State of Kerala v. Ashokan, Akash and Suryan

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 8[TH] DAY OF APRIL 2024 / 19TH CHAITHRA, 1946 ``` ``` BAIL APPL. NO. 2292 OF 2024 ``` ``` CRIME NO.0300/2024 OF Chathannoor Police Station, Kollam ORDER DATED 14.03.2024 IN CMP NO.362 OF 2024 OF JUDICIAL ``` ``` FIRST CLASS MAGISTRATE COURT - II, PARAVUR ``` ## **`PETITIONERS/ACCUSED A1 TO A3:`** - **`1 ASHOKAN, AGED 58 YEARS AKASH BHAVAN,MEENADU EAST, CHATHANNUR,KOLLAM DISTRICT, PIN - 691579`** - **`2 AKASH, AGED 25 YEARS AKASH BHAVAN,MEENADU EAST,CHATHANNUR,KOLLAM DISTRICT,, PIN - 691579`** - **`3 SURYAN, AGED 26 YEARS AKASH BHAVAN,MEENADU EAST,CHATHANNUR,KOLLAM DISTRICT, PIN - 691579`** ``` BY ADVS. M.R.SASITH NANMA.B.B ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM, PIN - 682031 ``` ``` SMT.SEETHA S, SR.PP ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 08.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` BAIL APPL. NO. 2292 OF 2024 2 ``` ## **ORDER** The application is filed under Section 439 of the Code of Criminal Procedure, 1973, by the accused 1 to 3 in Crime No.300/2024 of Chathannoor Police Station, Kollam, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 341, 323, 324, 307 and 506 r/w 34 of the Indian Penal Code, 1860 (in short, ‘IPC’). The petitioners were arrested on 13.3.2024. 2. The essence of the prosecution case is that: on 12.3.2024, at around 21.30 hours, the accused, in furtherance of their common intention, formed themselves into an unlawful assembly and wrongfully restrained the de-facto complainant and the 1[st] accused cut him on the back of his head with a knife and when the de facto complainant fell down, the accused Nos.2 and 3 assaulted him. Thus the accused have committed the above offences. ``` BAIL APPL. NO. 2292 OF 2024 3 ``` 3. Heard; Sri. M.R Sasith, the learned counsel appearing for the petitioners and Smt. Seetha S, the learned Public Prosecutor appearing for the respondent. 4. The learned counsel for the petitioners submitted that the petitioners are totally innocent of the accusations levelled against them. The Investigating Officer has deliberately incorporated Section 307 of the IPC to deny bail to the petitioners. In any given case, the petitioners have been in judicial custody since 13.03.2024, the investigation in the case is complete and the recovery has been effected. Therefore, the petitioners further detention is not necessary. Hence, the petitioners may be released on bail. 5. The learned Public Prosecutor opposed the application. The Investigating Officer has filed a bail objection report. The investigation Officer has stated that the investigation is still in progress. The petitioners are the accused in Crime Nos.145/2022 and 904/2022 of the Chathannoor Police Station registered for committing the offences under Section 341 and also under the NDPS Act. ``` BAIL APPL. NO. 2292 OF 2024 4 ``` It was the 1[st] petitioner who inflicted the grievous injury on the de facto complainant with a sharp knife out of his previous animosity with the de facto complainant. If the petitioners are released on bail, they would intimidate the witnesses and tamper with the evidence. Hence the application be dismissed. 6. A reading of the materials on record would show that the accused 1 to 3 in furtherance of their common intention had assaulted the de facto complainant and the 1[st] accused inflicted grievous injuries on the defacto complainant. 7. In **Prasanta Kumar Sarkar v. Ashis Chatterjee and Anr.** [(2010) 14 SCC 496], the Honourable Supreme Court has observed as follows: “9. …...... It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation: (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of ``` BAIL APPL. NO. 2292 OF 2024 5 ``` the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail.” ## 8. Subsequently, in **Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and another** [(2005) 2 SCC 42], the Hon'ble Supreme Court has observed that, while considering a bail application, a detailed examination of the evidence and elaborate documentation of the merits of the case need not be undertaken. Nonetheless, the nature of the accusation, the severity of the punishment, the reasonable apprehension of the accused tampering with the evidence or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge should be looked into. It is also explicitly observed that the mere fact that the accused has undergone a certain period of incarceration or that the trial is not likely to be concluded in the near future by itself would not entitle the accused to be enlarged on bail, especially when the gravity of the offence is severe, and there is an allegation of tampering ``` BAIL APPL. NO. 2292 OF 2024 6 ``` ## with the evidence by the accused. ## 9. In **Mahipal v. Rajesh Kumar** [(2020) 2 SCC 118], ## the Hon'ble Supreme Court has held thus: “12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused. That is a matter for trial. However, the Court is required to examine whether there is a prima facie or reasonable ground to believe that the accused had committed the offence and on a balance of the considerations involved, the continued custody of the accused subserves the purpose of the criminal justice system. Where bail has been granted by a lower court, an appellate court must be slow to interfere and ought to be guided by the principles set out for the exercise of the power to set aside bail.” ## 10. On an anxious consideration of the facts, the ``` BAIL APPL. NO. 2292 OF 2024 7 ``` rival submissions made across the Bar, the materials placed on record and the proclamation of law in the aforesaid decisions, and on comprehending the nature seriousness and gravity of the accusations levelled against the 1[st] petitioner/1[st] accused, the potential severity of the punishment that is likely to be imposed on him and the reasonable apprehension projected by the prosecution that he is likely to tamper with the evidence and intimidate the witnesses, I am satisfied that the 1[st] accused/1st petitioner is not entitled to be released on bail. However, considering the fact that there is no overt act alleged against the petitioners 2 and 3/accused 2 and 3, I am satisfied that they can be released on bail. In the result, the application filed by the 1[st] petitioner/1st accused is dismissed. The application filed by petitioners 2 and 3/accused 2 and 3 is allowed, by directing the petitioners 2 and 3 to be released on bail on them executing a bond for Rs.1,00,000/- (Rupees One lakh only) each with two solvent sureties each for the like sum, to the satisfaction of the court having jurisdiction, which ``` BAIL APPL. NO. 2292 OF 2024 8 ``` shall be subject to the following conditions: - (i) The petitioners shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. They shall also appear before the Investigating Officer as and when required; - (ii) 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; - (iii) The petitioners shall not commit any offence while they are on bail; - (iv) The petitioners shall surrender their passports, if before the court below at the time of - any, execution of the bonds. If they have no passport, they shall file affidavits to the effect before the court below on the date of execution of the bonds; - (v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the applications for cancellation of bail, if any filed, and pass orders on the same, in accordance with law. - (vi) Applications for deletion/modification of the bail ``` BAIL APPL. NO. 2292 OF 2024 9 ``` conditions shall be moved and entertained by the court below. (vii) 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]. ``` Sd/- ``` **C.S.DIAS JUDGE** Sru ``` BAIL APPL. NO. 2292 OF 2024 10 ``` ## **`APPENDIX OF BAIL APPL. 2292/2024`** ``` PETITIONER ANNEXURES Annexure 1TRUE COPY OF THE FIR NO NO.0300/2024 OF CHATHANNUR POLICE STATION. Annexure 2TRUE COPY OF ORDER IN CMP NO 362/2024. ```