High Court of KeralaSingle Judge2024-07-23Allowed; Pre-arrest bail granted to accused 2 a...

Sundharan and Suneesh v. State of Kerala

Case / Petition Number:B.A.No.5560 of 2024

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: C.S. Dias
Judgment Date: 2024-07-23
Court Decision / Holding: The application is allowed; pre-arrest bail granted to petitioners 2 and 3 subject to conditions: surrender before IO within 10 days; bond of Rs. 50,000 with two solvent sureties of like amount; appearance for interrogation as directed; no inducement/tampering; surrender of passports; no new offences; possible cancellation on violation; and the investigation may proceed as necessary. The order notes that offences under 307 and 326 may not be attracted at this stage but this will be a matter for trial, and explicitly cites Sushila Aggarwal v. State (NCT of Delhi) And another for guiding bail conditions.
Final Disposition: Allowed; Pre-arrest bail granted to accused 2 and 3 under Section 438 CrPC with conditions as listed.

Parties to the Case

Appellants / Petitioners

Sundharan
Suneesh

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala

Legal Representation & Advocates

Counsels for Petitioners

• Binu V V Veettil Valappil
• Maneksha D.

Counsels for Respondents

• C S Hrithwik

Case Synopsis & Summary

This is a bail application under section 438 CrPC filed by accused 2 and 3 in Crime No. 713/2024 of Kuttippuram Police Station, Malappuram. The matter concerns alleged offences under sections 341, 323, 324, 326, 307, 294(b) and 506 read with section 34 IPC arising from an incident on 02.04.2024, when a verbal altercation with the defacto complainant’s family escalated into violence. The prosecution asserts that the first accused attacked the defacto complainant’s brother with a nunchaku causing grievous injuries, while accused 2 and 3 assaulted the defacto complainant and his brother and abused the wife of the defacto complainant. The petitioners contend that they are innocent as to the charges against them, argue that custodial interrogation is unnecessary, and emphasize lack of recovery; they seek pre-arrest bail. The Public Prosecutor counters that incriminating materials exist and that granting bail could hamper the investigation, especially with respect to the second accused’s use of a weapon. The court notes that the explicit overt act involving a weapon is attributed to the first accused, while the petitioners are alleged to have used only their hands and to have uttered obscene words. On balance, the court prima facie considers that offences under 307 and 326 may not be attracted against the petitioners, though trial will determine this. Ultimately, the court grants pre-arrest bail subject to conditions including surrender within 10 days, bond and sureties, cooperation with the investigating officer, no tampering with evidence, passport surrender, prohibition from new offences, and possible cancellation on violation, citing Sushila Aggarwal v. State (NCT of Delhi) and another for the procedural framework.

Provisions of Law Cited

Section 438 of the Code of Criminal Procedure, 1973Sections 341, 323, 324, 326, 307, 294(b) and 506 read with Section 34 of the Indian Penal Code

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants submit that they are completely innocent of the accusations; Annexure A1 FIR details show the first accused alone attacked the defacto complainant with a nunchak and caused grievous injuries, while the petitioners are alleged to have assaulted with their hands and to have abused the defacto complainant’s wife. They contend custodial interrogation is unnecessary, no recovery is required, and a pre-arrest bail should be granted.

Contentions of Respondents

The State opposes bail, contending that there are incriminating materials linking the petitioners to the offence; the second accused is alleged to have used a weapon; granting bail would hamper the ongoing investigation; hence bail should be refused.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Sushila Aggarwal v. State (NCT of Delhi) and another	2020 (1) KHC 663	Positive	Cited as a Supreme Court precedent for the framework of bail conditions and the approach to ensuring investigation integrity while granting bail.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 ``` ``` BAIL APPL. NO. 5560 OF 2024 ``` ``` CRIME NO.713/2024 OF KUTTIPURAM POLICE STATION, MALAPPURAM AGAINST THE ORDER DATED 18.06.2024 IN CRMC NO.778 OF 2024 OF DISTRICT COURT& SESSIONS COURT,MANJERI ``` ## **`PETITIONERS/ACCUSED 2 AND 3:`** - **`1 SUNDHARAN AGED 42 YEARS`** ``` S/O MUNDAN, ANTHURA PARAMBIL HOUSE, NADUVATTOM POST, KOLATHOL, TIRUR TALUK, MALAPPURAM DISTRICT., PIN - 679571 ``` - **`2 SUNEESH AGED 39 YEARS`** ``` S/O MUNDAN, ANTHURA PARAMBIL HOUSE, NADUVATTOM POST, KOLATHOL, TIRUR TALUK, MALAPPURAM DISTRICT., PIN - 679571 ``` ``` BY ADVS. BINU V V VEETTIL VALAPPIL MANEKSHA D. ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 ``` ``` BY SRI C S HRITHWIK SENIOR PUBLIC PROSECUTOR ``` ``` THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 23.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` B.A.No.5560 of 2024 -:2:- Dated this the 23[rd] day of July, 2024 ## **O R D E R** The application is filed under Section 438 of the Code of Criminal Procedure, 1973, for an order of pre-arrest bail. 2. The petitioners are the accused 2 and 3 in Crime No.713/2024 of the Kuttippuram Police Station, Malappuram, registered against the accused (three in number) for allegedly committing the offences punishable under Sections 341, 323, 324, 326, 307, 294(b) and 506 r/w Section 34 of the Indian Penal Code. 3. The essence of the prosecution allegation is that; on 02.04.2024, at around 19.30 hours, the accused, in furtherance of their common intention, had a verbal altercation with the family of the defacto complainant, and when the brother of the defacto complainant intervened to enquire about the matter, B.A.No.5560 of 2024 -:3:- the accused attacked him. Subsequently, the accused wrongfully restrained the defacto complainant’s brother, and with an intention to murder the defacto complainant, the first accused hit him on his left shoulder with a nunchak, and inflicted injuries on him. Then, the accused 2 and 3 beat the defacto complaint with their hands and uttered obscene words against the wife of the defacto complainant. Thus, the accused have committed the above offences. 4. Heard; Sri.Binu V.V, the learned counsel appearing for the petitioners and Sri. C.S. Hrithwik, the learned 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 the allegations in Annexure A1 FIR substantiates that the specific overt acts are alleged against the first accused, who attacked the defacto complainant with a nunchak and caused grievous injuries on him. The allegation B.A.No.5560 of 2024 -:4:- against the petitioners is that they attacked the defacto complainant with their hands and abused the wife of the defacto complainant. The petitioners’ custodial interrogation is not necessary, and no recovery is to be effected. Hence, the application may be allowed. 6. The learned Public Prosecutor opposed the application. He submitted that there are incriminating materials to substantiate the petitioners' involvement in the crime. He stated that the second accused also used the weapon and assaulted the defacto complainant. If the petitioners are granted an order of pre-arrest bail, it would hamper the investigation. Hence, the application may be dismissed. 7. On an overall scrutiny of the materials on record, it can be gathered that, the specific overt act is alleged against the first accused, who used a nunchak and caused injuries to the defacto complainant and his brother. The allegation against the petitioners is that they used their hands, assaulted the B.A.No.5560 of 2024 -:5:- defacto complainant and his brother, and abused the defacto complainant’s wife with obscene language. On a prima facie appreciation of the materials on record, I am of the view that the offences under Sections 307 and 326 of the IPC may not be attracted against the petitioners. However, that is a matter to be investigated and ultimately decided at the time of trial. 8. On an anxious consideration of the facts, the rival submissions made across the Bar and the materials placed on record, especially on considering that the only overt act alleged against the petitioners is that they used their hands and assaulted the defacto complainant and his brother, and abused the defacto complainant’s wife with obscene language, I am satisfied that the petitioners have made out valid grounds entitling them to an order of pre-arrest bail. Hence, I am inclined to pass an order of pre-arrest bail; subject to the condition that they cooperate with the Investigating Officer. B.A.No.5560 of 2024 -:6:- 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 their executing a bond for Rs.50,000/(Rupees fifty thousand only) each 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. - (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 B.A.No.5560 of 2024 -:7:- 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 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. - (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 B.A.No.5560 of 2024 -:8:- 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** mtk/23.07.24