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High Court of KeralaSingle JudgeBail Granted

Raji A R and others v State of Kerala

Case / Petition Number:BAIL APPL. NO. 2352 OF 2024

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • C.S. Dias
Judgment Date
2024-06-10
Court Decision / Holding
The Court, exercising its discretion under Section 438 CrPC, grants pre-arrest bail to the petitioners subject to conditions: surrender before the Investigating Officer within 10 days; bond of Rs. 50,000 with two solvent sureties for each petitioner; appearance for interrogation as directed; no inducement or tampering with witnesses; surrender of passports within one week; refrain from other offences; and compliance with investigation, with the possibility of cancellation on violation. The order notes that the ultimate merits will be decided by the trial court and cites Sushila Aggarwal for the principle permitting ongoing investigations and recoveries while on bail. The decision records that Section 326 was incorporated later and leaves that aspect to be finally decided at trial.
Final Disposition
Bail Granted

Parties to the Case

Appellants / Petitioners

  • Raji A R
  • Binu Kumar G S
  • Sivankutty
  • Rajesh alias Krishnankutty

Respondents

  • State of Kerala, represented by Public Prosecutor, High Court of Kerala, Pin - 682031

Legal Representation & Advocates

Counsels for Petitioners

  • • Adv Nahas H.

Counsels for Respondents

  • • Smt Seetha S., Senior Public Prosecutor

Case Synopsis & Summary

This is a bail application under Section 438 CrPC before the High Court of Kerala at Ernakulam, involving four petitioners accused in Crime No.1649/2023 of Pathanapuram Police Station, Kollam: Raji A R, Binu Kumar G S, Sivankutty, and Rajesh alias Krishnankutty. The petitioners seek pre-arrest bail in respect of offences under Sections 294(b), 447, 324, 325 and 326 read with Section 34 of the Indian Penal Code, 1860. The prosecution alleges that on 18.12.2023, around 23:00, the accused, in furtherance of a common intention, went to the de facto complainant’s house and assaulted him with an unknown weapon and later with sticks, resulting in serious injuries. The petitioners contend their innocence and point to delays in FIR registration (dated 28.12.2023), inconsistencies in the Accident Register cum Wound Certificate (which initially did not name the petitioners and only named another person), and the late hospital admission (21.12.2023) with treatment records showing a fracture only on 17.01.2024. They argue custodial interrogation is unnecessary and no recoveries are required. The State counters that there are incriminating materials and custodial interrogation is essential for investigation. The court notes that Section 326 was added later and, after considering the materials and prior interim orders, is satisfied that exceptional grounds exist to exercise its discretionary power under Section 438 CrPC. It grants pre-arrest bail subject to conditions including surrender within 10 days, bonds and sureties, cooperation with police, non-tampering with evidence, passport surrender, and avoidance of other offences, while clarifying that merits will be decided later by trial court.

Provisions of Law Cited

Section 438 of the Code of Criminal Procedure, 1973Sections 294(b), 447, 324, 325 and 326 read with Section 34 of the IPC 1860

Legal Doctrines & Maxims

  • Sushila Aggarwal v. State (NCT of Delhi) and another, 2020 (1) KHC 663 (cited for authority to permit investigations and recoveries while on bail)
  • Bail is a discretionary relief under Section 438 CrPC; a bail order is not an expression on merits but a decision on the exercise of discretion
  • Observations that a Court may impose conditions on bail to ensure fair investigation and prevent abuse while on bail

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that they are innocent and the crime is frivolous. They point to the delay in FIR registration (dated 28.12.2023 for an incident on 18.12.2023) and the Accident Register cum Wound Certificate dated 19.12.2023 which does not name the petitioners (instead naming another person). The complainant’s hospital admission occurred on 21.12.2023, with fracture noted only on 17.01.2024. They argue there is no need for custodial interrogation or recoveries and request pre-arrest bail on grounds of non-cooperation by police and lack of prima facie evidence against them.

Contentions of Respondents

The State contends there are incriminating materials linking the petitioners to the offences and that custodial interrogation is necessary for proper investigation. Given the gravity and seriousness of injuries and the exposure to potentially ongoing offences, the prosecution opposes pre-arrest bail.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
Sushila Aggarwal v. State (NCT of Delhi) and another2020 (1) KHC 663PositiveCited as authority for allowing police investigations and recoveries even while the accused is on bail; supports the court’s approach to balance investigation with bail safeguards.

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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 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946** ## **BAIL APPL. NO. 2352 OF 2024** **CRIME NO.1649/2023 OF PATHANAPURAM POLICE STATION, KOLLAM PETITIONERS/ACCSUED:** - **1 RAJI A R, AGED 39 YEARS W/O BINU KUMAR,ASWATHY BHAVANAM,KURUNTHAMON,KARAVOORP.O,PIRAVANTHOOR,PAT HANAPURAM KOLLAM DISTRICT., PIN - 689695** - **2 BINU KUMAR G S, AGED 46 YEARS S/O VIJAYAN ASARI , BHAVANAM,KURUNTHAMON,KARAVOORP.O,PIRAVANTHOOR,PAT HANAPURAM KOLLAM DISTRICT., PIN - 689695** - **3 SIVANKUTTY, AGED 43 YEARS S/O SOMAN,SIVA VILASAM .CHAHCHIPUNNA PUNNALA, PIRAVANTHOOR. PATHANAPURAM KOLLAM DISTRICT, PIN - 689695** - **4 RAJESH @ KRISHNANKUTTY, AGED 41 YEARS S/O RAKHAVAN,MAYA BHAVANAM, KARAVOOR P.O,PIRAVANTHOOR,PATHANAPURAM, KOLLAM DISTRICT, PIN - 689695** **BY ADV NAHAS H.** ## **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN - 682031** ## **OTHER PRESENT:** **SR PP SMT SEETHA S** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON** **10.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** B.A.No2352 of 2024 -:2:- Dated this the 10[th ] day of June, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973(‘Code’, for the sake of brevity), for an order of pre-arrest bail. 2. The petitioners are the accused 1 to 4 in Crime No.1649/2023 of the Pathanapuram Police Station, Kollam, registered against them for allegedly committing the offences punishable under Sections 294(b), 447, 324, 325 and 326 r/w Section 34 of the Indian Penal Code, 1860. 3. The gist of the prosecution case is that: on 18.12.2023, at around 23 hours, the accused, in furtherance of their common intention, went to the house of the de facto complainant and the first accused ## B.A.No2352 of 2024 -:3:- hit the de facto complainant on his head with an unknown weapon and subsequently, the accused 1 to 5 hit the de facto complainant with sticks. The de facto complainant suffered serious injuries. Thus, the accused have committed the above offences. 4. Heard; Sri.Nahas Habeeb, the learned counsel appearing for the petitioners and Smt.Seetha S., the learned Senior Public Prosecutor. 5. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. A reading of Annexure-A1 FIR would substantiate the falsity in the crime because although the incident allegedly occurred on 18.12.2023, the FIR was registered only on 28.12.2023. Moreover, in the Accident Register cum Wound Certificate, which was issued on 19.12.2023, the de facto complainant has not named the B.A.No2352 of 2024 -:4:- petitioners, instead he has named another person named Vinu. In the said certificate, the de facto complainant has not suffered any serious injury. Subsequently, it was only on 21.12.2023 that the de facto complainant was admitted in the hospital. Thereafter, the treatment records shows that the de facto complainant suffered a fracture only on 17.1.2024. All these circumstances establish the frivolity in the crime. The petitioners' custodial interrogation is not necessary, and no recovery is to be effected. Hence, the petitioners are entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. She submitted that there are incriminating materials to substantiate the petitioners involvement in the crime. The petitioners' custodial interrogation is necessary and recovery is to be effected, if not it would B.A.No2352 of 2024 ## -:5:- hamper the investigation. Hence, the application may be dismissed. 7. In fact, the petitioners had filed a similar application for an order of pre-arrest bail as B.A.No.3/2024. When the application came up for consideration on 30.1.2024, the learned Public Prosecutor submitted that all the offences alleged against the petitioners are bailable in nature. Consequently, by Annexure A11 order, this Court dismissed the application and directed the Investigating Officer to serve notice to the petitioners under Section 41A Cr.P.C., if non-bailable offences are incorporated. 8. When this application came up for consideration on 9.4.2024, this Court taking note of the fact that the FIR was registered after ten days after the incident, that the de facto complainant was admitted in the B.A.No2352 of 2024 ## -:6:- hospital only on 21.12.2023, that the treatment certificate showing that the de facto complainant suffered a fracture is dated 17.1.2024, passed an interim order directing the Investigating Officer not to arrest the petitioners. 9. On an anxious consideration of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly the fact that initially the Investigating Officer had stated that the offence under Section 326 of the IPC was not incorporated and this Court by Annexure A11 order had closed the bail application. The fact that the offence under Section 326 of the IPC was not incorporated till 30.1.2024 is apparent from Annexure A11 order. Subsequently, the Investigating Officer has incorporated Section 326 of the IPC on the basis of the treatment certificate dated 17.1.2024, that the de facto B.A.No2352 of 2024 ## -:7:- complainant has suffered grievous hurt. It is pertinent to point out that this aspect was not brought to the notice of this Court when Annexure A-11 order was passed by this Court on 30.1.2024. 10. On an overall consideration of the facts, and the matters discussed above, I am satisfied that the petitioners have made out exceptional grounds to invoke the discretionary jurisdiction of this Court under Section 438 of the Code entitling them to an order of pre-arrest bail. Whether the offence under Section 326 of the IPC will be attracted or not is a matter to be investigated and finally decided at the time of trial. Nonetheless, I am inclined to grant the petitioners an order of pre-arrest bail, but subject to the condition that they co-operate with the Investigating Officer. In the result, the application is allowed subject to B.A.No2352 of 2024 -:8:- ## the following conditions: - (i) The petitioners are directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of petitioners' arrest, the Investigating Officer shall release the petitioners on bail on them executing a bond for Rs.50,000/(Rupees fifty thousand only) each with two solvent sureties for the like amount each; - (iii) The petitioners shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioners 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; -:9:- ## B.A.No2352 of 2024 - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of his release on bail. If they have no passports, they shall file an affidavit to the effect before said court within the said period; - (vi)The petitioners 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 B.A.No2352 of 2024 ## -:10:- powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioners even while the petitioners 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 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** rmm/10/6/2024