned counsel for the petitioners would submit that the petitioners are innocent and the entire allegations are false. The learned counsel would submit that as on 18.02.2023, the defacto complainant along with his men assaulted the petitioners herein and for which Crime No.157/2022 of Thamarassery Police Station alleging commission of offences punishable under Sections 447, 341, 323, 324 and 326 r/w Section 34 of the IPC was registered. Where the defacto complainant herein got arrayed as 1[st] accused, Balakrishnan, Jayesh and Biju got arrayed as accused Nos.2 to 4. When they moved anticipatory bail before this court, this court allowed anticipatory bail to accused Nos.2 to 4 therein while dismissing anticipatory bail plea at the instance of the 1[st] accused/1[st] petitioner in B.A.No.3343/2022. Thereafter, the defacto complainant herein /1[st] accused in the above crime was arrested and detained in custody though he was released subsequently on bail. BA No. 1719 of 2023 5 4. It is pointed by the learned counsel for the petitioners further that on the date of occurrence in this crime, infact, the defacto complainant assaulted the 3[rd] petitioner and caused injuries, for which a complaint was lodged, based on which crime also was registered vide Crime No.120/2023, though the copy of FIR in the said crime is not available before this court. In substance, the argument of the learned counsel for the petitioners is that this crime was registered without bonafides and the 1[st] petitioner owns 3 acres of land and one Mathew, the brother of the 1[st] petitioner raised claim and the same is the subject matter of a civil suit viz. O.S.No.244 of 2021 pending before the Munsiff's Court, Thamarassery where an interim order of prohibitory injunction also was passed against the brother of the 1[st] petitioner. According to the learned counsel, since the defacto complainant was detained in connection with Crime No.157/2022, in order to wreck vengeance and detain the petitioners, a false case is foisted where admittedly civil suit in between 1[st] petitioner and his brother has been pending and the defacto complainant herein BA No. 1719 of 2023 6 is a henchman of the brother of the 1[st] petitioner. It is pointed out by the learned counsel for the petitioners further that the 2[nd] petitioner is a person suffering from leukemia starting from 2014 and has been on treatment and therefore the allegation against the 2[nd] petitioner is not even believable. On this premise, the learned counsel pursued the relief of pre-arrest. 5. The learned Public Prosecutor opposed the bail and placed documents showing the involvement of 1[st] and 2[nd] petitioners who were arrayed as accused Nos.1 and 2 in this crime, while submitting that the 3[rd] petitioner is not arrayed as accused in this crime. The learned Public Prosecutor submitted that as per the medical records including the copy of the wound certificate and CT Scan report collected by the Investigating Officer as on 18.02.2023 at about 18.37hrs Sunny Joseph/defacto complainant reached before the Medical Officer, Taluk Hospital, Thamarassery and therein the injuries were noted with advise to have CT Scan examination and the patient was referred to higher centre. Fractures to the defacto complainant as could be read out from the CT Scan dated BA No. 1719 of 2023 7 18.02.2023 is available in the case diary. Accordingly, highlighting the necessity of arrest, custodial interrogation and recovery, the learned Public Prosecutor opposed the bail. 6. The learned counsel for the defacto complainant also strongly opposed the bail. He has placed additional documents in the form of treatment certificate supporting the prosecution case and the same would include the CT Scan report as well as an OP Ticket issued from the Government Taluk Hospital on 20.02.2023 at about 09.47 am. 7. I have gone through the FIS in this crime, where it is stated that the brother of Mathew and his son Deepak wrongfully restrained the defacto complainant at 4.40pm on 18.02.2023 when he was on the way. The specific allegation is that Varkey used an iron rod and beat on the head of the defacto complainant and the same caused injuries. Thus, in the FIS there is no whisper regarding use of any weapon by the 2[nd] accused. 8. Though it is argued by the learned counsel for the petitioners relying on Annexure R3(b) OP Ticket showing the BA No. 1719 of 2023 8 date 20.02.2023 at 09.47 am, the defacto complainant falsely created the OP Ticket to show the treatment since he reached the hospital only after two days of occurrence, the case diary contains copy of the wound certificate prepared immediately after the occurrence at 6.37 pm on 18.02.2023 and the following injuries noted therein. (i) lacerated wound over parietal area of skull 7cm x 0.5cm x 0.5 cm - (ii) contusion over occipital area of skull 4x4cm - (iii) contusion over left forearm 2x2cm He was referred to higher centre with an advise to have CT head. On CT analysis, it was found that he sustained undisplaced fracture involving left parietal bone as described. In Annexure R3(b) OP Ticket also, CT Scan study and fracture as noted in the CT Scan report are reiterated. 9. Although it is argued by the learned counsel for the petitioners that Annexure A5 complaint was filed by the 1[st] petitioner’s daughter and crime also was registered, no documents were placed to see any serious infirmity to the BA No. 1719 of 2023 9 petitioners herein or their treatment in consequence of such infirmities. Per contra, the documents available herein would show that 1[st] accused/1[st] petitioner herein assaulted the defacto complainant by using an iron rod and the same caused undisplaced fracture involving left parietal bone. Therefore, the allegations against the 1[st] accused/1[st] petitioner is established prima facie by the medical documents and therefore the complicity as alleged against the 1[st] accused/1[st] petitioner warrants arrest, custodial interrogation and recovery of the iron rod at his instance to accomplish meaningful investigation as well as eventful prosecution. However the 3[rd] petitioner herein is not arrayed as an accused and the complicity of the 2[nd] petitioner who has been suffering from leukemia is much less and prosecution has no case that he did use any weapon also. Therefore, I am inclined to dismiss the anticipatory plea of the option of the 1[st] accused/ 1[st] petitioner while allowing the same in favour of petitioners 2 and 3. In the result, anticipatory bail plea at the instance of the 1[st] accused/1[st] petitioner stands dismissed, petitioners 2 BA No. 1719 of 2023 10 and 3 stands allowed on the following conditions. - i. Petitioners 2 and 3 shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioners. In the event of their arrest, the Investigating Officer shall produce the petitioners before the jurisdictional court on the date of arrest itself. - ii. On such production, the jurisdictional court shall release them on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only), by themselves and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court. - iii. Petitioners 2 and 3 shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the BA No. 1719 of 2023 11 Investigating Officer directs so. - iv. Petitioners 2 and 3 shall not, intimidate the - witnesses or interfere with the investigation in any manner. - v. Petitioners 2 and 3 shall not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted. **Sd/-** ## **A.BADHARUDEEN, JUDGE.** Mn BA No. 1719 of 2023 12 ## **`APPENDIX OF BAIL APPL. 1719/2023`** ## **`PETITIONER ANNEXURES`** - **`Annexure 1 COPY OF THE BAIL ORDER DTD 3.6.2022 IN BAIL APPLICATION NO. 3343 OF 2022`** - **`Annexure 2 COPY OF THE WOUND CERTIFICATE OF THE 1ST PETITIONER DTD 18.2.2023 RECEIVED FROM THE GOVERNMENT TALUK HOSPITAL, THAMARASSERY`** - **`Annexure 3 COPY OF THE WOUND CERTIFICATE OF THE 2ND PETITIONER DTD 18.2.2023 RECEIVED FROM THE GOVERNMENT TALUK HOSPITAL, THAMARASSERY`** - **`Annexure 4 COPY OF THE WOUND CERTIFICATE OF THE 3RD PETITIONER DTD 18.2.2023 RECEIVED FROM THE GOVERNMENT TALUK HOSPITAL, THAMARASSERY`** - **`Annexure 5 COPY OF THE COMPLAINT DTD 18.2.2023 FILED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT.`** - **`RESPONDENT ANNEXURES Annexure R3 TRUE COPY OF THE FIR IN CRIME NO. 117/2023 OF THAMARASSERY POLICE STATION IN KOZHIKODE DISTRICT`** - **`Annexure R3(a) TRUE COPY OF THE C.T. SCAN REPORT DATED 18.02.2023 ISSUED BY THE GOVT. MEDICAL COLLEGE, KOZHIKODE IN RESPECT OF THE PETITIONER, SUNNY`** - **`Annexure R3(b) TRUE COPY OF THE O.P. TICKET DATED 20.02.2023 ISSUED BY THE GOVT. TALUK HOSPITAL, THAMARASSERY IN RESPECT OF THE PETITIONER, SUNNY`** - **`Annexure R3(c) TRUE COPY OF THE FIR IN CRIME NO. 275/2018 OF THAMARASSERY POLICE STATION IN KOZHIKODE DISTRICT`** BA No. 1719 of 2023 13 ``` Annexure R3(d)TRUE COPY OF THE FIR IN CRIME NO. 146/2022 OF THAMARASSERY POLICE STATION IN KOZHIKODE DISTRICT Annexure R3(e)TRUE COPY OF THE FIR IN CRIME NO. 360/2021 OF THAMARASSERY POLICE STATION IN KOZHIKODE DISTRICT Annexure R3(f)TRUE COPY OF THE FIR IN CRIME NO. 157/2022 OF THAMARASSERY POLICE STATION IN KOZHIKODE DISTRICT ```