Soumya and Thankamma v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` THURSDAY, THE 18[TH] DAY OF JULY 2024 / 27TH ASHADHA, 1946 ``` ## **`BAIL APPL. NO. 5335 OF 2024`** ``` CRIME NO.366/2024 OF CUMBUMMETTU POLICE STATION, IDUKKI ``` ``` AGAINST THE ORDER DATED 30.05.2024 IN Crl.MC NO.436 OF 2024 OF DISTRICT COURT & SESSIONS COURT, THODUPUZHA ``` ``` PETITIONERS/ACCUSED 3 AND 4: ``` ``` 1SOUMYA AGED 38 YEARS W/O SURESH, PALLAMATTAM HOUSE, CUMBUMMETTU P.O., KARUNAPURAM VILLAGE, IDUKKI., PIN - 685551 2THANKAMMA AGED 72 YEARS W/O MANI PALLAMATTAM HOUSE, CUMBUMMETTU P O, KARUNAPURAM VILLAGE, IDUKKI., PIN - 685551 BY ADVS. P.CHANDY JOSEPH C.K.VIDYASAGAR ``` ## **`RESPONDENT/STATE:`** - **`1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM DISTRICT, PIN - 682031`** - **`2 STATION HOUSE OFFICER CUMBUMMETTU POLICE STATION, IDUKKI DISTRICT, PIN - 685551`** ``` BY SR.PP SMT.NEEMA T V ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON ``` ``` 18.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` B.A.No.5335 of 2024 ``` ``` 2 ``` ## **`ORDER`** ## **Dated this the 18[th] day of July, 2024** 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 3 and 4 in Crime No.366/2024 of the Cumbummettu Police Station, Idukki, which is registered against the accused for allegedly committing the offences punishable under Sections 294(b), 323, 324 and 326 read with Section 34 of the Indian Penal Code, 1860 (for short ‘the IPC’). 3. The essence of the prosecution case is that: on 12.05.2024, at around 17.30 hours, the 1[st] accused and his sister, who are the children of the 3[rd] accused, had blocked the road of the defacto complainant and uttered obscene words at him. Then, the accused 1, 5 ``` 3 ``` ## **`B.A.No.5335 of 2024`** and 6 went to the house of the defacto complainant and assaulted him and he suffered a fracture of his rib. Thereafter, the 2[nd] accused had assaulted the defacto complainant on his head with a soda bottle and the other accused fisted and beat him. Thus, the accused have committed the above offences. 4. Heard; Sri.P.Chandy Joseph, 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 First Information Report would substantiate that the only overt act alleged against the petitioners is that they uttered obscene words at the defacto complainant. The specific overt act of committing the offence under Section 326 IPC is attributed against the 1[st] accused, who allegedly ``` B.A.No.5335 of 2024 ``` ``` 4 ``` assaulted the defacto complainant and he suffered a fracture. In fact, in the very same incident AnnexureA2 FIR has been registered against the defacto complainant. The petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. Therefore, the application may be allowed. 6. The learned Senior Public Prosecutor opposed the application. She submitted that the investigation in the case is in progress. She also stated that if the petitioners are released on bail, there is every likelihood of them tampering with the evidence and intimidating the witnesses. Hence, she submitted that the application may be dismissed. Nonetheless, she did not dispute the fact that the specific overt act of committing the offence under Section 326 IPC is attributed against the 1[st] accused, who assaulted the defacto complainant and he ``` B.A.No.5335 of 2024 ``` ``` 5 ``` suffered a fracture of his right rib. The allegation against the petitioners is that they uttered obscene words at the defacto complainant . 7. On an evaluation of the materials placed on records, it can be seen that the only allegation against the petitioners is that they uttered obscene words at the defacto complainant. The allegation regarding commission of the offence under Section 326 IPC, which is the only non-bailable offence, is attributed against the 1[st] accused who hit the defacto complainant and he suffered a fracture on his rib. 8. On an overall appreciation of the facts, the rival submissions made across the Bar, and the materials placed on record, particularly considering the fact that there is no specific overt act alleged against the petitioners so as to attribute the offence under Section 326 IPC, though that is a matter to be investigated and decided at the time of the trial, I am ``` 6 ``` ## **`B.A.No.5335 of 2024`** of the firm view that the petitioners’ custodial interrogation is not necessary. Hence, I hold that the petitioners are entitled to an order of pre-arrest bail; subject to the condition that they co-operate with the Investigating Officer. In the result, the application is allowed subject to the following conditions: - (i) The petitioners are directed to surrender before the Investigating Officer within 10 days from today. - (ii) In the event of the petitioners’ arrest, the Investigating Officer shall release the petitioners 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 shall appear before the Investigating Officer for interrogation, as and when directed by the Investigating Officer. ``` B.A.No.5335 of 2024 ``` ``` 7 ``` - (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 him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever; - (v) The petitioners shall surrender their passports before the jurisdictional court concerned within a period of one week from the date of their release on bail. If they have no passports, they shall file affidavits to the effect before the 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. ``` B.A.No.5335 of 2024 ``` ``` 8 ``` - (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 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** NAB