Bail Application No. 3726 of 2024

1 Bail Application No.3726 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 28[TH] DAY OF MAY 2024 / 7TH JYAISHTA, 1946 BAIL APPL. NO. 3726 OF 2024 ``` ``` CRIME NO.742/2024 OF Aluva Police Station, Ernakulam PETITIONER/S: ``` ``` 1ANEESH, AGED 37 YEARS S/O VENU, MANAYKKAPARAMBU, ELOOKKARA, MUPPATHADOM, KADUNGALLUR, ALUVA, ERNAKULAM, PIN - 683110 ``` ``` 2AJAYAN @ AJAYAKUMAR, AGED 36 YEARS S/O MURALEDHARAN, MADATHIL HOUSE, ELOOKKARA, MUPPATHADOM, KADUNGALLUR, ALUVA, ERNAKULAM, PIN - 683110 ``` ``` BY ADVS. C.Y.VINOD KUMAR MANOJ VASU ``` ## **`RESPONDENT/S:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2STATION HOUSE OFFICER , ALUVA POLICE STATION, SUB JAIL ROAD, ALUVA, ERNAKULAM, PIN - 683101 ``` ## **`OTHER PRESENT:`** ``` Sr PP Smt Neema T.V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 Bail Application No.3726 of 2024 ## **C.S.DIAS,J** ## **======================** **Bail Application No.3726 of 2024 -----------------------------------** ## **Dated this the 28[th] day of May, 2024** ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, ‘Code’), for an order of pre-arrest bail. 2. The petitioners are the accused 3 and 4 in Crime No.742/2024 of the Aluva Police Station, Ernakulam, registered against the accused (four in number) for allegedly committing the offences punishable under Sections 323, 326 and 427 read with Section 34 of the Indian Penal Code. 3. The crux of the prosecution case is that: on 23.4.2024 at around 20.30 hours, the accused, in furtherance of their common intention, wrongfully restrained the de facto 3 Bail Application No.3726 of 2024 complainant and the first accused hit him with a beer bottle and caused injuries to him. The accused 2 to 4 assisted the first accused in committing the above offences. Thus, the accused have committed the above offences. 4. Heard; Sri. C.Y Vinod Kumar, the learned counsel appearing for the petitioners and Smt. Neema T.V., the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure-A1 FIR would substantiate that the specific overt act is only alleged against the first accused so as to attract the offence under Sec.326 of the IPC. There is no material or accusation levelled against the petitioners so as to attract the said offence. The Investigating Officer has deliberately incorporated Sec.34 of the IPC to deny bail to the petitioners. The accused 1 and 2 have already been arrested and enlarged on bail. The petitioners’ custodial 4 Bail Application No.3726 of 2024 interrogation is unnecessary and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the investigation is in progress. She made available the treatment certificate of the injured/de facto complainant to show that he had suffered a fracture of the roof of orbit and was under treatment at the Government Medical College Hospital, Ernakulam. She stated that the petitioners’ custodial interrogation is necessary and recovery is to be effected. If the petitioners are granted an order of prearrest bail, it would hamper the investigation. Hence, the application may be dismissed. 7. On an evaluation of the allegations in Annexure A1 FIR, it can be gathered that the specific overt act is alleged only against the first accused, who brandished knife against the de facto complainant and caused grievous injuries to him so as to attract the offence under Sec.326 of the IPC. On a 5 Bail Application No.3726 of 2024 prima facie appreciation of the allegations, there is no specific overt act alleged against the petitioners. However, that is a matter to be investigated and decided at the time of trial. 8. After bestowing my anxious consideration to the facts, the materials placed on record and the rival submissions made across the Bar, especially after appreciating the allegations in Annexure A1 FIR, wherein there is no specific allegations made against the petitioners and the specific overt act is alleged only against the first accused, I am of the definite view that the petitioners are entitled to an order of prearrest bail since they have 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 petitioners are directed to surrender before the Investigating Officer within 10 days from today. 6 Bail Application No.3726 of 2024 (ii) In the event of the petitioners’ arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like amount each; (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. (iv) 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of his release on bail. If they have no passports, they shall file affidavits to the effect before the said court within the said period; 7 Bail Application No.3726 of 2024 (vi)The petitioners 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 the purpose of considering the application and the same shall not 8 Bail Application No.3726 of 2024 be construed as an expression on the merits of the case to be decided by competent Courts. sd/- sks/28.5.2024 **C.S.DIAS, JUDGE**