Sumith v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 3[RD] DAY OF APRIL 2024 / 14TH CHAITHRA, 1946 BAIL APPL. NO. 1007 OF 2024 CRIME NO.1657/2023 OF Kadakkavoor Police Station, ``` ## **`Thiruvananthapuram`** ``` AGAINST THE ORDER DATED 12.01.2024 IN CRMC NO.3416 OF 2023 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT - IV, THIRUVANANTHAPURAM / I ADDITIONAL MACT ``` ## **`PETITIONER/SECOND ACCUSED:`** ``` SUMITH, AGED 33 YEARS S/O. SUNILKUMAR,PATTARUVILAKAM, NILAKKAMUKKU, KADAKKAVOOR P.O., THIRUVANANTHAPURAM DISTRICT, PIN - 695306 ``` ``` BY ADV SHAJIN S.HAMEED ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 ``` ## **`OTHER PRESENT:`** ## **`SR PP SMT NEEMA T V`** ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 03.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` B.A.No.1007 of 2024 ## -:2:- ## **O R D E R** Dated this the 3[rd] day of April, 2024 The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of prearrest bail. 2. The petitioner is the second accused in Crime No.1657/2023 of Kadakkavoor Police Station, Thiruvananthapuram, registered against the accused ( three in number) for allegedly committing the offences punishable under Sections 341, 427, 294(b), 323, 324 & 307 r/w Section 34 of Indian Penal Code. 3. The prosecution case is that; on 10.12.2023 at about 22.00 hours, while the accused were seated in the KTDC Beer Parlour, Vakkom, the defacto complainant overheard the accused speaking that they were involved in crime No.1650/2023 of the same ## B.A.No.1007 of 2024 -:3:- police station. When the defacto complainant approached the accused and attempted to make enquiries about the crime, the accused escaped in a car. Then, the defacto complainant immediately informed the police station, and the police party followed the car and apprehended the accused. Then, the first accused used an iron rod and hit the defacto complainant and his friend. The defacto complainant suffered two lacerated wounds of 12 x 2 cm and 15 x 2 cm on his scalp. Thus, the accused have committed the above offences. 4. Heard; Sri.Shajin S. Hameed, the learned counsel appearing for the petitioner and Smt. Neema.T.V., the learned Senior Public Prosecutor appearing for the respondent. 5. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusation levelled against him. A reading of Annexure B.A.No.1007 of 2024 ## -:4:- A FIR would substantiate the fact that there is no specific overt act alleged against the petitioner so as to attract offence 307 of the IPC. The said offence was committed by the first accused, who assaulted the defacto complainant with an iron rod and inflicted an injury on his head. In fact, the first accused was arrested on 12.12.2023 and he was enlarged on bail by Annexure D order by this Court. The only overt act alleged against the petitioner is that he accompanied the first accused and caused damage to the vehicle of the defacto complainant. Therefore, the offence under Section 307 will not be attracted. The petitioner’s custodial is not and no interrogation necessary, recovery is to be effected. Therefore, the application may be allowed. 6. The learned Public Prosecutor opposed the application. She submitted that the accused had, in furtherance of their common intention, assaulted the B.A.No.1007 of 2024 -:5:- defacto complainant and his friend. Nonetheless, she conceded to the fact that it was the first accused who assaulted the defacto complainant with an iron rod and caused him a head injury. She stated that the petitioner's custodial interrogation is necessary for a proper and full investigation of the crime. Hence, the application may be dismissed. 7. On an analysis of the materials placed on record, especially considering Annexure A FIR and also the findings of this Court in Annexure D order dated 31.01.2024 in B.A. No.616/2024 it can be gathered that the specific allegation is against the first accused, who used an iron rod and hit the defacto complainant and caused injuries to him. The specific overt alleged against the petitioner is that he caused damage to the vehicle of the defacto complainant. 8. On an overall consideration of the facts, the submissions made across the Bar and the materials B.A.No.1007 of 2024 ## -:6:- placed on record, especially on comprehending that it was the first accused who caused injuries to the defacto complainant, and the specific overt alleged against the petitioner is that he caused damage to the vehicle of the defcto complainant, I am of the view that the petitioner’s custodial interrogation is not necessary and no recovery is to be effected. Therefore, I hold that the petitioner is entitled to an order of pre-arrest bail, but subject to the condition that the petitioner cooperates with the Investigating Officer. In the result, the application is allowed subject to the 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 B.A.No.1007 of 2024 -:7:- 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 witnesses or interfere with the investigation in any manner; vi). 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; (vii) The petitioner shall not get involved in any other offence while on bail. viii). In case of violation of any of the conditions mentioned above, the jurisdictional court shall be B.A.No.1007 of 2024 ## -:8:- 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 Court in **Sushila Aggarwal v. State (NCT of Delhi) and another [2020 (1) KHC 663].** Sd/- ## **C.S.DIAS,JUDGE** mtk/03.04.24 B.A.No.1007 of 2024 ## -:9:- ## **`APPENDIX OF BAIL APPL. 1007/2024`** |**`PETITIONER`**|**`ANNEXURES`**|| |---|---|---| |**`Annexure-A`**|**`PHOTOCOPY OF THE FIR IN CRIME NO.`**|| ||**`1657/2023`**<br>**`OF`**<br>**`KADAKKAVOOR`**|**`POLICE`**| ||**`STATION.`**|| |**`Annexure-B`**|**`PHOTOCOPY OF THE REMAND REPORT`**|**`OF THE`**| ||**`1ST ACCUSED IN CRIME NO.1657/2023 OF`**|| ||**`KADAKKAVOOR POLICE STATION.`**|| |**`Annexure-C`**|**`PHOTOCOPY OF THE FIR IN `**|**`CRIME`**| ||**`NO.1658/2023 OF KADAKKAVOOR `**|**`POLICE`**| ||**`STATION.`**|| |**`Annexure-D`**|**`PHOTOCOPY OF THE ORDER DATED 31/01/2023`**|| ||**`IN B.A.NO.616/2024 OF THIS HONOURABLE`**|| ||**`COURT .`**|| |**`Annexure-E`**|**`PHOTOCOPY OF THE OUTPATIENT `**|**`RECORD`**| ||**`DATED 11/12/2023 ISSUED FROM`**|**`MEDICAL`**| ||**`COLLEGE HOSPITAL, THIRUVANANTHAPURAM.`**|| |**`Annexure-F`**|**`FREE COPY OF THE ORDER DATED 12/01/2023`**|| ||**`IN`**<br>**`CRL.M.C.NO.3416/2023`**<br>**`OF`**|**`THE`**| ||**`ADDITIONAL`**<br>**`SESSIONS`**<br>**`COURT-IV,`**|| ||**`THIRUVANANTHAPURAM.`**||