Madhu G. v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM CR** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 20TH DAY OF DECEMBER 2019 / 29TH AGRAHAYANA, 1941** ## **Bail Appl..No.9281 OF 2019** **AGAINST THE ORDER/JUDGMENT IN CMP 6428/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KADAKKAL, (TEMPORARY)** **CRIME NO.1779/2019 OF Kadakkal Police Station,Kollam** ## **PETITIONER/ACCUSED:** **MADHU.G AGED 54 YEARS S/O GANGADHARAN PILLAI,TC NO.14/2169, PALAYAM BAKKER ROAD, KERALA UNIVERSITY.P.O,THIRUVANANTHAPURAM DISTRICT.** **BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921)** ## **RESPONDENTS/STATE/COMPLAINANT:** **1 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031(CRIME NO.1779/2019 OF KADAKKAL POLICE STATION,KOLLAM DISTRICT). 2 STATION HOUSE OFFICER, KADAKKAL POLICE STATION, KOLLAM DISTRICT-691536 (CRIMEN NO.1779/2019 OF KADAKKAL POLICE STATION,KOLLAM DISTRICT).** ## **OTHER PRESENT:** ## **SRI. SAIGI JACOB PALATTY PP** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 20.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 B.A.No.9281/2019 **CR** ## **ALEXANDER THOMAS, J.** ============================ B.A. No. 9281 of 2019 ============================ Dated this the 20[th] day of December, 2019 ## O R D E R The petitioner herein has been arrayed as the sole accused in the instant Crime No.1779/2019 of Kadakkal Police Station, Kollam, which has been initially registered for offences punishable under Sections 341 and 324 of the Indian Penal code. The crime has been registered on the basis of the First Information Statement given by the defacto complainant on 7.10.2019 at about 08.48.pm in respect of the alleged incident which happened on the same day on 7.10.2019 at 11.00 am in the morning. The Police after investigation has thereafter added the offence as per Section 326 and 452 of the IPC in the abovesaid crime. 2. Brief of the prosecution case is that, the petitioner/accused aged 54 years is living in the immediate neighbourhood of the minor victim boy aged 13 years where he is residing along with his parents and that on 7.10.2019 at about 11.00am, when his mother was drying clothes and asked for the help of her son, (who is the minor victim boy in this case aged 13 years), to give the said clothes to her, the boy not only disobeyed 3 B.A.No.9281/2019 the mother but also abused the mother using bad words and the petitioner who was sitting nearby lost his control and had taken a stick (kaattukambu) and had beaten the boy on his legs and hands. The father of the minor victim boy has given the instant FIS which has been resulted in the abovesaid crime. The boy was immediately taken to the hospital and since the X-ray has disclosed that the boy has sustained a fracture on his wrist, the Police has added the offence as per Section 326 of IPC. Further, the offence as per Section 452 of the IPC has been added on the premise that the petitioner has criminally trespassed into the property of the boy's father while doing the above said Act. The petitioner/accused has been arrested this case on 13.12.2019 and he has been remanded and has been under detention since then. 3. The counsel for the petitioner would point out that the abovesaid allegations are false and baseless and further that the abovesaid allegations had been made out of misunderstandings and that even going by the prosecution case, the boy had abused his mother in extremely bad manner and that the petitioner who was sitting nearby got provoked in the spur of the moment and the act was so done. Further that it has been held by the Division Bench of the Karnataka High Court the case in, **State of Karnataka by Kakati Police Station v. Parashram** 4 B.A.No.9281/2019 **Kallappa Ghevade [2007 Cri L J 479]** and also by this Court in the decisions as in **Praveen Das v. State of Kerala & Others [2019 (4) KLT 815]** that in a case where the alleged weapon that has been used, which has led to the victim suffering grievous hurt like fracture etc, then in the absence of clear material facts like the size, thickness and sharpness of the alleged weapon like bamboo stick/firewood etc, it cannot be said that such a weapon like bamboo stick, firewood etc, can be understood as a deadly weapon which is likely to cause death as is envisaged in Section 326 of the IPC. In such cases, even if grievous hurt by way of fracture etc is caused, the serious non bailable offence as per Section 326 of IPC may not be made out and only the bailable offence as per Section 325 of IPC may be disclosed. It is pointed out that the offence as per Section 326 of IPC deals with voluntarily causing grievous hurt by dangerous weapons or dangerous means, which is a non bailable offence for which the maximum punishment would extend upto imprisonment for life, and that the said offence as per Section 326 would be a “species” which is carved out from the larger genus of the offence as per Sec.325 of the IPC, which deals with punishment for voluntarily causing grievous hurt, which is a bailable offence. That unless the prosecution can clearly establish the necessary ingredients of 5 B.A.No.9281/2019 Section 326 including the fact that the alleged weapon, the use of which has led to the victim suffering grievous hurt etc, should be a dangerous weapon which is likely to cause death or the use of which would amount to a dangerous means as envisaged in Section 326 of IPC etc. It is pointed out that in the instant case the prosecution has not given any material particulars regarding the size, thickness and sharpness of the alleged stick used in the instant case and therefore merely because the fracture is sustained by the victim, is no ground to automatically assume that the offence as per Section 326 of IPC is made out and that hence going by the above said dictum laid down in these decisions at best an offence as per Section 325 of IPC is made out, which is bailable offence. 4. Regarding the abovesaid contentions raised by the petitioner the learned Magistrate has held in the impugned Annexure-A2 order that in order to conclude whether the recovered weapon of the assault is a dangerous weapon which is likely to cause death, could be ascertained only after the conclusion of the trail and after taking evidence in the trial, and that the said aspects cannot be pressed into service for consideration of the bail application etc. 5. After hearing both sides, this Court is of the view that 6 B.A.No.9281/2019 the said approach made by the learned Magistrate is not correct and tenable. The view taken by the bail court while considering the bail application is only for the limited purpose of the consideration of the bail application, be it anticipatory or regular, as the case may be. If at the stage of consideration of bail application, the prosecution is not able to satisfy the Court with material particulars regarding the size, thickness and sharpness of the alleged weapon in order to show that it could be construed as the dangerous weapon which is likely to cause death or the use of which would amount to dangerous means etc as envisaged in Section 326 of IPC, then the benefit thereof could be given by the bail court to the accused person for the limited purpose of consideration of bail application. The said view taken by the bail court, even if it is tendered by the High Court under Section 438 CrPc, is not conclusive in the trial. The prosecution will be always at liberty to bring in more material and relevant facts regarding those aspects and then lead evidence in the trial to show on the basis of various relevant factors like size, thickness and sharpness of the alleged weapon to establish the requirements of Sec.326 of the IPC. Therefore merely because the bail court may take a view regarding the abovesaid contention in favour of the accused, does not in manner preclude or estop the prosecution from contenting 7 B.A.No.9281/2019 and proving it otherwise at the time of trial. It should also be borne in mind that the Apex Court has held in a catena of rulings more particularly in decisions as the one in _**Rakesh Kumar Paul v. State of Assam**_ [ _**(2017) 15 SCC 67]**_ that in matters of personal liberty, the courts cannot or should not be too technical. The said view has been rendered by the a three judge bench of the Apex Court while considering the impact of statutory default bail applications. 6. Hence after hearing both sides, this court is of view that the abovesaid approach taken by the learned Magistrate in totally rejecting the abovesaid contents of the petitioner, appears to be not sustainable or tenable in law. As of now, the prosecution has not been able to show with any material particulars about the size, thickness and sharpness of the stick which has been allegedly used it this case, and therefore for the limited purpose of considering this regular bail application, this court can take a view that the petitioner has made out a strong probable case that the offence that may be disclosed may not be the one as per Sec.326 of the IPC, but the one as per Sec.325 of the IPC, in view of the abovesaid aspects. But that view is tentative and only for the limited purpose of consideration of this regular bail application. And it is made clear that this will not in any manner preclude or 8 B.A.No.9281/2019 estop the prosecution from contending or proving it otherwise, but after establishing the material facts as regarding the alleged weapon as mentioned herein above. The only other non bailable offence alleged against the petitioner in this case is the one as per Sec.452 of the IPC. Even by the prosecution case, the petitioner is an immediate neighbour of the victim boy, and he was sitting or watching in the vicinity when the boy was abusing his mother, and in that process, the petitioner would have gone into the property of the victim boy's parental home. 7. Taking into account the above said overall facts and circumstances of the case , and also taking into account the fact that the petitioner has already suffered detention in this case since 13.12.2019, this Court is of the view that the the petitioner has made out a strong probable case that his continued incarceration may not be necessary, and he could be released on regular bail subject to stringent conditions. 8. The learned Prosecutor has cautioned this Court that as the petitioner is the immediate neighbour of the minor victim boy, there is every likelihood of the petitioner intimidating or influencing the witnesses including the minor victim boy, if he is let out on bail. 9. Taking note of the abovesaid serious apprehension 9 B.A.No.9281/2019 raised by the prosecution, it is ordered as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the Police Station, where the minor victim boy is residing or studying, until the conclusion of investigation process in this case, subject to certain exceptions which will be dealt with hereinafter. 10. Accordingly it is ordered in the interest of justice that the petitioner shall be released on bail on his executing bond for Rs.40,000/- and on his furnishing two solvent sureties for the like sum, both to the satisfaction of the competent court below concerned. However the grant of bail will be subject to the following conditions:- - _i. The petitioner shall appear before the Investigating Officer (I.O.) on every 2[nd] and 4[th] Saturdays, at any time between 9 am and 1 pm, for the next 3 months, and thereafter he will report before the I.O., as and when directed._ - _ii. The petitioner shall fully co-operate with the I.O., in the conduct of investigation process._ _iii. The petitioner shall not commit any offence while on bail._ - _iv. The petitioner shall not intimidate or attempt to influence the defacto complainant/victim, witnesses; nor shall he tamper with the evidence._ - _v. The petitioner shall not enter into or reside within the territorial limits of the Police Station where the minor victim boy is residing or studying until the conclusion of investigation process, except for the limited purpose of reporting_ 10 B.A.No.9281/2019 _before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyers/advocates concerned._ _vi. However if on account of any emergent personal need the petitioner wants to visit the said area, he may do so but only with the prior permission of the Investigating Officer concerned._ If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned will stand hereby empowered to consider the plea for cancellation of bail if required, and pass appropriate orders in accordance with law. With these observations and directions, the above Bail Application will stand disposed of. ## **Sd/-** ## **ALEXANDER THOMAS** **JUDGE** ska