Rathin M.R., Shaji @ Shaju Kumar and Jijo K.N. v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` TUESDAY, THE 4[TH] DAY OF JUNE 2024 / 14TH JYAISHTA, 1946 ``` ``` BAIL APPL. NO. 3885 OF 2024 ``` ## **`CRIME NO.558/2024 OF ATTINGAL POLICE STATION,`** ## **`THIRUVANANTHAPURAM`** ## **`PETITIONERS/ACCSUED NOS.1 TO 3:`** - **`1 RATHIN M.R AGED 36 YEARS S/O. B. RAGHU, REMYA NIVAS, KODIVACHAVILA KADUVAYIL, ATTINGAL, THIRUVANANTHAPURAM, PIN - 695101`** ``` 2SHAJI @ SHAIJU KUMAR AGED 48 YEARS S/O K.LEELAMMA, KARIMBALOOR VILA VEEDU PACHIRA, PALLIPURAM P.O PALLIPURAM, THIRUVANANTHAPURAM, PIN - 695316 3JIJO K.N AGED 36 YEARS S/O KUNJAN KODIVACHA VILA VEEDU, KADUVAYIL ATTAKULAM, ATTINGAL P.O ATTINGAL AVANANVCHERRY PART, THIRUVANNATHAPURAM, PIN - 695101 BY ADVS. M.R.SASITH R.K.CHIRUTHA NEELANJANA NAIR ANJANA SURESH.E NANMA.B.B LIDHIYA GEORGE RIYA KOCHUMMAN GAYATHRI C.H. REETHU JACOB ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR PP SMT NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.3885 of 2024 _-:2:-_ Dated this the 4[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 3 in Crime No.558/2024 of the Attingal Police Station, Thiruvananthapuram, registered against the accused for allegedly committing the offences punishable under Sections 294(b), 323, 324, 326 and 506 r/w Section 34 of the Indian Penal Code, 1860 ( in short, IPC). 3. The essence of the prosecution case is that: on 18.4.2024, the accused, in furtherance of their common intention, to attack the de facto complainant, the first accused uttered obscene words against him and hit on the head of the de facto complainant with a pipe. The accused 2 and 3 also fisted the de facto complainant on different parts of his body and B.A.No.3885 of 2024 _-:3:-_ facilitated the first accused to commit the offence. Thus, the accused have committed the above offences. 4. Heard; Sri. M.R.Sasith, the learned counsel appearing for the petitioners and Smt. Neema T.V., 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 that the offence under Section 326 of the IPC is not attracted. The Investigating Officer has deliberately incorporated the said offence, to deny bail to the petitioners. In any given case, the specific overt act is alleged against the first accused, who hit on the head of the de facto complainant with an iron road and caused injuries to him. However, there is no specific overt act alleged against the petitioners 2 and 3/ accused 2 and 3. Therefore, the petitioners 2 and 3 are entitled to an B.A.No.3885 of 2024 _-:4:-_ order of pre-arrest bail, since their custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor seriously opposed the application. She submitted that a reading of Annexure A1 FIR would show that there is a specific overt act alleged against the first accused, who hit the de facto complainant with an iron rod and inflicted grievous injuries to him, which attracts the offence under Section 326 of the IPC. Nonetheless, she did not dispute the fact that there is no specific overt act alleged against the accused 2 and 3 so as to attract the offence under Section 326 of the IPC. 7. On an evaluation of the materials on record, especially Annexure A1 FIR, it can be seen that the specific overt act is alleged against the first accused, who allegedly hit the de facto complainant with an iron rod and the de facto complainant suffered grievous B.A.No.3885 of 2024 _-:5:-_ injuries. 8. After bestowing my anxious consideration to the facts, the rival submissions made across the Bar, and the materials placed on record, particularly after evaluating the allegations in Annexure A1 FIR, I am of the view that it is only the first accused who allegedly hit the de facto complainant with an iron rod so as to attract the offence under Section 326 of the IPC. Nonetheless, that is a matter to be investigated and decided after trial. In view of the specific allegation attributed against the first accused, he is not entitled to an order of pre-arrest bail. On the contrary, I find that there is no specific overt act alleged against the petitioners 2 and 3, so as to attract the offence under Section 326 of the IPC. Therefore, I am inclined to partly allow the application, by dismissing the application filed by the first petitioner and allowing the application filed by the petitioners 2 and 3. B.A.No.3885 of 2024 _-:6:-_ In the result, - (a) The application filed by the first petitioner is - dismissed. - (b) The application filed by the petitioners 2 and 3 - are allowed subject to the following conditions: - (i) The petitioners 2 and 3 are directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the arrest of the petitioners 2 and - 3, the Investigating Officer shall release the petitioners 2 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 2 and 3 shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. - (iv) The petitioners 2 and 3 shall not directly or indirectly make any inducement, threat or B.A.No.3885 of 2024 _-:7:-_ 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 2 and 3 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 2 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 B.A.No.3885 of 2024 _-:8:-_ 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 2 and 3 even while the petitioners 2 and 3 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]. SD/- ## **C.S.DIAS,JUDGE** rmm/4/6/2024