Bail Applications Nos. 1327 of 2024 & 1796 of 2024; Sarath M.S. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ## **`BAIL APPL. NO. 1327 OF 2024`** ``` CRIME NO.2/2024 OF KATTOOR POLICE STATION, THRISSUR ``` ## **`PETITIONER/ACCUSED NO.1:`** ``` SARATH M.S, AGED 39 YEARS S/O.SIVARAMAN M.K, MANAMPILAKKAL HOUSE, VELLANI P.O, KARALAM (PART),THRISSUR DISTRICT, PIN - 680701 ``` ``` BY ADV NIREESH MATHEW ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 ``` ``` BY ADV SMT. NEEMA T. V. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **2** **BAIL APPL. No. 1327/2024 & 1796/2024** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945 ``` ``` BAIL APPL. NO. 1796 OF 2024 ``` ``` CRIME NO.2/2024 OF KATTOOR POLICE STATION, THRISSUR ``` ## **`PETITIONER/ACCUSED NOS.2 TO 5:`** - **`1 DINESH, AGED 34 YEARS`** - **`S/O. DASAN, PARAKKAL HOUSE, VELLANI (P.O), MANAVALASSERY, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN - 680701`** - **`2 VIMAL.P.K, AGED 24 YEARS`** - **`S/O. KUMARAN, PULLATH HOUSE, KARALAM VILLAGE, VELLANI (P.O),MUKUNDAPURAM TALUK,THRISSUR DISTRICT., PIN - 680701`** - **`3 SHINE MOHAN, AGED 36 YEARS`** - **`S/O. MOHANAN, PULLATH HOUSE,KARALAM VILLAGE, VELLANI (P.O),MUKUNDAPURAM TALUK,THRISSUR DISTRICT., PIN - 680701`** - **`4 SUJITH.K.S, AGED 33 YEARS`** - **`KARIKOOTTAM HOUSE, KARALAM VILLAGE, VELLANI (P.O),MUKUNDAPURAM TALUK,THRISSUR DISTRICT., PIN - 680701`** - **`BY ADV NIREESH MATHEW`** ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF ``` **3** ## **BAIL APPL. No. 1327/2024 & 1796/2024** ``` KERALA, ERNAKULAM, KOCHI, PIN - 682031 BY ADV. SMT. NEEMA T. V. - SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **4** ## **BAIL APPL. No. 1327/2024 & 1796/2024** ## **C.S.DIAS, J.** **-------------------------------------------------------B.A. Nos. 1327 OF 2024 & 1796 OF 2024 ------------------------------------------------------Dated this the 19[th] day of March, 2024** ## **C O M M O N O R D E R** The applications are filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, 'Code'), for orders of pre-arrest bail. 2. The petitioner in B. A. No.1327/2024 is the first accused and the petitioners in B. A. No.1796/2024 are the accused 2 to 5 in Crime No.2/2024 of the Kattoor Police Station, Thrissur, registered against the accused (seven in number) for allegedly committing the offences punishable under Sections 143, 147, 341, 324, 326, 427 and 308 read with Section 149 of the Indian Penal Code, 1860. **5** **BAIL APPL. No. 1327/2024 & 1796/2024** 3. The crux of the prosecution allegation is that, on 01.01.2024 at around 01.00 hours, the accused, in furtherance of their common intention, had formed an unlawful assembly and called the defacto complainant and his friends to the Vellani Shiva Temple and when they reached there, the accused restrained and beat the defacto complainant and his friends, with iron rod and wooden sticks. The defacto complainant suffered a fracture on his knee and an injury on his head. One of the injured had suffered a broken teeth and a fracture on his nose and another person had lost a gold chain worth Rs. 65,000/- (Rupees sixty five thousand only). Thus, the accused have committed the above offence 4. Heard; Sri. Nireesh Mathew, the learned counsel appearing for the petitioners and Smt. Neema T. V., the learned Public Prosecutor. **6** **BAIL APPL. No. 1327/2024 & 1796/2024** 5. The learned counsel for the petitioners strenuously argued that the petitioners are totally innocent of the accusations levelled against them. By any stretch of imagination can the offences under Sections 326 and 308 IPC be attracted to the facts of the case. In fact, there was case and counter case registered against the parties. The petitioners have also sustained serious injuries in the incident, as evidenced by Annexures A2 to A5 treatment records. This by itself shows that it was the defacto complainant and his friends who had assaulted the petitioners. In any given case, the petitioners’ custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners are entitled for an orders of pre-arrest bail. 6. The learned Public Prosecutor seriously opposed the applications. She submitted that the petitioners have committed a very heinous crime. They assaulted **7** ## **BAIL APPL. No. 1327/2024 & 1796/2024** the defacto complainant and his friends, who have all suffered injuries in the incident. She made available the Accident Register cum Wound Certificate of the three injured named, Akhil, Nidhin and Rohit issued by the Government Medical College, Thrissur dated 02.01.2024 and the General Hospital Irinjalakkuda dated 01.01.2024, to substantiate the nature of injuries sustained by the injured. She submitted that the Wound Certificate of the injured Akhil and Nidhin show the nature of serious injuries suffered by them. It was the first accused who used the dangerous weapons and inflicted the injuries on the injured. She submitted that the first accused’s custodial interrogation is necessary and recovery is to be effected for the proper and full investigation of the crime. If the first accused is granted an order of pre-arrest bail, it would hamper with the proper investigation of the crime. Nonetheless, she **8** ## **BAIL APPL. No. 1327/2024 & 1796/2024** conceded to the fact that the accused 2 and 3 had hit the defacto complainant and his friends with reaper stick and hands. 7. The specific allegation against the petitioners is that on 01.01.2024, they in prosecution of their common intention had formed an unlawful assembly with dangerous weapons and the first accused inflicted serious injuries on the defacto complainant and two of the injured. The accusations levelled against the first accused prima facie corroborates with the nature of injuries reflected in the Accident Register cum Wound Certificate. Thus, prima facie the allegations attributed against the first accused seem to be well founded. 8. Recently, in **Srikant Upadhyay v. State of Bihar** [2024 KHC OnLine 6137] the Honourable Supreme Court, after referring to all the earlier **9** **BAIL APPL. No. 1327/2024 & 1796/2024** decisions on the point, has observed in the following lines: “8. It is thus obvious from the catena of decisions dealing with bail that even while clarifying that arrest should be the last option and it should be restricted to cases where arrest is imperative in the facts and circumstances of a case, the consistent view is that the grant of anticipatory bail shall be restricted to exceptional circumstances. In other words, the position is that the power to grant anticipatory bail under S.438, CrPC is an exceptional power and should be exercised only in exceptional cases and not as a matter of course. Its object is to ensure that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. (See the decision of this Court in HDFC Bank Ltd. v. J.J.Mannan & Anr., 2010 (1) SCC 679). xxx xxx xxx xxx xxx 24. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the **10** **BAIL APPL. No. 1327/2024 & 1796/2024** grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. xxx xxx xxx”. 9. 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 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 **11** ## **BAIL APPL. No. 1327/2024 & 1796/2024** falsely enroped in the crime and his liberty is being misused. 10. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, materials placed on record, and on comprehending the nature, seriousness and gravity of the accusations attributed against the first accused/the petitioner in B. A. No.1327/2024, I am convinced that the first accused has not made out any exceptional grounds to invoke the extraordinary jurisdiction of this Court under Sec.438 of the Code. On the contrary, on a consideration of the accusations levelled against the petitioners/accused 2 to 5, I prima facie find that the offence under Sections 326 and 308 IPC may not be attracted as against them. Hence, I hold that they are entitled for an order of pre-arrest bail. **12** **BAIL APPL. No. 1327/2024 & 1796/2024** In the result, I. Bail Application No. 1327/2024, filed by the first accused is dismissed. Nonetheless, I direct that, if the first accused surrenders before the Investigating Officer within 10 days from today, he shall be interrogated and, thereafter, be produced before the jurisdictional Court on the date of surrender itself. Then, if the first accused moves application for bail, the jurisdictional Court shall consider the bail application on its merits. If the first accused does not surrender before the Investigating Officer as directed above, the Investigating Officer shall be free to arrest the first accused as if no order has been passed in this case. II. Bail Application No.1796/2024 filed by the accused 2 to 5 is allowed, subject to the following conditions: **13** ## **BAIL APPL. No. 1327/2024 & 1796/2024** i) The accused 2 to 5 are directed to surrender before the Investigating Officer within ten days from today; ii) In the event of the arrest of the accused 2 to 5, the Investigating Officer shall produce them before the jurisdictional court on the date of surrender itself; iii) On such production, the jurisdictional court shall release the accused 2 to 5 on bail on them executing a bond for Rs.50,000/- (Rupees fifty thousand only) each, with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The accused 2 to 5 shall co-operate with the investigation and make themselves available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; v) The accused 2 to 5 shall not intimidate witnesses **14** **BAIL APPL. No. 1327/2024 & 1796/2024** or interfere with the investigation in any manner; vi) The accused 2 to 5 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 accused 2 to 5 even while the accused 2 to 5 are on bail as laid down by the **15** **BAIL APPL. No. 1327/2024 & 1796/2024** Hon'ble Supreme Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663]** . **Sd/C.S.DIAS JUDGE** BR **16** **BAIL APPL. No. 1327/2024 & 1796/2024** ## **`APPENDIX OF BAIL APPL. 1327/2024`** ``` PETITIONER’S ANNEXURES Annexure 1TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.2/2024 OF KATTOOR POLICE STATION, THRISSUR DISTRICT DATED 01.01.2024 ``` ``` Annexure 2TRUE PHOTOCOPY OF THE REGISTRATION TICKET ISSUED BY THE EMERGENCY DEPARTMENT,GENERALHOSPITAL, IRINJALAKKUDA DATED 02.01.2024 IN RESPECT OF THE PETITIONER ``` - **`Annexure 3 TRUE PHOTOCOPY OF THE REGISTRATION TICKET ISSUED BY THE EMERGENCY DEPARTMENT, GENERAL HOSPITAL, IRINJALAKKUDA DATED 01.01.2024 ISSUED TO THE 6TH ACCUSED, AKSHAY`** - **`Annexure 4 TRUE PHOTOCOPY OF THE REGISTRATION TICKET ISSUED BY THE EMERGENCY DEPARTMENT, GENERAL HOSPITAL, IRINJALAKKUDA DATED 01.01.2024 ISSUED TO THE 7TH ACCUSED, SAYANTH`** - **`Annexure 5 TRUE PHOTOCOPY OF THE REGISTRATION TICKET ISSUED BY THE EMERGENCY DEPARTMENT, GENERAL HOSPITAL, IRINJALAKKUDA DATED 01.01.2024 ISSUED TO THE ONE OF THE OTHER INJURED/ACCUSED, SUJEESH`** ``` Annexure 6TRUE PHOTOCOPY OF THE FIR IN CRIME NO.6/2024 OF KATTOOR POLICE STATION DATED 05.01.2024 ``` ## **`RESPONDENT’S ANNEXURES: NIL`** **17** **BAIL APPL. No. 1327/2024 & 1796/2024** ## **`APPENDIX OF BAIL APPL. 1796/2024`** ``` PETITIONER’S ANNEXURES Annexure 1TRUE PHOTO COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 2/2024 OF KATTOOR POLICE STATION, THRISSUR DISTRICT DATED 01.01.2024 ``` - **`Annexure 2 TRUE PHOTOCOPY OF THE REGISTRATION TICKET ISSUED BY THE EMERGENCY DEPARTMENT, GENERAL HOSPITAL, IRINJALAKKUDA DATED 02.01.2024 IN RESPECT OF THE 1ST ACCUSED, SARATH.`** - **`Annexure 3 TRUE PHOTOCOPY OF THE REGISTRATION TICKET ISSUED BY THE EMERGENCY DEPARTMENT, GENERAL HOSPITAL, IRINJALAKKUDA DATED 01.01.2024 ISSUED TO THE 6TH ACCUSED, AKSHAY`** - **`Annexure 4 TRUE PHOTOCOPY OF THE REGISTRATION TICKET ISSUED BY THE EMERGENCY DEPARTMENT, GENERAL HOSPITAL, IRINJALAKKUDA DATED 01.01.2024 ISSUED TO THE 7TH ACCUSED, SAYANTH`** - **`Annexure 5 TRUE PHOTOCOPY OF THE REGISTRATION TICKET ISSUED BY THE EMERGENCY DEPARTMENT, GENERAL HOSPITAL, IRINJALAKKUDA DATED 01.01.2024 ISSUED TO THE ONE OF THE OTHER INJURED/ACCUSED, SUJEESH`** - **`Annexure 6 TRUE PHOTOCOPY OF THE FIR IN CRIME NO. 6/2024 OF KATTOOR POLICE STATION DATED 05.01.2024`** - **`Annexure 7 TRUE PHOTO COPY OF THE ORDER PASSED BY THE COURT OF THE SESSIONS JUDGE, THRISSUR IN CRL.M.C NO. 90/2024 DATED 27.02.2024`** ## **`RESPONDENT’S ANNEXURES: NIL`**