High Court of KeralaSingle JudgeThe 2nd petitioner/2nd accused is dismissed; Pe...

Murali, Shaji T and Vasudevan (Vasudevan alias Kuttan Swami) v. State of Kerala

Case / Petition Number:BAIL APPL. NO. 6158 OF 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2024-07-29
Court Decision / Holding
(1) The application filed by the 2nd petitioner/2nd accused is dismissed. (2) The application filed by petitioners 1 and 3 is allowed subject to: surrender before IO within 10 days; on arrest, release on bond of Rs. 50,000 with two solvent sureties of like amount; appearances as directed; no inducement or tampering; surrender of passports within one week; no involvement in other offences while on bail; potential cancellation on violation; provision for modification of bail conditions; and authorizing the IO to proceed with investigation and, if needed, recoveries, as allowed by law, citing Sushila Aggarwal. The observations are for the purpose of considering the application and do not reflect merits.
Final Disposition
The 2nd petitioner/2nd accused is dismissed; Petitioners 1 and 3 are granted bail with conditions (surrender within 10 days, bond, two sureties, appearance, no inducement, passport surrender, no new offences, and possible cancellation on violation). Observations are for the purpose of the application only and do not reflect merits.

Parties to the Case

Appellants / Petitioners

  • Murali
  • Shaji T
  • Vasudevan (Vasudevan alias Kuttan Swami)

Respondents

  • State of Kerala represented by Public Prosecutor, High Court of Kerala
  • Station House Officer, Anjal Police Station, Kollam Rural

Legal Representation & Advocates

Counsels for Petitioners

  • • Shajan C. George
  • • Vinai John
  • • Tincy Maria Scaria

Counsels for Respondents

  • • C.S. Hrithwik, Public Prosecutor

Case Synopsis & Summary

This is a Kerala High Court bail application under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) filed by three accused in Crime No.829/2024 of Anchal Police Station, Kollam. The petitioners—Murali, Shaji T and Vasudevan (also known as Kuttan Swami)—seek pre-arrest bail in a case involving offences under BNSS and Bharatiya Nyaya Sanhita, 2023 (Sections 115(2), 118(1), 126(2), 296(b) read with Section 3(5)). The prosecution alleges that on 20.07.2024, while the complainant visited the accused’s house in connection with loan matters, the 1st and 2nd accused abused and assaulted the complainant, with the 2nd accused using a key to inflict injuries, and the 3rd accused abusing others. The petitioners contend innocence, assert the incident occurred in their home, and argue that custodial interrogation is unnecessary since there is no recovery. The Public Prosecutor counters that the 2nd accused’s overt act and injuries warrant custodial interrogation and that arrest could be necessary for full investigation, supported by the accident register and wound certificate. Relying on Jai Prakash Singh, the court emphasizes that pre-arrest bail is an extraordinary privilege to be granted only in exceptional cases. After weighing the materials, the court finds prima facie material against the 2nd accused for custodial interrogation, while noting the 1st and 3rd petitioners lack a specific overt act under 118(1). The court, therefore, dismisses the 2nd petitioner’s application and allows the applications of petitioners 1 and 3 with conditions, including surrender, bonds, appearance, no tampering, passport controls, and reporting obligations. The judge clarifies that the observations are for the purpose of considering the application and do not reflect merits of the case.

Provisions of Law Cited

Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)Sections 115(2), 118(1), 126(2), 296(b) r/w Section 3(5) of Bharatiya Nyaya Sanhita, 2023 (BNS)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that they are innocent and that there is no necessity for custodial interrogation; the incident occurred at the home of the petitioners; no recoveries are required; Section 118(1) of the BNSS was unnecessarily invoked to deny bail. They contend that pre-arrest bail is an exceptional remedy and should be granted where there is no prima facie case or where custodial interrogation is unnecessary. They rely on the principle that the court should exercise judicial discretion with care, and cite the need for proper application of mind to grant bail in exceptional circumstances, with the expectation of fair investigation. They assert that the 2nd petitioner has not demonstrated a compelling reason for custodial interrogation beyond the absence of a specific overt act against petitioners 1 and 3.

Contentions of Respondents

The Public Prosecutor argues that there is a specific overt act by the 2nd petitioner—using a key to inflict injuries—supported by accident register and wound certificate; this demonstrates grievous harm and the necessity of custodial interrogation for a full investigation; arrest of the 2nd petitioner is essential to progress; the 1st and 3rd petitioners have no explicit overt act under 118(1) as charged, but the investigation will determine this at trial; granting pre-arrest bail would hamper the investigation; hence the 2nd petitioner’s bail application should be dismissed, while the 1st and 3rd petitions may be considered with cautious conditions.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Jai Prakash Singh v. State of Bihar and another(2012) 4 SCC 379PositiveCited to emphasize that an order of pre-arrest bail is an extraordinary privilege to be granted only in exceptional cases after proper application of mind.
Sushila Aggarwal v. State (NCT of Delhi) And another2020 (1) KHC 663PositiveCited to support the principle that while on bail, the Investigating Officer may continue investigations and recoveries as recognized by the Supreme Court.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **MONDAY, THE 29[TH] DAY OF JULY 2024 / 7TH SRAVANA, 1946 BAIL APPL. NO. 6158 OF 2024** **CRIME NO.829/2024 OF Anchal Police Station, Kollam** ## **PETITIONER/S:** **1 MURALI, AGED 70 YEARS S/O BHANU, MARUTHIVILA PUTHENVEEDU, KOMALAM, VADAMON P.O., ANJAL, KOLLAM, PIN - 691306 2 SHAJI T, AGED 46 YEARS S/O VASUDEVAN, MARUTHIVILA PUTHENVEEDU, KOMALAM, VADAMON P.O., ANJAL, KOLLAM, PIN - 691306 3 VASUDEVAN @ KUTTAN SWAMI, AGED 80 YEARS S/O BHANU, MARUTHIVILA PADINJATTATHIL, KOMALAM, VADAMON P.O., ANJAL, KOLLAM, PIN - 691306** **BY ADVS. SHAIJAN C.GEORGE VINAI JOHN TINCY MARIA SCARIA** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER, ANJAL POLICE STATION, KOLLAM RURAL, PIN – 691306** **SR.PP.SRI.C.S.HRITHWIK** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 29.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.S.DIAS,J** **------------------------------------------Bail Application No.6158 of 2024 ------------------------------------------Dated this the 29[th] day of July, 2024** ## **ORDER** The application filed under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS'), for an order of pre-arrest bail. 2. The petitioners are the accused 1 to 3 in Crime No.829/2024 of the Anchal Police Station, Kollam, which is registered against the accused for allegedly committing the offences punishable under Sections 115(2), 118(1), 126(2), 296(b) r/w Section 3(5) of the Bharatiya Nyaya Sanhita, 2023 (in short, 'BNS') 3. The essence of the prosecution case is that: on 20.07.2024, at around 11.30 hours, the accused, in furtherance of their common intention, when the defacto complainant had visited the house of the accused in connection with certain loan proceedings, the 1[st] accused abused him in filthy language and the 2[nd] accused BAIL APPL. NO. 6158 OF 2024 3 assaulted the defacto complainant with a key and inflicted hurt on his eye. The 3[rd] accused also abused the defacto complainant and others. Thus, the accused have committed the above offences. 4. Heard; Sri.Shaijan C.George, the learned counsel appearing for the petitioners and Sri.C.S.Hrithwik, the learned Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are innocent of the accusations leveled against them. The Investigating Officer has deliberately incorporated Section 118(1) of the BNS to deny bail to the petitioners. In fact, the incident occurred in the house of the petitioners. The petitioners' custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioners may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. He submitted that there is specific overt act alleged against the 2[nd] petitioner/ 2[nd] accused who used a key and inflicted a grievous injury on the defacto BAIL APPL. NO. 6158 OF 2024 4 complainant. He made available the accident register cum wound certificate dated 20.07.2024 issued by the Community Health Centre, Anchal to substantiate the nature of injuries suffered by the two injured. He stated that the 2[nd] accused had used a key and assaulted the defacto complainant knowing fully well that it would cause grievous injury to him. The 2[nd] accused's custodial interrogation is necessary and recovery is to be effected for the proper and full fledged investigation of the crime. If the 2[nd] petitioner is granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application in respect of the 2[nd] petitioner/2[nd] accused may be dismissed. Nonetheless, he did not dispute the fact that there is no specific overt act alleged against the petitioners 1 and 3 so as to attract the offence under Section 118(1) of the BNS, though that is a matter to be investigated and ultimately decided at the time of trial. 7. On a closer scrutiny of the materials on record, it can be gathered that there is a specific overt act alleged against the 2[nd] petitioner, who inflicted hurt on the two BAIL APPL. NO. 6158 OF 2024 5 injured which prima facie stands corroborated by the accident register cum wound certificate referred to above. However, that is matter to be investigated and decided at the time of trial. 8. 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 falsely enroped in the crime and his liberty is being misused. 9. After bestowing my anxious consideration to the facts, rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that there is prima facie material to substantiate the 2[nd] petitioner's involvement in the crime, the 2[nd] petitioner's custodial interrogation is necessary and BAIL APPL. NO. 6158 OF 2024 6 recovery is to be effected, I am not satisfied that the 2[nd] petitioner has made any convincing ground to invoke the extra ordinary jurisdiction of this Court under Section 482 of the BNSS. On the contrary, I find that there is no specific overt act alleged against the petitioners 1 and 3 so as to attract the offence under section 118(1) of the BNS. Hence, I am inclined to allow the application filed by the petitioners 1 and 3 and dismiss the application filed by the 2[nd] petitioner. In the result: (1) The application filed by the 2[nd] petitioner/2[nd] accused is dismissed. (2) The application filed by the petitioners 1 and 3/accused 1 and 3 is allowed subject to the following conditions: - (i) The petitioners 1 and 3/accused 1 and 3 are directed to surrender before the Investigating Officer within 10 days from today. (ii) In the event of the arrest of petitioners 1 and 3/accused 1 and 3, the Investigating Officer shall BAIL APPL. NO. 6158 OF 2024 7 release the petitioners 1 and 3/accused 1 and 3 on bail on them executing a bond for Rs.50,000/(Rupees fifty thousand only) with two solvent sureties for the like amount each; - (iii) The petitioners 1 and 3/accused 1 and 3 shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioners 1 and 3/accused 1 and 3 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 them from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioners 1 and 3/accused 1 and 3 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 affidavits to the effect BAIL APPL. NO. 6158 OF 2024 8 before said court within the said period; - (vi) The petitioners 1 and 3/accused 1 and 3 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 petitioners - 1 and 3/accused 1 and 3 even while they 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 BAIL APPL. NO. 6158 OF 2024 9 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** rkc/29.07.24 BAIL APPL. NO. 6158 OF 2024 10 ## **APPENDIX OF BAIL APPL. 6158/2024** ## **PETITIONER ANNEXURES** |**Annexure**|**1**|**TRUE COPY OF FIR DATED 20.07.2024 IN**| |---|---|---| |||**CRIME 829/2024 OF ANJAL POLICE STATION**| |**Annexure**|**2**|**TRUE COPY OF THE RECEIPT FOR THE**| |||**COMPLAINT DATED 20.07.2024**|