High Court of KeralaSingle Judge2024-07-30Partial grant of bail: 1st petition dismissed a...

P. Dileep Kumar and Nitheesh D.S. v. State of Kerala and Ullas Chandran

Case / Petition Number:BAIL APPL. NO. 4307 OF 2024

Neutral Citation:/

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-07-30
Court Decision / Holding: 1) The application filed by the 1st petitioner/2nd accused is dismissed as infructuous. 2) The application filed by the 2nd petitioner/3rd accused is allowed, subject to conditions: surrender before IO within 10 days; bond Rs.50,000 with two solvent sureties; appearance as directed; no inducement or tampering; surrender of passport within one week; no involvement in other offences; possible cancellation of bail on violation; can seek modification of conditions; IO may, if necessary, effect recoveries as guided by the Supreme Court in Sushila Aggarwal v. State (NCT of Delhi) and another. The observations are to the extent relevant to this application only and do not express on merits.
Final Disposition: Partial grant of bail: 1st petition dismissed as infructuous; 2nd petition allowed with specified conditions.

Parties to the Case

Appellants / Petitioners

P. Dileep Kumar
Nitheesh D.S.

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala
Ullas Chandran

Legal Representation & Advocates

Counsels for Petitioners

• Latheesh Sebastian

Counsels for Respondents

• G. Ranju Mohan

Case Synopsis & Summary

This is a Kerala High Court bail application under Section 438 CrPC filed in respect of Crime No. 438/2024 registered at Pangode Police Station, Thiruvananthapuram, involving two petitioners as accused 2 and 3 and the State as respondent along with Ullas Chandran, who sought pre-arrest bail. The prosecution alleges that on 17.10.2023, in furtherance of their common intention, the accused restrained the defacto complainant; accused 1 struck the complainant with a metal block causing a fracture and injuries to the nose and forehead, accused 2 assaulted with a key causing grievous injuries, and accused 3 assisted in the commission of the offences under IPC sections 323, 324, 326 read with 34. The first petitioner/2nd accused is contended as infructuous since he has already been arrested, while the 2nd petitioner/3rd accused submitted that there is no specific overt act attributed to him and custodial interrogation is unnecessary. The State and the defacto complainant opposed bail, arguing ongoing investigation and likelihood of hampering it if released. After careful consideration of Annexure FIR and materials, the court found no specific overt act against the 2nd petitioner and held custodial interrogation unnecessary, thus allowing pre-arrest bail to the 2nd petitioner/3rd accused with conditions: surrender within 10 days, Rs.50,000 bond with two sureties, appearance as directed, no inducement or tampering, surrender of passport within a week, and prohibition from committing other offences; observed that these conditions comply with Supreme Court guidance (Sushila Aggarwal) but are restricted to the application, not merits.

Provisions of Law Cited

Section 438 of the Code of Criminal Procedure, 1973IPC Sections 323, 324, 326 and 341 r/w 34 of the IPC

Submissions & Arguments

Contentions of Appellants / Petitioners

The 2nd petitioner contends innocence and asserts there is no specific overt act against him; custodial interrogation is unnecessary and no recovery is to be effected; seeks pre-arrest bail relying on lack of direct involvement and ongoing investigation allowing the court to exercise discretionary relief under Section 438 CrPC.

Contentions of Respondents

Prosecution opposes bail, arguing that the case involves joint action by all accused with serious injuries to the complainant; investigation is in progress and release could hamper such investigation; the defacto complainant/intervener opposes bail to maintain the integrity of the ongoing investigation.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) And another	2020 (1) KHC 663	Positive	Cited as the controlling principle for bail conditions and the permissibility of IO-directed recoveries under bail, thereby supporting the imposition of conditions and investigative latitude in this case.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against P. Dileep Kumar and Nitheesh D.S. v. State of Kerala and Ullas Chandran and instantly map out authorities that support, challenge, or govern your position.

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** **TUESDAY, THE 30[TH] DAY OF JULY 2024 / 8TH SRAVANA, 1946** **BAIL APPL. NO. 4307 OF 2024** **CRIME NO.438/2024 OF Pangode Police Station,** **Thiruvananthapuram** ## **PETITIONER/S:** **1 P.DILEEP KUMAR, AGED 58 YEARS S/O DEVAKI, DEEPIKA BHAVAN, PANGODE P.O., PANGODE,THIRUVANANTHAPURAM DISTRICT, PIN - 695609 2 NITHEESH D.S. AGED 29 YEARS S/O DASS.N.,DASS BHAVAN, KANNANGODE, MANKODE, AYIRAKKUZHY, KOLLAM DISTRICT, PIN - 691559** **BY ADV LATHEESH SEBASTIAN** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031 2 ULLAS CHANDRAN, S/O CHANDRAN, CHANDRAKANDAM, ENIKKARA, THIRUVANANTHAPURAM CITY PRESENTLY RESIDING AT SREEMANGALAM, KURAVANKONAM, MUTTADA, THIRUVANANTHAPURAM CITY ( SOUGHT TO BE IMPLEADED )** **BY ADV G.RANJU MOHAN** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 30.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **C.S.DIAS,J** **------------------------------------------Bail Application No.4307 of 2024 ------------------------------------------Dated this the 30[th] day of July, 2024** ## **ORDER** The application is filed under Section 438 of the Code of Criminal Procedure, 1973 (in short, 'Code'), for an order of pre-arrest bail. 2. The petitioners are the accused 2 and 3 in Crime No.438/2024 of the Pangode Police Station, Thiruvananthapuram, which is registered against three accused persons for allegedly committing the offences punishable under Sections 323, 324, 326 and 341 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). The learned counsel for the petitioners submitted that during the pendency of the bail application, the 1[st] petitioner/ 2[nd] accused has been arrested. Therefore, the application in respect of the 1[st] petitioner may be dismissed as infructuous and the application may be confined to the 2[nd] petitioner/3[rd] accused. BAIL APPL. NO. 4307 OF 2024 3 3. The prosecution case is that: on 17.10.2023, the accused, in furtherance of their common intention, wrongfully restrained the defacto complainant and the 1[st] accused hit him with a metal block and he suffered a fracture below his left eye and injuries on his nose and forehead. The 2[nd] accused also assaulted him with a key and he suffered grievous injuries. The 3[rd] accused assisted the accused 1 and 2 to commit the above offences. Thus, the accused have committed the above offences. 4. Heard; Sri.Latheesh Sebastian, the learned counsel appearing for the petitioner, Smt.Neema T.V., the learned Public Prosecutor and Sri.Renju Mohan, the learned counsel appearing for the defacto complainant/intervenor. 5. The learned counsel for the petitioners submitted that the 2[nd] petitioner is innocent of the accusations leveled against him. There is no specific overt act alleged against the 2[nd] petitioner. The overt acts are alleged against the accused 1 and 2, who had inflicted grievous BAIL APPL. NO. 4307 OF 2024 4 injuries on the defacto complainant/intervener. The 2[nd] petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the 2[nd] petitioner may be granted an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. He also stated that all the accused had jointly assaulted the defacto complainant and he suffered serious injuries. She made available the treatment records of the injured to substantiate the nature of injuries suffered by him. She submitted that if the 2[nd] petitioner is granted an order of pre-arrest bail, it may hamper the investigation. Hence, the application may be dismissed. 7. The learned counsel for the defacto complainant/intervener also opposed the application. He submitted that if the 2[nd] petitioner is granted an order of pre-arrest bail, it would certainly sabotage the entire investigation. Hence, the application may be dismissed. 8. On an appreciation of the materials on record, especially after going through the allegations in BAIL APPL. NO. 4307 OF 2024 5 Annexure-1 FIR, it can be seen that the specific overt act of committing grievous injuries on the defacto complainant is attributed against the accused 1 and 2. The allegation against the 2[nd] petitioner/3[rd] accused is that he assisted the accused 1 and 2 in committing the above offences. 9. On an overall consideration of the facts, rival submissions made across the Bar and the materials placed on record, particularly on considering the fact that there is no specific overt act alleged against the 2[nd] petitioner/3[rd] accused, though that is a matter to be investigated and decided at the time of trial, I am of the firm view that the 2[nd] petitioner's custodial interrogation is not necessary. Hence, I hold that the 2[nd] petitioner has made out a valid ground to invoke the discretionary jurisdiction of this Court under Section 438 of the Code for an order of pre-arrest bail. Hence, I am inclined to allow the application filed by the 2[nd] petitioner. In the result: (1) The application filed by the 1[st] petitioner/2[nd] accused BAIL APPL. NO. 4307 OF 2024 6 ## is dismissed as infructuous. - (2) The application filed by the 2[nd] petitioner/3[rd] accused is allowed subject to the following conditions: - (i) The 2[nd] petitioner/3[rd] accused is directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the arrest of the 2[nd] petitioner/3[rd] accused, the Investigating Officer shall release the 2[nd] petitioner/3[rd] accused 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 2[nd] petitioner/3[rd] accused shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The 2[nd] petitioner/3[rd] accused 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; BAIL APPL. NO. 4307 OF 2024 7 - (v) The 2[nd] petitioner/3[rd] accused shall surrender his passport before the jurisdictional court concerned within 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 2[nd] petitioner/3[rd] accused 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 2[nd] BAIL APPL. NO. 4307 OF 2024 8 petitioner/3[rd] accused even while he 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** rkc/30.07.24 BAIL APPL. NO. 4307 OF 2024 9 ## **APPENDIX OF BAIL APPL. 4307/2024** ## **PETITIONER ANNEXURES** **Annexure 1 TRUE CITIZEN COPY OF THE FIR IN CRIME NO.438/2024 OF PANGODE POLICE STATION** **Annexure 2 TRUE COPY OF THE OUTPATIENT CARD ISSUED TO THE 1ST PETITIONER FROM THE FAMILY HEALTH CENTRE, MANKODE DATED 15.05.2024** ## **RESPONDENT ANNEXURES** **Annexure R2 A True copy of the FIR in 420/2024 of Pangode Police Station dated 15-05-2024 Annexure R2 B True copy of the treatment records of the de-facto complainant dated 15-05-2024. Annexure R2 C True copy of the treatment record dated 17-11-2015.**