Jaison Varghese v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` FRIDAY, THE 7[TH] DAY OF JUNE 2024 / 17TH JYAISHTA, 1946 ``` ## `BAIL APPL. NO. 4235 OF 2024` ``` CRIME NO.253/2024 OF UDAYAMPEROOR POLICE STATION, ERNAKULAM ``` ## `PETITIONER:` ``` JAISON VARGHESE AGED 48 YEARS S/O.VARGHESE ANCHUTHAIKKAL HOUSE, KARUTHY ROAD, MANAKUNNAM, UDAYAMPEROOR, ERNAKULAM, PIN – 682307 ``` ``` BY ADVS.V.S.NOWSHAD R.MURALEEKRISHNAN T.M.RESHMY BINU K.B. SITHARA.S ``` ## `RESPONDENT:` ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ## `OTHER PRESENT:` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _B.A.No.4235/2024_ ## _-:2:-_ _Dated this the 7[th] day of June, 2024_ ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioner is the first accused in Crime No.253/2024 of the Udayamperoor Police Station, Ernakulam, which is registered against the accused for allegedly committing the offences punishable under Sections 341, 324 & 326 read with Section 34 of the Indian Penal Code, 1860(in short, ‘IPC’). 3. The gist of the prosecution case is that: on 24.03.2024, at around 17.40 hours, while the de-facto complainant was travelling on his scooter, the first accused restrained him, and the accused Nos.2 & 3(the son of the first accused) hit the de-facto complainant with a cricket bat on his face and he suffered fractures ## _B.A.No.4235/2024_ ## _-:3:-_ on his scalp, nasal bone, contusions on his forehead, and other injuries. When the brother of the de-facto complainant also attempted to intervene in the matter, the second accused hit him with a cricket bat. He also suffered a fracture on his right hand. Thus, the accused have committed the above offences. 4. Heard; Sri.V.S.Nowshad, the learned counsel appearing for the petitioner and Smt. Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations levelled against him. A reading of Annexure-A6 First Information Report [FIR] would substantiate that the specific overt acts of inflicting grievous injuries on the de-facto complainant are attributed against the accused Nos.2 & 3. The only overt act alleged against the petitioner is that he had _B.A.No.4235/2024_ ## _-:4:-_ wrongfully restrained the de-facto complainant. There is a case and a counter case registered in connection with the said incident. The petitioner’s custodial interrogation is not necessary, and no recovery is to be effected. Taking into account the fact that there is no overt act against the fourth accused, by Annexure-A8 order, this Court had granted the fourth accused an order of pre-arrest bail. The petitioner is at par with the said accused. Therefore, the petitioner is entitled to a similar order. Therefore, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the accused, in furtherance of their common intention, caused grievous injuries to the de-facto complainant. She made available the treatment records of the injured, issued by the General Hospital, Ernakulam, dated _B.A.No.4235/2024_ ## _-:5:-_ 24.03.2024 to substantiate the fact that the injured had suffered a fracture on the walls of bilateral frontal and ethmoid sinus and also on anterior wall of the left maxillary sinus. She submitted that the petitioner’s custodial interrogation is necessary, and recovery is to be effected. Nonetheless, she did not dispute the fact that the specific overt acts are alleged against the accused Nos.2 & 3, to have committed the offences under Section 326 of the IPC. 8. On an evaluation of the materials on record, it can be gathered that the specific overt acts are alleged against the accused Nos.2 & 3, so as to attract the offence under Section 326 of the IPC. The allegation against the petitioner is that he facilitated the accused Nos.2 & 3 to hit the de-facto complainant. There is no allegation against the petitioner so as to attract the offence under Section 326 of the IPC. Nonetheless, _B.A.No.4235/2024_ ## _-:6:-_ that is a matter to be investigated and decided at the time of trial. 5. On an overall appreciation of the facts, the rival submissions made across the Bar, and the materials placed on record, especially on considering the fact that there is no specific overt act alleged against the petitioner to have inflicted any grievous injury on the de-facto complainant, that the petitioner’s custodial not and no interrogation is necessary, recovery is to be effected, I am firmly of the view that the petitioner has made out sufficient grounds to invoke the discretionary powers of this Court under Section 438 of the Code. Hence, I allow the application. In the result, the application is allowed subject to the following conditions: - (i) The petitioner is directed to surrender before _B.A.No.4235/2024_ ## _-:7:-_ the Investigating Officer within 10 days from today. - (ii) In the event of the petitioner’s arrest, the Investigating Officer shall release the 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; - (iii) The petitioner shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioner 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 petitioner shall surrender his passport before the jurisdictional court concerned within _B.A.No.4235/2024_ ## _-:8:-_ a period of one week from the date of his release on bail. If he has no passport, he shall file an affidavit to the effect before the said court within the said period; - (vi)The 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 petitioner _B.A.No.4235/2024_ ## _-:9:-_ even while the 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** DST/07.06.24 //True copy// P.A. To Judge