# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
# **`PRESENT`**
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THE HONOURABLE MR.JUSTICE C.S.DIAS
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MONDAY, THE 3[RD] DAY OF JUNE 2024 / 13TH JYAISHTA, 1946
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BAIL APPL. NO. 4123 OF 2024
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CRIME NO.570/2024 OF ATTINGAL POLICE STATION,
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## **`THIRUVANANTHAPURAM`**
## **`PETITIONERS/ACCUSED 3 TO 7:`**
- **`1 ANANTHU, AGED 24 YEARS`**
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S/O BINU, VARUVILA VEEDU,
KODUMON, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT, PIN - 695601
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- **`2 SUBEESH, AGED 39 YEARS`**
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S/O HARIDASAN PILLAI,
KUZHIVILAKATHU VEEDU, KODUMON, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT, PIN - 695601
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- **`3 SAJU, AGED 39 YEARS`**
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S/O SASIDHARAN NAIR, KUNJUVEEDU,
KODUMON, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT, PIN - 695601
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- **`4 SHINU, AGED 36 YEARS`**
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S/O VISWANATHAN, SHINU NIVAS,
KODUMON, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT, PIN - 695601
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## **`5 ANEESH, AGED 35 YEARS`**
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S/O CHANDRAN PILLAI, VILAYIL VEEDU,
KODUMON, ATTINGAL,
THIRUVANANTHAPURAM DISTRICT, PIN - 695601
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## **`BY ADV LATHEESH SEBASTIAN`**
B.A.No.4123 of 2024
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## **`RESPONDENT/STATE/ COMPLAINANT:`**
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STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
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## **`OTHER PRESENT:`**
## **`SR PP SMT SEETHA S`**
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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
03.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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B.A.No.4123 of 2024
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## **O R D E R**
Dated this the 3[rd] day of June, 2024
The application is filed under Section 438 of the Code of Criminal Procedure for an order of pre-arrest bail.
2. The petitioners are accused 3 to 7 in Crime No.570/2024 of the Attingal Police Station, Thiruvananthapuram, registered against the accused (seven in number) for allegedly committing the offences punishable under Sections 294(b), 323, 324, 326 and 452 r/w Section 34 of the Indian Penal Code (IPC).
3. The crux of the prosecution case is that: on 26.04.2024, at around 23.00 hours, while the defacto complainant was lying in his house, the accused, in furtherance of their common intention, trespassed into the house, and the first accused hit the defacto complainant with an iron pipe on his head, and the
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second accused punched the defacto complainant on his face. The accused 3 to 7 facilitated the accused 1 and 2 to carry out the above crime. Thus, the accused have committed the above offences.
4. Heard; Sri.Latheesh Sebastian, learned counsel for the petitioners and Smt. Seetha. S, 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 would establish that the offence under Section 326 will not be attracted against the petitioners. The specific overt act is only alleged against the accused 1 and 2. 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 the investigation in the
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case is in progress. She also stated that if the petitioners are granted an order of pre-arrest bail, it would hamper the investigation. Nonetheless, she did not dispute the fact that the specific overt act is alleged against the accused 1 and 2, who assaulted the defacto complainant and caused grievous injuries to him, so as to attract the offence under Section 326 of the IPC.
7. On an analysis of Annexure A1 FIR, it can be seen that the specific overt act is alleged against the accused 1 and 2, who have caused grievous injuries to the defacto complainant. The only allegation against the petitioners is that they had facilitated the accused 1 and 2 to commit the above crime. Nonetheless, this is a matter to be investigated and decided at the time of the trial.
8. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering the fact that the specific overt act is only alleged against the accused
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1 and 2, so as to attract the offence under Section 326 of the IPC, that the petitioners’ custodial interrogation is not necessary and no recovery is to be effected, I am of view that the petitioners have made out exceptional grounds to invoke the extra ordinary jurisdiction of this Court under Section 438 of the Code. Hence, I hold that this is a fit case to grant an order of pre-arrest bail.
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;
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
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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 him 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 their release on bail. If they have no passports, they shall file an affidavit to the effect before said court within the said period;
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
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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 be construed as an expression on the merits of the case to be decided by competent Courts.
Sd/-
mtk/03.06.24
**C.S.DIAS,JUDGE**
