Shinoy v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 1[ST] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2409 OF 2024 ``` ``` CRIME NO.238/2024 OF MARADU POLICE STATION, ERNAKULAM ``` ## **`PETITIONER:`** ``` SHINOY AGED 27 YEARS S/O MARTIN, CHAKKALAPARAMBIL HOUSE, AYANI NADA, MARADU P.O., ERNAKULAM, PIN - 682304 ``` ``` BY ADVS. K.S.ARUN KUMAR AMRUTHA K P AMRUTHA P S VIJAY SANKAR V.H. JERIN JOSEPH ELDHO BABY ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` SR.PUBLIC PROSECUTOR SRI.C.S.HRITHWIK ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` B.A. NO. 2409 OF 2024 ``` 2 Dated this the 1[st] day of April, 2024 ## **O R D E R** The application is filed under Sec.438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioner is the 3[rd] accused in Crime No.238/2024 of the Maradu Police Station, Ernakulam registered against the accused (three in number), for allegedly committing the offences punishable under Sections 451, 341, 323, 324 and 326 r/w Section 34 of the Indian Penal Code (in short, 'IPC'). 3. The prosecution allegation is that: on 04.02.2024 at around 15.15 hours, the accused, in furtherance of their common intention, had criminally trespassed into the residence of the defacto complainant named Vimal and they assaulted the relative of the defacto complainant named Dileep. On seeing the same, the defacto complainant attempted to intervene in the matter. Then, the petitioner and the 2[nd] accused wrongfully restrained ``` B.A. NO. 2409 OF 2024 ``` 3 the defacto complainant and his relative Jishnu and the 1[st] accused hit both of them with a helmet and both Jishnu and Vimal suffered fractures of their hands. The defacto complainant sustained a swelling on his right knee. The 1[st] accused also inflicted an injury on the right palm of the defacto complainant using a sharp edged object. Thus, the accused have committed the above offences. 4. Heard; Sri.K.S.Arun Kumar, the learned counsel appearing for the petitioner and Sri.C.S.Hrithwik., the learned Public Prosecutor. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations leveled against him. A reading of Annexure-A1 FIR would substantiate that the offence under Section 326 is only attracted against the 1[st] accused. There is no specific overt act alleged against the petitioner so as to attract the offence under Section 326 of the IPC. The only overt act alleged against the petitioner is that he along with the 2[nd] accused had wrongfully restrained the injured, so as to facilitate the 1[st] accused to commit the offence under ``` B.A. NO. 2409 OF 2024 ``` 4 Section 326 of the IPC. The petitioner's custodial interrogation is not necessary and no recovery is to be effected. Hence, the petitioner is entitled to an order of pre-arrest bail. 6. The learned Public Prosecutor opposed the application. He submitted that the investigation is in progress. The petitioner and 2[nd ] accused had facilitated the 1[st] accused to hit the injured using his helmet. The injured Jishnu and Vimal both suffered fractures. She made available the accident register cum wound certificate to substantiate the injury suffered by all the injured. She submitted that the petitioner's custodial interrogation is necessary for the proper and full investigation of the crime. Hence, the application may be dismissed. 7. The petitioner had moved a similar application before the Court of Session, Ernakulam by filing Crl.M.C.No.519/2024. By Annexure II order, the learned Sessions Judge, Ernakulam dismissed the application on the ground that the petitioner's custodial interrogation is ``` B.A. NO. 2409 OF 2024 ``` 5 necessary and the investigation is only at the preliminary stage. 8. On a careful reading of the accusations leveled in Annexure A1 FIR and the First Information Statement, it is clear that the specific overt act is alleged against the 1[st] accused, who hit the defacto complainant and the other two injured with a helmet and the two injured named Vimal and Jishnu suffered fractures on their hands. The only overt act alleged against the petitioner is that he along with the 2[nd] accused facilitated the 1[st] accused to hit the defacto complainant and the two other injured with the helmet. Therefore, prima facie, I am of the view that the offence under Section 326 of the IPC may not be attracted against the petitioner. Hence, I hold that the petitioner's custodial interrogation is not necessary and the petitioner is entitled to an order of pre-arrest bail, subject to the condition that he co-operates with the investigation. In the result, the application is allowed subject to the ``` B.A. NO. 2409 OF 2024 ``` 6 following conditions: i) The petitioner is directed to surrender before the Investigating Officer within ten days from today. ii) In the event of the petitioner's arrest, the Investigating Officer shall produce him before the jurisdictional court on the date of surrender itself. iii) On such production, the jurisdictional court shall release the petitioner on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only), with two solvent sureties for the like amount each, to the satisfaction of the jurisdictional court; iv) The petitioner shall co-operate with the investigation and make himself available for interrogation and for the purpose of investigation as and when the Investigating Officer directs; v). The petitioner shall not intimidate the witnesses or interfere with the investigation in any manner; vi). The petitioner shall not get involved in any other ``` B.A. NO. 2409 OF 2024 ``` 7 offence while on bail. vii). The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;; (viii) 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. (ix). Applications for deletion/modification of the bail conditions shall also be filed before the court below. (x) 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 petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme ``` B.A. NO. 2409 OF 2024 ``` 8 Court in **Sushila Aggarwal v. State (NCT of Delhi) and another** [2020 (1) KHC 663]. (xi) Needless to say, any observations made in this order is only for the purpose of deciding the application and the same shall not be construed as an expression on the merits of the case to be decided by the Courts. Sd/- **C.S.DIAS, JUDGE** rmm1/4/2024