Jayaben @ Biju Paippadan and Roy Baisil v. State of Kerala and Kollam West Police Station and Addl.3rd Respondent Abhishek Babu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 8[TH] DAY OF MARCH 2023 / 17TH PHALGUNA, 1944 BAIL APPL. NO. 1585 OF 2023** ## **CRIME NO.110/2023 OF KOLLAM WEST POLICE STATION** ## **PETITIONERS/ACCUSED 1 AND 2:** |**1**|**JAYABEN @ BIJU PAIPPADAN**| |---|---| ||**AGED 52 YEARS**| ||**S/O BABU P BENCILY, PAYIPATTU HOUSE,**| ||**VADAKKUMBHAGOM, KOLLAM WEST P.O, KOLLAM, PIN - 691001**| |**2**|**ROY BAISIL**| ||**AGED 48 YEARS**| ||**S/O S BASIL, KRIPA, KATTUVILA PUTHUVAL,**| ||**MATHILIL P.O, KOLLAM -, PIN - 691601**| ||**BY ADV SAJU J PANICKER**| ## **RESPONDENTS/COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, PIN - 682031**| |**2**|**STATION HOUSE OFFICER**| ||**KOLLAM WEST POLICE STATION, KOLLAM WEST P.O,**| ||**KOLLAM, PIN - 691001**| |**ADDL. R3**|**ABHISHEK BABU**| ||**S/O. BABU DANIEL, VILAYIL HOUSE,**| ||**NAMBARATH MATHILIL, THRIKKADAVOOR, KOLLAM DISTRICT**| ||**IS IMPLEADED AS ADDL.3RD RESPONDENT AS PER ORDER IN**| ||**CRL.M.A.NO.1/2023 DATED 08.03.2023**| ||**BY ADVS.**| ||**NIKITA J. MENDEZ**| ||**P.M.RAFIQ**| ||**M.REVIKRISHNAN**| ||**AJEESH K.SASI**| ||**SRUTHY N. BHAT**| **2** ## **BAIL APPL. NO. 1585 OF 2023** **RAHUL SUNIL SRUTHY K.K P.VIJAYA BHANU (SR.)** **SRI.T V NEEMA,SR.PUBLIC PROSECUTOR** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BAIL APPL. NO. 1585 OF 2023** **3** ## **ORDER** Dated this the 8[th] day of March, 2023 Accused Nos.1 and 2 in crime No.110/2023 of Kollam West Police Station seek the relief of pre-arrest bail in this petition filed under Section 438 of Cr.P.C. where the prosecution alleges commission of offences punishable under Sections 294(b), 323, 324, 308, 447, 427 and 506 read with Section 149 of IPC. 2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. 3. I have perused the petition averments and the relevant documents forming part of the case diary placed by the learned Public Prosecutor. 4. The prosecution allegations run on the premise that at 12.30 pm on 15.01.2023, the accused persons, who are office bearers of 'Thuyyam Church', after forming into an unlawful assembly, armed with deadly weapons with **BAIL APPL. NO. 1585 OF 2023** **4** knowledge that they are all members of the said assembly, with intention to do away the defacto complainant, trespassed into the kiosk run by the defacto complainant and attacked him with an iron rod, due to previous animosity arose out of objection raised by the defacto complainant against the Administrative Committee of 'Thuyyam Church. The specific allegation is that the 1[st] accused abused the defacto complainant and beat him by using an iron rod and the same when evaded, the same caused swelling on his left wrist. Further, the same caused swelling on rear side of the left ear and head. The further allegation is the 2[nd] accused beat on the right knee of the defacto complainant by using a stick. The allegation against the other accused is that they also assisted the first and the second accused. The prosecution would allege further that the accused herein also destroyed the articles worth Rs.5,000/- in the shop owned by the defacto complainant. The animosity behind this crime is stated as objection raised by the defacto complainant against the **BAIL APPL. NO. 1585 OF 2023** ## **5** Administrative Committee of 'Thuyyam Church, where the defacto complainant is a member and the accused are office bearers. On this premise, the prosecution alleges commission of offences punishable under Sections 143, 147, 148, 294(b), 324 and 326 read with Section 149 of IPC. 5. The learned counsel for the petitioners pressed for anticipatory bail on the allegation that due to difference of opinion between the office bearers of the Committee and the defacto complainant, who are in rival terms, there occurred a scuffle and the petitioners never intended to do away the defacto complainant in any manner. Highlighting innocence and with offer to co-operate with the investigation, the learned counsel pursued the relief of anticipatory bail. 6. The learned counsel for the defacto complainant, (who got impleaded as an additional 3[rd] respondent in this case) strongly opposed bail, justifying the overt-acts and also pointing out the huge loss and damages caused by the petitioners herein. It is also pointed out by the learned counsel **BAIL APPL. NO. 1585 OF 2023** **6** for the defacto complainant that on 08.02.2023 also, the petitioners herein reached the shop of the defacto complainant threatened with dire consequences in the event he would proceed with the present crime and therefore, the defacto complainant apprehends further attack at the instance of the petitioners. Accordingly, the learned counsel for the defacto complainant zealously opposed grant of anticipatory bail to the petitioners. 7. The learned Public Prosecutor also opposed bail on the submission that there is specific allegation to the effect that the petitioners herein used iron rod and stick to assault the defacto complainant with intention to commit culpable homicide. As such, the learned Public Prosecutor highlighted the necessity of custodial interrogation and recovery of weapon. 8. On perusal of the FIS, the prosecution case as to attack at the instance of the first and second accused, being members of the unlawful assembly alleged to be formed for **BAIL APPL. NO. 1585 OF 2023** **7** the purpose of assaulting the defacto complainant, could be gathered. But in the wound certificate, only minor infirmities were noted including pain and swelling on post auricular region, left wrist, left index finger and low back ache. Even though the defacto complainant stated assault at the instance of the petitioners by using iron rod and stick, no serious injuries could be gathered from the wound certificate. 9. However, the apprehension expressed by the learned counsel for the defacto complainant as herein above extracted, is having force. 10. Since no custodial interrogation is necessary, I am inclined to release him on bail on conditions, and with specific direction to them to subject themselves for interrogation for the purpose of investigation and recovery of weapons, if any, at their instance and one among the conditions is the accused shall not disturb the defacto complainant, either personally or by interfering with his business in the shop room, in any manner and any such event, if reported or came to the notice **BAIL APPL. NO. 1585 OF 2023** **8** of this Court, the same alone shall be a reason to cancel the bail hereby granted. Accordingly, the bail application stands allowed and the petitioners can be enlarged on bail, on the following conditions: i. The petitioners shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question the petitioners and can recover the weapons, if any, at their instance. In the event of arrest of the petitioners, 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 the petitioners on bail, on executing bond for Rs.30,000/- (Rupees thirty thousand only) each by themselves and by two solvent sureties, each for the like sum to the satisfaction of the jurisdictional court. iii. The petitioners shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. Further they shall **BAIL APPL. NO. 1585 OF 2023** **9** appear before the Investigating Officer on all Wednesdays between 9 am and 10 am for six weeks from the date of their surrender. iv. The petitioners shall not intimidate the witnesses or interfere with the investigation in any manner. v. The petitioners shall not disturb the defacto complainant, either personally or by interfering with his business in the shop room, in any manner and any such event, if reported or came to the notice of this Court, the same alone shall be a reason to cancell the bail hereby granted. vi. The petitioners 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** nkr