Oommen K. John v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 6[TH] DAY OF OCTOBER 2021 / 14TH ASWINA, 1943 BAIL APPL. NO. 5214 OF 2021** CRIME NO. 834 OF 2021 OF MARADU POLICE STATION OOMMEN K. JOHN, AGED 33 YEARS S/O. K. A. JOHN, RESIDING AT JOHN'S VILLA, KARAMCODE P. O., CHANTHANNOOR, KOLLAM - 691 572. BY ADVS. R.N.SANDEEP KEERTHI VIJAYAN ## **PETITIONER/ACCUSED:** ## **RESPONDENTS/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. 2 THE CIRCLE INSPECTOR OF POLICE MARADU POLICE STATION, NEAR G.V.H.S.S. MARADU, ERNAKULAM - 682 304. 3 ADDL. R3 SHERLY JIMMY W/O LATE JIMMY CHERIYAN AGED 57 YEARS CHEMBAKASSERIL HOUSE .HOUSE NO.29/1655B,O.A ROAD THYKOODAM,VYTTILA,KOCHI-682019 IS IMPLEADED AS ADDL. R3 AS PER ORDER DATED 11.08.2021IN CRL.MA.1/2021. BY ADVS. P.RADHAKRISHNAN (1) BABU JOSEPH KURUVATHAZHA M.G.SREEJITH K.S.ARCHANA ## **OTHER PRESENT:** SREEJA.V- SR.PP THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: B.A.5214/2021 3 ## ORDER Dated this the 6[th] day of October, 2021 Application for pre-arrest bail. 2. The petitioner is the sole accused in Crime No. 834 of 2021 of Maradu Police Station registered for the offences punishable under Section 304 of Indian Penal Code and Section 184 of the Motor Vehicles Act. 3. The prosecution case is that, on 08.06.2021 at about 12.50 p.m., this petitioner has driven his car bearing Registration No. KL-02-AH-7928 in excessive speed through National Highway and hit on a scooter bearing Registration No. KL-01-CE-7343 and he was thrown out of the scooter and sustained grievous injuries, though rushed to the hospital, succumbed to the injuries, and thereby this petitioner has committed the aforesaid offences. 4. Initially the crime was registered under Sections 279 and 304A of the Indian Penal Code. But later, the section was B.A.5214/2021 4 altered as under Section 304 of the Indian Penal Code and Section 184 of the Motor Vehicles Act. 5. Heard the learned counsel for the petitioner, learned public prosecutor and the learned counsel for the defacto complainant. 6. The learned counsel for the petitioner would submit that the incident happened accidentally and it was only a road traffic accident. He had not committed any offence as alleged by the prosecution, but he apprehends arrest as the section has been altered and now it is under Section 304 of Indian Penal Code. 7. The learned Public Prosecutor has opposed the application. 8. The wife of the deceased, the defacto complainant, was impleaded as the 3[rd] respondent. She vehemently opposed the application contending that the petitioner was driving the car with a speed of 140 kms. per hour and was engaged in car racing as he was competing with another car plying on the very same direction, Edappally to Aroor, though the speed limit in the B.A.5214/2021 5 highway is 90 kms. per hour and there was lock down during the period. The accident occurred only because of the driving of the car in excessive speed. It is also pointed out that he is the son of a retired police officer having high influence and if he is released on bail, there is every possibility to tamper with the evidence. Therefore, the application is strenuously opposed. 9. Immediately after the incident, the injured was rushed to the hospital. But he succumbed to the injuries and it was in fact an instantaneous death. The core issue involved is whether the petitioner was driving the vehicle at a high and reckless speed through the National Highway and committed an offence of culpable homicide not amounting to murder. Whether he was having enormous speed and was competing with other vehicle as if in a car race or not, is a matter to be decided only at the time of evidence. Since it is only a bail application, there is no need to launch a detailed evaluation of the facts of the case which is a matter to be decided at the trial. Therefore, the root cause of the occurrence that he was having enormous speed and had the B.A.5214/2021 6 knowledge while driving the vehicle, that his action would endanger human life and even with that knowledge he accelerated the car and that resulted in the death of the deceased who was riding his scooter etc, are matters to be decided at the time of trial. [See **Alister Anthony Pareira** v. **State of Maharashtra** (2012) 2 SCC 648)] 10. Here, it is significant to note that initially the case was registered under Sections 279 and 304 A of IPC and the petitioner was taken into custody by the police immediately after the incident and he was released on bail. But later, after collection of the evidence, including preparation of mahazar of the place of occurrence as well the body mahazar of both the vehicles involved in the case, the section was altered to one under Section 304 of IPC and investigation is going on in that line. But the question which is to be considered in this bail application is whether custodial interrogation of the petitioner is highly essential for the investigating agency to proceed with the investigation of the case. In fact, the materials so far collected B.A.5214/2021 7 by the investigating agency are not sufficient to infer that custodial interrogation is required to proceed with the case. It appears that major portion of the material aspects required for the investigating agency had already been collected. The vehicle involved in this case has already been seized by the police. 11. Having regard to the entire facts involved in this case as well the present stage of investigation, I think that the petitioner can be directed to surrender before the Investigating Officer. Therefore, this application is disposed of directing the petitioner to surrender before the Investigating Officer on **13.10.2021** at 11 a.m. Upon his surrender, after interrogation and recording arrest, he shall be released on bail subject to the following conditions: (i) The petitioner shall execute a bond for a sum of Rs.1,00,000/- (Rupees One Lakh only) with two solvent sureties for the like sum each to the satisfaction of the Investigating Officer. B.A.5214/2021 8 (ii) He shall appear for interrogation before the Investigating Officer as and when required by him in writing. He shall cooperate with the investigation of the case. (iii) He shall not directly or indirectly, make any inducement, threat or promise 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. (iv) He shall surrender his driving licence before the investigating officer on his appearance. The investigating officer shall retain it return for a period of 2 months and then return to him. - (v) He shall not commit any offence while on bail. In case of violation of any of the above conditions, the learned Magistrate is empowered to cancel the bail in accordance with the law. Sd/- SHIRCY V JUDGE sb