# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`**
## **`PRESENT`**
## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`**
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THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945
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## **`BAIL APPL. NO. 1752 OF 2023`**
## **`AGAINST THE ORDER/JUDGMENT IN CRMC 134/2023 OF DISTRICT COURT & SESSIONS COURT,THODUPUZHA`**
## **`PETITIONER/ACCUSED NOS. 1 TO 3:`**
- **`1 SABU ABRAHAM AGED 49 YEARS`**
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S/O. ABRAHAM, THURUTHIPALLIL HOUSE,
MUNDANMUDI P.O., VANNAPPURAM,
IDUKKI DISTRICT., PIN - 685607
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- **`2 SIBICHAN ABRAHAM AGED 52 YEARS`**
- **`S/O. ABRAHAM, THURUTHIPALLIL HOUSE, MUNDANMUDI P.O., VANNAPPURAM, IDUKKI DISTRICT., PIN - 685607`**
- **`3 ALBIN SIBY AGED 21 YEARS S/O SIBICHAN, THURUTHIPALLIL HOUSE, MUNDANMUDI P.O., VANNAPPURAM, IDUKKI DISTRICT., PIN - 685607`**
- **`BY ADVS. KURIAN ANTONY MATHEW SANTHOSH MATHEW ARUN THOMAS ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL MATHEW NEVIN THOMAS KARTHIK RAJAGOPAL`**
## **`RESPONDENT/STATE:`**
## **`STATE OF KERALA`**
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REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
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## **`OTHER PRESENT:`**
## **`P G MANU SRPP`**
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THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON
23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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BAIL APPL. NO. 1752 OF 2023
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## **ORDER Dated this the 23[rd] day of March, 2023**
This is a petition filed under Section 438 of the Code of Criminal Procedure, seeking pre-arrest bail and the petitioners are accused Nos. 1 to 3 in Crime No. 18/2023 of Kaliyar Police Station, Idukki.
2. Heard the learned counsel for the petitioners as well as the learned Public Prosecutor. Perused the relevant materials forming part of the case diary produced by the learned Public Prosecutor.
3. The prosecution allegation is that, on 07.01.2023, the petitioners herein along with Sri. Shinaj P.R. ( the brother of the defacto complainant herein) consumed alcohol jointly in connection with the festival of Mundanmudi Church. Thereafter, there occurred a scuffle. The prosecution allegation further is that, thereafter the accused herein brought Sri. Shinaj P.R. in front of the house of the 1[st] accused with intention to cause grievous hurt. The specific allegation is that Sabu used a cable wire and beat on the face
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and eye of the above Sri. Shinaj P.R. It is alleged that the 3[rd] accused beat on the abdomen of the defacto complainant by using a reaper. Recording the statement of the brother of Sri. Shinaj P.R. crime alleging commission of offences punishable under Sections 323, 324 and 326 read with Section 34 of IPC was registered.
4. The learned counsel for the petitioners submitted that the petitioners are innocent and the allegations are false. The learned counsel for the petitioners also submitted that there is case and counter case in this matter. As per Annexure-A2 FIR, crime No. 17/2023 of Kaliyar Police Station was registered alleging commission of offences punishable under Sections 447, 229, 323, 427 read with Section 34 of the IPC.
5. Highlighting case and counter case and the manner in which the prosecution case runs, the learned counsel for the petitioners pressed for grant of anticipatory bail, with offer to co-operate with the investigation.
6. The learned Public Prosecutor strongly opposed grant of bail, mainly relying on the copy of wound certificate
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in relation to Shinaj P.R. showing “displaced fracture involving bilateral nasal bone, right frontal process of maxillary and bony nasal septa”. The learned Public Prosecutor highlighted the necessity of arrest, custodial interrogation and recovery of weapon at the instance of the petitioners.
7. On perusal of the prosecution records, it is discernible that crime was registered, acting on the FIS, given by the brother of the injured (Sri. Shinaj P.R). The case diary contains the statements given by the injured, wherein the allegations are narrated with certainty. The allegation is that Sabu beat on the face and eye of Sri. Shinaj P.R. by using a cable wire like weapon. It is alleged further that the 3[rd] accused also beat on the abdomen of the defacto complainant. On perusal of the wound certificate “displaced fracture involving bilateral nasal bone, right frontal process of maxillary and bony nasal septa” were noted. It appears that fracture is the contribution of the 1[st] accused. But no serious injuries noted in the abdomen of Sri. Shinaj P.R. In fact, Sri. Shinaj P.R. sustained very serious injuries as above which led
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to registration of this crime alleging commission of offence under Section 326 of the IPC also among other offences. In such a case, arrest, custodial interrogation and recovery of the weapon at the instance of the 1[st] accused/1[st] petitioner is necessary and mere registration of counter case involving bailable offences, shall not by itself is a ground to disbelieve the allegations in this crime at the extreme primitive stage of investigation. As far as the other accused are concerned, the overt acts are much less and therefore, there can be enlarged on anticipatory bail.
8. In the result, bail plea at the instance of the 1[st] petitioner/ 1[st] accused stands dismissed.
Bail plea at the instance of petitioners 2 and 3 stands allowed. Petitioners 2 and 3/accused Nos. 3 and 4 are enlarged on bail on conditions:
i. The petitioners 2 and 3/accused Nos. 3 and 4 shall surrender before the Investigating Officer within ten days from today and on such surrender, the Investigating Officer can question petitioners 2 and 3/accused Nos. 3 and 4 and record their statements, if necessary. In the event of their
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arrest, the Investigating Officer shall produce them before the Jurisdictional Court on the date of arrest itself.
ii. On such production, Jurisdictional Court shall release petitioners 2 and 3/accused Nos. 3 and 4 on bail, on executing bond for Rs.30,000/- (Rupees Thirty thousand) each, by them and by two sureties, each for the like sum to the satisfaction of the Jurisdictional Court.
iii. The petitioners 2 and 3/accused Nos. 3 and 4 shall co-operate with investigation and shall be made available for interrogation and for the purpose of investigation, as and when the Investigating Officer directs so. They shall meet the Investigating Officer for a period of one month on every Monday in between 9.00 am to 1.00 pm, without fail.
iv. The petitioners 2 and 3/accused Nos. 3 and 4, shall not, intimidate the witnesses or interfere with the investigation in any manner.
v. The petitioners 2 and 3/accused Nos. 3 and 4 shall not leave India without the prior permission of the jurisdictional Court.
vi. The petitioners 2 and 3/accused Nos. 3 and 4 shall
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not commit any offence during currency of this bail and any such involvement is a reason to cancel the bail hereby granted.
**Sd/A. BADHARUDEEN JUDGE**
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BAIL APPL. NO. 1752 OF 2023
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## **`APPENDIX OF BAIL APPL. 1752/2023`**
## **`PETITIONER ANNEXURES :`**
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Annexure-ITHE TRUE COPY OF THE FIR DATED 09-01-2023
ALONG WITH FIS IN CRIME NO. 18/2023 OF THE
KALIYAR POLICE STATION.
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Annexure-IIA TRUE COPY OF THE FIR DATED 09-01-2023 ALONG
WITH FIS IN CRIME NO. 17/2023 OF THE KALIYAR
POLICE STATION.
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Annexure-IIIA TRUE COPY OF THE WOUND CERTIFICATE DATED
09-01-2023 ISSUED TO THE 1ST PETITIONER BY
THE DOCTOR IN IDDUKI DISTRICT COOPERATIVE
HOSPITAL.
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Annexure-IVA FREE COPY OF THE ORDER OF THE SESSIONS
JUDGE, THODUPUZHA, DISMISSING THE BAIL
APPLICATION NUMBERED AS
CRIMINAL.M.C.NO.134/2023 DATED 20-02-2023.
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// True Copy // PA To Judge
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